BACKGROUND ON THE BILL OF RIGHTS
Leon, (4) Asencion Paciente, (5)
Concept and Origin
1) PBM Employees Org. vs. PBM Co., Inc. [51 SCRA 189
(1973)]
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees
Organization (hereinafter referred to as PBMEO) is a
legitimate labor union composed of the employees of
the respondent Philippine Blooming Mills Co., Inc.,
and petitioners Nicanor Tolentino, Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu and
Rodulfo Munsod are officers and members of the
petitioner Union.
Petitioners claim that on March 1, 1969, they decided
to stage a mass demonstration at Malacañang on
March 4, 1969, in protest against alleged abuses of
the Pasig police, to be participated in by the workers
in the first shift (from 6 A.M. to 2 P.M.) as well as
those in the regular second and third shifts (from 7
A.M. to 4 P.M. and from 8 A.M. to 5 P.M.,
respectively); and that they informed the respondent
Company of their proposed demonstration.
The questioned order dated September 15, 1969, of
Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation
of facts of the parties — parties —
3. That on March 2, 1969 complainant
company learned of the projected
mass demonstration at Malacañang in
protest against alleged abuses of the
Pasig Police Department to be
participated by the first shift (6:00 AM-
2:00 PM) workers as well as those
working in the regular shifts (7:00 A.M.
to 4:00 PM and 8:00 AM to 5:00 PM)
in the morning of March 4, 1969;
4. That a meeting was called by the
Company on March 3, 1969 at about
11:00 A.M. at the Company's canteen,
and those present were: for the
Company: (1) Mr. Arthur L. Ang (2)
Atty. S. de Leon, Jr., (3) and all
department and section heads. For
the PBMEO (1) Florencio Padrigano,
(2) Rufino Roxas, (3) Mariano de
Bonifacio Vacuna and (6) Benjamin
Pagcu.
5. That the Company asked the union
panel to confirm or deny said
projected mass demonstration at
Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who
acted as spokesman of the union
panel, confirmed the planned
demonstration and stated that the
demonstration or rally cannot be
cancelled because it has already been
agreed upon in the meeting. Pagcu
explained further that the
demonstration has nothing to do with
the Company because the union has
no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S.
de Leon, Company personnel
manager, informed PBMEO that the
demonstration is an inalienable right of
the union guaranteed by the
Constitution but emphasized,
however, that any demonstration for
that matter should not unduly
prejudice the normal operation of the
Company. For which reason, the
Company, thru Atty. C.S. de Leon
warned the PBMEO representatives
that workers who belong to the first
and regular shifts, who without
previous leave of absence approved
by the Company, particularly , the
officers present who are the
organizers of the demonstration, who
shall fail to report for work the
following morning (March 4, 1969)
shall be dismissed, because such
failure is a violation of the existing
CBA and, therefore, would be
amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3,
1969, another meeting was convoked
Company represented by Atty. C.S. de
Leon, Jr. The Union panel was
composed of: Nicanor Tolentino,
Rodolfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company
reiterated and appealed to the
PBMEO representatives that while all
workers may join the Malacañang
 demonstration, the workers for the first
and regular shift of March 4, 1969
should be excused from joining the
demonstration and should report for
work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to
violate the provisions of the CBA,
particularly Article XXIV: NO
LOCKOUT — NO STRIKE'. All those
who will not follow this warning of the
Company shall be dismiss; De Leon
reiterated the Company's warning that
the officers shall be primarily liable
being the organizers of the mass
demonstration. The union panel
countered that it was rather too late to
change their plans inasmuch as the
Malacañang demonstration will be
held the following morning; and
8. That a certain Mr. Wilfredo Ariston,
adviser of PBMEO sent a cablegram
to the Company which was received
9:50 A.M., March 4, 1969, the
contents of which are as follows:
'REITERATING REQUEST EXCUSE
DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.'
(Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members
numbering about 400 proceeded with the
demonstration despite the pleas of the respondent
Company that the first shift workers should not be
required to participate in the demonstration and that
the workers in the second and third shifts should be
utilized for the demonstration from 6 A.M. to 2 P.M. on
March 4, 1969, respondent Company prior notice of
the mass demonstration on March 4, 1969, with the
respondent Court, a charge against petitioners and
other employees who composed the first shift,
charging them with a "violation of Section 4(a)-6 in
relation to Sections 13 and 14, as well as Section 15,
all of Republic Act No. 875, and of the CBA providing
for 'No Strike and No Lockout.' " (Annex "A", pp. 19-
20, rec.). The charge was accompanied by the joint
affidavit of Arthur L. Ang and Cesareo de Leon, Jr.
(Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18,
1969, by Acting Chief Prosecutor Antonio T. Tirona
and Acting Prosecutor Linda P. Ilagan (Annex "C", pp.
25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners
claim that they did not violate the existing CBA
because they gave the respondent Company prior
notice of the mass demonstration on March 4, 1969;
that the said mass demonstration was a valid exercise
of their constitutional freedom of speech against the
alleged abuses of some Pasig policemen; and that
their mass demonstration was not a declaration of
strike because it was not directed against the
respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of
facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969,
found herein petitioner PBMEO guilty of bargaining in
bad faith and herein petitioners Florencio Padrigano,
Rufino Roxas, Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu, Nicanor
Tolentino and Rodulfo Munsod as directly responsible
for perpetrating the said unfair labor practice and
were, as a consequence, considered to have lost their
status as employees of the respondent Company
(Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on
September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because
September 28, 1969 fell on Sunday (p. 59, rec.), a
motion for reconsideration of said order dated
September 15, 1969, on the ground that it is contrary
to law and the evidence, as well as asked for ten (10)
days within which to file their arguments pursuant to
Sections 15, 16 and 17 of the Rules of the CIR, as
amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on
October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September
22, 1969, the order dated September 17 (should be
September 15), 1969; that under Section 15 of the
amended Rules of the Court of Industrial Relations,
herein petitioners had five (5) days from September
22, 1969 or until September 27, 1969, within which to
file their motion for reconsideration; and that because
their motion for reconsideration was two (2) days late,
it should be accordingly dismissed, invoking Bien vs.
Castillo,  which held among others, that a motion for
1
extension of the five-day period for the filing of a
motion for reconsideration should be filed before the
said five-day period elapses (Annex "M", pp. 61-64,
rec.).
Subsequently, herein petitioners filed on October 14,
1969 their written arguments dated October 11, 1969,
in support of their motion for reconsideration (Annex
"I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the
respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro
forma as it was filed beyond the reglementary period
prescribed by its Rules (Annex "J", pp. 74-75, rec.),
which herein petitioners received on October 28, 196
(pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October
9, 1969, which was released on October 24, 1969 and
addressed to the counsels of the parties (pp. 75-76,
rec.), appear the requirements of Sections 15, 16 and
17, as amended, of the Rules of the Court of
Industrial Relations, that a motion for reconsideration
shall be filed within five (5) days from receipt of its
decision or order and that an appeal from the
decision, resolution or order of the C.I.R., sitting en
banc, shall be perfected within ten (10) days from
receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the
respondent court a petition for relief from the order
dated October 9, 1969, on the ground that their failure
to file their motion for reconsideration on time was
due to excusable negligence and honest mistake
committed by the president of the petitioner Union
and of the office clerk of their counsel, attaching
thereto the affidavits of the said president and clerk
(Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for
relief from the order dated October 9, 1969, herein
petitioners filed on November 3, 1969, with the
Supreme Court, a notice of appeal (Annex "L", pp. 88-
89, rec.).
I appropriate governmental officers or agencies for
There is need of briefly restating basic concepts and
principles which underlie the issues posed by the
case at bar.
(1) In a democracy, the preservation and
enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal
article of faith of our civilization. The inviolable
character of man as an individual must be "protected
to the largest possible extent in his thoughts and in
his beliefs as the citadel of his person."
2 space to survive," permitting government regulation
(2) The Bill of Rights is designed to preserve the
ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the
passing hour, the erosion of small encroachments,
and the scorn and derision of those who have no
patience with general principles."3
In the pithy language of Mr. Justice Robert Jackson,
the purpose of the Bill of Rights is to withdraw "certain
subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and
officials, and to establish them as legal principles to
be applied by the courts. One's rights to life, liberty
and property, to free speech, or free press, freedom
of worship and assembly, and other fundamental
rights may not be submitted to a vote; they depend on
the outcome of no elections."  Laski proclaimed that
4
"the happiness of the individual, not the well-being of
the State, was the criterion by which its behaviour
was to be judged. His interests, not its power, set the
limits to the authority it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as
well as the right to petition are included among the
immunities reserved by the sovereign people, in the
rhetorical aphorism of Justice Holmes, to protect the
ideas that we abhor or hate more than the ideas we
cherish; or as Socrates insinuated, not only to protect
the minority who want to talk, but also to benefit the
majority who refuse to listen.  And as Justice Douglas
6
cogently stresses it, the liberties of one are the
liberties of all; and the liberties of one are not safe
unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and
petition, are not only civil rights but also political rights
essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.
Thru these freedoms the citizens can participate not
merely in the periodic establishment of the
government through their suffrage but also in the
administration of public affairs as well as in the
discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the
redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and
employees.
(5) While the Bill of Rights also protects property
rights, the primacy of human rights over property
rights is recognized.  Because these freedoms are
8
"delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions
may deter their exercise almost as potently as the
actual application of sanctions," they "need breathing
only "with narrow specificity." 9
Property and property rights can be lost thru
prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of
oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free
expression and of assembly occupy a preferred
position as they are essential to the preservation and
vitality of our civil and political institutions;   and such
10
priority "gives these liberties the sanctity and the
sanction not permitting dubious intrusions."  11
The superiority of these freedoms over property rights
is underscored by the fact that a mere reasonable or
rational relation between the means employed by the
law and its object or purpose — that the law is neither
arbitrary nor discriminatory nor oppressive — would
suffice to validate a law which restricts or impairs
property rights.   On the other hand, a constitutional
12
or valid infringement of human rights requires a more
stringent criterion, namely existence of a grave and
immediate danger of a substantive evil which the
State has the right to prevent. So it has been stressed
in the main opinion of Mr. Justice Fernando
in Gonzales vs. Comelec and reiterated by the writer
of the opinion in Imbong vs. Ferrer.   It should be
13
added that Mr. Justice Barredo in Gonzales vs.
Comelec, supra, like Justices Douglas, Black and
Goldberg in N.Y. Times Co. vs. Sullivan,   believes
14
that the freedoms of speech and of the press as well
as of peaceful assembly and of petition for redress of
grievances are absolute when directed against public
officials or "when exercised in relation to our right to
choose the men and women by whom we shall be
governed,"   even as Mr. Justice Castro relies on the
15
balancing-of-interests test.   Chief Justice Vinson is
16
partial to the improbable danger rule formulated by
Chief Judge Learned Hand, viz. — whether the
gravity of the evil, discounted by its improbability,
justifies such invasion of free expression as is
necessary to avoid the danger.  17
II
The respondent Court of Industrial Relations, after
opining that the mass demonstration was not a
declaration of strike, concluded that by their
"concerted act and the occurrence temporary
stoppage of work," herein petitioners are guilty
bargaining in bad faith and hence violated the
collective bargaining agreement with private
respondent Philippine Blooming Mills Co., inc.. Set
against and tested by foregoing principles governing a
democratic society, such conclusion cannot be
sustained. The demonstration held petitioners on
March 4, 1969 before Malacañang was against
alleged abuses of some Pasig policemen, not against
their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise
of their freedom expression in general and of their
right of assembly and petition for redress of
grievances in particular before appropriate
governmental agency, the Chief Executive, again the
police officers of the municipality of Pasig. They
exercise their civil and political rights for their mutual
aid protection from what they believe were police
excesses. As matter of fact, it was the duty of herein
private respondent firm to protect herein petitioner
Union and its members fro the harassment of local
police officers. It was to the interest herein private
respondent firm to rally to the defense of, and take up
the cudgels for, its employees, so that they can report
to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective
tasks enhance its productivity as well as profits.
Herein respondent employer did not even offer to
intercede for its employees with the local police. Was
it securing peace for itself at the expenses of its
workers? Was it also intimidated by the local police or
did it encourage the local police to terrorize or vex its
workers? Its failure to defend its own employees all
the more weakened the position of its laborers the
alleged oppressive police who might have been all the
more emboldened thereby subject its lowly
employees to further indignities.
In seeking sanctuary behind their freedom of
expression well as their right of assembly and of
petition against alleged persecution of local
officialdom, the employees and laborers of herein
private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them by
the Constitution — the untrammelled enjoyment of
their basic human rights. The pretension of their
employer that it would suffer loss or damage by
reason of the absence of its employees from 6 o'clock
in the morning to 2 o'clock in the afternoon, is a plea
for the preservation merely of their property rights.
Such apprehended loss or damage would not spell
the difference between the life and death of the firm or
its owners or its management. The employees'
pathetic situation was a stark reality — abused,
harassment and persecuted as they believed they
were by the peace officers of the municipality. As
above intimated, the condition in which the employees
found themselves vis-a-vis the local police of Pasig,
was a matter that vitally affected their right to
individual existence as well as that of their families.
Material loss can be repaired or adequately
compensated. The debasement of the human being
broken in morale and brutalized in spirit-can never be
fully evaluated in monetary terms. The wounds fester
and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial
of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights —
freedom of expression, of peaceful assembly and of
petition for redress of grievances — over property
rights has been sustained.   Emphatic reiteration of
18
this basic tenet as a coveted boon — at once the
shield and armor of the dignity and worth of the
human personality, the all-consuming ideal of our
enlightened civilization — becomes Our duty, if
freedom and social justice have any meaning at all for
him who toils so that capital can produce economic
goods that can generate happiness for all. To regard
the demonstration against police officers, not against
the employer, as evidence of bad faith in collective
bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal
from employment of the demonstrating employees,
stretches unduly the compass of the collective
bargaining agreement, is "a potent means of inhibiting
speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition.  19
The collective bargaining agreement which fixes the
working shifts of the employees, according to the
respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the
Court of Industrial Relations that a stipulated working
shifts deny the workers the right to stage mass
demonstration against police abuses during working
hours, constitutes a virtual tyranny over the mind and
life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated
on such a slender ground.
The mass demonstration staged by the employees on
March 4, 1969 could not have been legally enjoined
by any court, such an injunction would be trenching
upon the freedom expression of the workers, even if it
legally appears to be illegal picketing or strike.   The
20
respondent Court of Industrial Relations in the case at
bar concedes that the mass demonstration was not a
declaration of a strike "as the same not rooted in any
industrial dispute although there is concerted act and
the occurrence of a temporary stoppage work."
(Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for
all its employees to participate in the demonstration
and that they suggested to the Union that only the first
and regular shift from 6 A.M. to 2 P.M. should report
for work in order that loss or damage to the firm will
be averted. This stand failed appreciate the sine qua
non of an effective demonstration especially by a
labor union, namely the complete unity of the Union
members as well as their total presence at the
demonstration site in order to generate the maximum
sympathy for the validity of their cause but also
immediately action on the part of the corresponding
government agencies with jurisdiction over the issues
they raised against the local police. Circulation is one
of the aspects of freedom of expression.   If 21
demonstrators are reduced by one-third, then by that
much the circulation of the issues raised by the
demonstration is diminished. The more the
participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-
third of their members will be regarded as a
substantial indication of disunity in their ranks which
will enervate their position and abet continued alleged
police persecution. At any rate, the Union notified the
company two days in advance of their projected
demonstration and the company could have made
arrangements to counteract or prevent whatever
losses it might sustain by reason of the absence of its
workers for one day, especially in this case when the
Union requested it to excuse only the day-shift
employees who will join the demonstration on March
4, 1969 which request the Union reiterated in their
telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass
demonstration (pp. 42-43, rec.). There was a lack of
human understanding or compassion on the part of
the firm in rejecting the request of the Union for
excuse from work for the day shifts in order to carry
out its mass demonstration. And to regard as a
ground for dismissal the mass demonstration held
against the Pasig police, not against the company, is
gross vindictiveness on the part of the employer,
which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair
labor practice. Because the refusal on the part of the
respondent firm to permit all its employees and
workers to join the mass demonstration against
alleged police abuses and the subsequent separation
of the eight (8) petitioners from the service constituted
an unconstitutional restraint on the freedom of
expression, freedom of assembly and freedom
petition for redress of grievances, the respondent firm
committed an unfair labor practice defined in Section
4(a-1) in relation to Section 3 of Republic Act No. 875,
otherwise known as the Industrial Peace Act. Section
3 of Republic Act No. 8 guarantees to the employees
the right "to engage in concert activities for ... mutual
aid or protection"; while Section 4(a-1) regards as an
unfair labor practice for an employer interfere with,
restrain or coerce employees in the exercise their
rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass
demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their
mutual aid and protection against alleged police
abuses, denial of which was interference with or
restraint on the right of the employees to engage in
such common action to better shield themselves
against such alleged police indignities. The insistence
on the part of the respondent firm that the workers for
the morning and regular shift should not participate in
the mass demonstration, under pain of dismissal, was
as heretofore stated, "a potent means of inhibiting
speech." 22
Such a concerted action for their mutual help and
protection deserves at least equal protection as the
concerted action of employees in giving publicity to a
letter complaint charging bank president with
immorality, nepotism, favoritism an discrimination in
the appointment and promotion of ban
employees.   We further ruled in the Republic Savings
23
Bank case, supra, that for the employees to come
within the protective mantle of Section 3 in relation to
Section 4(a-1) on Republic Act No. 875, "it is not
necessary that union activity be involved or that
collective bargaining be contemplated," as long as the
concerted activity is for the furtherance of their
interests. 
24
As stated clearly in the stipulation of facts embodied
in the questioned order of respondent Court dated
September 15, 1969, the company, "while expressly
acknowledging, that the demonstration is an
inalienable right of the Union guaranteed by the
Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly
prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers
who belong to the first and regular shifts, who without
previous leave of absence approved by the Company,
particularly the officers present who are the
organizers of the demonstration, who shall fail to
report for work the following morning (March 4, 1969)
shall be dismissed, because such failure is a violation
of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's
brief). Such threat of dismissal tended to coerce the
employees from joining the mass demonstration.
However, the issues that the employees raised
against the local police, were more important to them
because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The
most that could happen to them was to lose a day's
wage by reason of their absence from work on the
day of the demonstration. One day's pay means much
to a laborer, more especially if he has a family to
support. Yet, they were willing to forego their one-day
salary hoping that their demonstration would bring
about the desired relief from police abuses. But
management was adamant in refusing to recognize
the superior legitimacy of their right of free speech,
free assembly and the right to petition for redress.
Because the respondent company ostensibly did not
find it necessary to demand from the workers proof of
the truth of the alleged abuses inflicted on them by
the local police, it thereby concedes that the evidence
of such abuses should properly be submitted to the
corresponding authorities having jurisdiction over their
complaint and to whom such complaint may be
referred by the President of the Philippines for proper
investigation and action with a view to disciplining the
local police officers involved.
On the other hand, while the respondent Court of
Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the
complainant company," the respondent Court of
Industrial Relations did not make any finding as to the
fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm
did not sustain any loss or damage. It did not present
evidence as to whether it lost expected profits for
failure to comply with purchase orders on that day; or
that penalties were exacted from it by customers
whose orders could not be filled that day of the
demonstration; or that purchase orders were
cancelled by the customers by reason of its failure to
deliver the materials ordered; or that its own
equipment or materials or products were damaged
due to absence of its workers on March 4, 1969. On
the contrary, the company saved a sizable amount in
the form of wages for its hundreds of workers, cost of
fuel, water and electric consumption that day. Such
savings could have amply compensated for
unrealized profits or damages it might have sustained
by reason of the absence of its workers for only one
day.
IV
Apart from violating the constitutional guarantees of
free speech and assembly as well as the right to
petition for redress of grievances of the employees,
the dismissal of the eight (8) leaders of the workers
for proceeding with the demonstration and
consequently being absent from work, constitutes a
denial of social justice likewise assured by the
fundamental law to these lowly employees. Section 5
of Article II of the Constitution imposes upon the State
"the promotion of social justice to insure the well-
being and economic security of all of the people,"
which guarantee is emphasized by the other directive
in Section 6 of Article XIV of the Constitution that "the
State shall afford protection to labor ...". Respondent
Court of Industrial Relations as an agency of the State
is under obligation at all times to give meaning and
substance to these constitutional guarantees in favor
of the working man; for otherwise these constitutional
safeguards would be merely a lot of "meaningless
constitutional patter." Under the Industrial Peace Act,
the Court of Industrial Relations is enjoined to effect
the policy of the law "to eliminate the causes of
industrial unrest by encouraging and protecting the
exercise by employees of their right to self-
organization for the purpose of collective bargaining
and for the promotion of their moral, social and
economic well-being." It is most unfortunate in the
case at bar that respondent Court of Industrial
Relations, the very governmental agency designed
therefor, failed to implement this policy and failed to
keep faith with its avowed mission — its raison
d'etre — as ordained and directed by the Constitution.
V
It has been likewise established that a violation of a
constitutional right divests the court of jurisdiction; and
as a consequence its judgment is null and void and
confers no rights. Relief from a criminal conviction
secured at the sacrifice of constitutional liberties, may
be obtained through habeas corpus proceedings even
long after the finality of the judgment. Thus, habeas
corpus is the remedy to obtain the release of an
individual, who is convicted by final judgment through
a forced confession, which violated his constitutional
right against self-incrimination;   or who is denied the
25
right to present evidence in his defense as a
deprivation of his liberty without due process of
law,   even after the accused has already served
26
sentence for twenty-two years.  27
Both the respondents Court of Industrial Relations
and private firm trenched upon these constitutional
immunities of petitioners. Both failed to accord
preference to such rights and aggravated the
inhumanity to which the aggrieved workers claimed
they had been subjected by the municipal police.
Having violated these basic human rights of the
laborers, the Court of Industrial Relations ousted itself
of jurisdiction and the questioned orders it issued in
the instant case are a nullity. Recognition and
protection of such freedoms are imperative on all
public offices including the courts   as well as private
28
citizens and corporations, the exercise and enjoyment
of which must not be nullified by mere procedural rule
promulgated by the Court Industrial Relations
exercising a purely delegate legislative power, when
even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights.
There is no time limit to the exercise of the freedoms.
The right to enjoy them is not exhausted by the
delivery of one speech, the printing of one article or
the staging of one demonstration. It is a continuing
immunity to be invoked and exercised when exigent
and expedient whenever there are errors to be
rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of
Rights would be vitiated by rule on procedure
prescribing the period for appeal. The battle then
would be reduced to a race for time. And in such a
contest between an employer and its laborer, the
latter eventually loses because he cannot employ the
best an dedicated counsel who can defend his
interest with the required diligence and zeal, bereft as
he is of the financial resources with which to pay for
competent legal services.  -a
28
VI
The Court of Industrial Relations rule prescribes that
motion for reconsideration of its order or writ should
filed within five (5) days from notice thereof and that
the arguments in support of said motion shall be filed
within ten (10) days from the date of filing of such
motion for reconsideration (Sec. 16). As above
intimated, these rules of procedure were promulgated
by the Court of Industrial Relations pursuant to a
legislative delegation. 
29
The motion for reconsideration was filed on
September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September
15, 1969 or two (2) days late. Petitioners claim that
they could have filed it on September 28, 1969, but it
was a Sunday.
Does the mere fact that the motion for reconsideration
was filed two (2) days late defeat the rights of the
petitioning employees? Or more directly and
concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural
rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated
pursuant to a legislative delegation, prevail over
constitutional rights? The answer should be obvious
in the light of the aforecited cases. To accord
supremacy to the foregoing rules of the Court of
Industrial Relations over basic human rights sheltered
by the Constitution, is not only incompatible with the
basic tenet of constitutional government that the
Constitution is superior to any statute or subordinate
rules and regulations, but also does violence to
natural reason and logic. The dominance and
superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule
of necessity should be affirmed. Such a Court of
Industrial Relations rule as applied in this case does
not implement or reinforce or strengthen the
constitutional rights affected,' but instead constrict the
same to the point of nullifying the enjoyment thereof
by the petitioning employees. Said Court of Industrial
Relations rule, promulgated as it was pursuant to a
mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days
within which to file a motion for reconsideration is too
short, especially for the aggrieved workers, who
usually do not have the ready funds to meet the
necessary expenses therefor. In case of the Court of
Appeals and the Supreme Court, a period of fifteen
(15) days has been fixed for the filing of the motion for
re hearing or reconsideration (See. 10, Rule 51; Sec.
1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court).
The delay in the filing of the motion for
reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact
accentuates the unreasonableness of the Court of
Industrial are concerned.
It should be stressed here that the motion for
reconsideration dated September 27, 1969, is based
on the ground that the order sought to be
reconsidered "is not in accordance with law, evidence
and facts adduced during the hearing," and likewise
prays for an extension of ten (10) days within which to
file arguments pursuant to Sections 15, 16 and 17 of
the Rules of the Court of Industrial Relations (Annex
"G", pp. 57-60, rec.); although the arguments were
actually filed by the herein petitioners on October 14,
1969 (Annex "I", pp. 70-73, rec.), long after the 10-
day period required for the filing of such supporting
arguments counted from the filing of the motion for
reconsideration. Herein petitioners received only on
October 28, 1969 the resolution dated October 9,
1969 dismissing the motion for reconsideration for
being pro forma since it was filed beyond the
reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a
motion to reconsider is filed out of time, or where the
arguments in suppf such motion are filed beyond the
10 day reglementary period provided for by the Court
of Industrial Relations rules, the order or decision
subject of -a reconsideration becomes final and
29
unappealable. But in all these cases, the
constitutional rights of free expression, free assembly
and petition were not involved.
It is a procedural rule that generally all causes of
action and defenses presently available must be
specifically raised in the complaint or answer; so that
any cause of action or defense not raised in such
pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for
the first time on appeal, if it appears that the
determination of the constitutional issue is necessary
to a decision of the case, the very lis mota of the case
without the resolution of which no final and complete
determination of the dispute can be made.   It is thus
30
seen that a procedural rule of Congress or of the
Supreme Court gives way to a constitutional right. In
the instant case, the procedural rule of the Court of
Industrial Relations, a creature of Congress, must
likewise yield to the constitutional rights invoked by
herein petitioners even before the institution of the
unfair labor practice charged against them and in their
defense to the said charge.
In the case at bar, enforcement of the basic human
freedoms sheltered no less by the organic law, is a
most compelling reason to deny application of a Court
of Industrial Relations rule which impinges on such
human rights.  -a 30
It is an accepted principle that the Supreme Court has
the inherent power to "suspend its own rules or to
except a particular case from its operation, whenever
the purposes of justice require."  -b Mr. Justice
30
Barredo in his concurring opinion in Estrada vs. Sto.
Domingo.  -c reiterated this principle and added that
30
Under this authority, this Court is
enabled to cove with all situations
without concerning itself about
procedural niceties that do not square
with the need to do justice, in any
case, without further loss of time,
provided that the right of the parties to
a full day in court is not substantially
impaired. Thus, this Court may treat
an appeal as a certiorari and vice-
versa. In other words, when all the
material facts are spread in the
records before Us, and all the parties
have been duly heard, it matters little
that the error of the court a quo is of
judgment or of jurisdiction. We can
then and there render the appropriate
judgment. Is within the contemplation
of this doctrine that as it is perfectly
legal and within the power of this
Court to strike down in an appeal acts
without or in excess of jurisdiction or
committed with grave abuse of
discretion, it cannot be beyond the
admit of its authority, in appropriate
cases, to reverse in a certain proceed
in any error of judgment of a court a
quo which cannot be exactly
categorized as a flaw of jurisdiction. If
there can be any doubt, which I do not
entertain, on whether or not the errors
this Court has found in the decision of
the Court of Appeals are short of
being jurisdiction nullities or excesses,
this Court would still be on firm legal
grounds should it choose to reverse
said decision here and now even if
such errors can be considered as
mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so
as to avoid the unnecessary return of
this case to the lower court for the sole
purpose of pursuing the ordinary
course of an appeal. (Emphasis
supplied).  -d
30
Insistence on the application of the questioned Court
industrial Relations rule in this particular case at bar
would an unreasoning adherence to "Procedural
niceties" which denies justice to the herein laborers,
whose basic human freedoms, including the right to
survive, must be according supremacy over the
property rights of their employer firm which has been
given a full hearing on this case, especially when, as
in the case at bar, no actual material damage has be
demonstrated as having been inflicted on its property
rights.
If We can disregard our own rules when justice
requires it, obedience to the Constitution renders
more imperative the suspension of a Court of
Industrial Relations rule that clash with the human
rights sanctioned and shielded with resolution
concern by the specific guarantees outlined in the
organic law. It should be stressed that the application
in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein
respondent firm is unreasonable and therefore such
application becomes unconstitutional as it subverts
the human rights of petitioning labor union and
workers in the light of the peculiar facts and
circumstances revealed by the record.
The suspension of the application of Section 15 of the
Court of Industrial Relations rules with reference to
the case at is also authorized by Section 20 of
Commonwealth Act No. 103, the C.I.R. charter, which
enjoins the Court of Industrial Relations to "act
according to justice and equity and substantial merits
of the case, without regard to technicalities or legal
forms ..."
On several occasions, We emphasized this doctrine
which was re-stated by Mr. Justice Barredo, speaking
for the Court, in the 1970 case of Kapisanan, etc. vs.
Hamilton, etc., et. al.,  -e thus:
30
As to the point that the evidence being
offered by the petitioners in the motion
for new trial is not "newly discovered,"
as such term is understood in the
rules of procedure for the ordinary
courts, We hold that such criterion is
not binding upon the Court of
Industrial Relations. Under Section 20
of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall
adopt its, rules or procedure and shall
have such other powers as generally
pertain to a court of justice: Provided,
however, That in the hearing,
investigation and determination of any
question or controversy and in
exercising any duties and power under
this Act, the Court shall act according
to justice and equity and substantial
merits of the case, without regard to
technicalities or legal forms and shall
not be bound by any technical rules of
legal evidence but may inform its mind
in such manner as it may deem just
and equitable.' By this provision the
industrial court is disengaged from the
rigidity of the technicalities applicable
to ordinary courts. Said court is not
even restricted to the specific relief
demanded by the parties but may
issue such orders as may be deemed
necessary or expedient for the
purpose of settling the dispute or
dispelling any doubts that may give
rise to future disputes. (Ang Tibay v.
C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil.
Labor, 71 Phil. 124.) For these
reasons, We believe that this provision
is ample enough to have enabled the
respondent court to consider whether
or not its previous ruling that
petitioners constitute a minority was
founded on fact, without regard to the
technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16
Phil. 315; Chua Kiong v. Whitaker, 46
Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial
Relations rules with "pedantic rigor" in the instant
case is to rule in effect that the poor workers, who can
ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to
them by the fundamental law, simply because their
counsel — erroneously believing that he received a
copy of the decision on September 23, 1969, instead
of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which
practically is only one day late considering that
September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure
technicalities when they ceased to be instruments of
justice, for the attainment of which such rules have
been devised. Summarizing the jurisprudence on this
score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta,  -f Stated:
30
As was so aptly expressed by Justice
Moreland in Alonso v. Villamor (16
Phil. 315 [1910]. The Villamor decision
was cited with approval in Register of
Deeds v. Phil. Nat. Bank, 84 Phil. 600
[1949]; Potenciano v. Court of
Appeals, 104 Phil. 156 [1958] and Uy
v. Uy, 14243, June 30, 1961, 2 SCRA
675.), decided as far back as 1910,
"technicality. when it deserts its
proper-office as an aid to justice and
becomes its great hindrance and chief
enemy, deserves scant consideration
from courts." (Ibid., p, 322.) To that
norm, this Court has remained
committed. The late Justice Recto in
Blanco v. Bernabe, (63 Phil. 124
[1936]) was of a similar mind. For him
the interpretation of procedural rule
should never "sacrifice the ends
 justice." While "procedural laws are no
other than technicalities" view them in
their entirety, 'they were adopted not
as ends themselves for the
compliance with which courts have
organized and function, but as means
conducive to the realization the
administration of the law and of justice
(Ibid., p.,128). We have remained
steadfastly opposed, in the highly
rhetorical language Justice Felix, to "a
sacrifice of substantial rights of a
litigant in altar of sophisticated
technicalities with impairment of the
sacred principles of justice."
(Potenciano v. Court of Appeals, 104
Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should
give way to the realities of the
situation." (Urbayan v. Caltex, L-
15379, Aug. 31, 1962, 5 SCRA 1016,
1019). In the latest decision in point
promulgated in 1968, (Udan v. Amon,
(1968, 23 SCRA citing McEntee v.
Manotok, L-14968, Oct. 27, 1961, 3
SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of
Justice Labrador that rules of
procedure "are not to be applied in a
very rigid, technical sense"; but are
intended "to help secure substantial
justice." (Ibid., p. 843) ...  -g
30
Even if the questioned Court of Industrial Relations
orders and rule were to be given effect, the dismissal
or termination of the employment of the petitioning
eight (8) leaders of the Union is harsh for a one-day
absence from work. The respondent Court itself
recognized the severity of such a sanction when it did
not include the dismissal of the other 393 employees
who are members of the same Union and who
participated in the demonstration against the Pasig
police. As a matter of fact, upon the intercession of
the Secretary of Labor, the Union members who are
not officers, were not dismissed and only the Union
itself and its thirteen (13) officers were specifically
named as respondents in the unfair labor practice
charge filed against them by the firm (pp. 16-20,
respondent's Brief; Annexes "A", "B" and "C", pp. 20-
30, rec.). Counsel for respondent firm insinuates that
not all the 400 or so employee participated in the
demonstration, for which reason only the Union and
its thirteen (13) officers were specifically named in the
unfair labor practice charge (p. 20, respondent's
brief). If that were so, then many, if not all, of the
morning and regular shifts reported for work on March
4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain
any damage.
The appropriate penalty — if it deserves any penalty
at all — should have been simply to charge said one-
day absence against their vacation or sick leave. But
to dismiss the eight (8) leaders of the petitioner Union
is a most cruel penalty, since as aforestated the
Union leaders depend on their wages for their daily
sustenance as well as that of their respective families
aside from the fact that it is a lethal blow to unionism,
while at the same time strengthening the oppressive
hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes
frequently not from those who
consciously seek to destroy our
system of Government, but from men
of goodwill — good men who allow
their proper concerns to blind them to
the fact that what they propose to
accomplish involves an impairment of
liberty.
... The Motives of these men are often
commendable. What we must
remember, however, is
that preservation of liberties does not
depend on motives. A suppression of
liberty has the same effect whether
the suppress or be a reformer or an
outlaw. The only protection against
misguided zeal is a constant alertness
of the infractions of the guarantees of
liberty contained in our
Constitution. Each surrender of liberty
to the demands of the moment makes
easier another, larger surrender. The
battle over the Bill of Rights is a never
ending one.
... The liberties of any person are the
liberties of all of us.
... In short, the Liberties of none are
safe unless the liberties of all are
protected.
... But even if we should sense no
danger to our own liberties, even if we
feel secure because we belong to a
group that is important and respected,
we must recognize that our Bill of
Rights is a code of fair play for the
less fortunate that we in all honor and
good conscience must be observe.  31
The case at bar is worse.
Management has shown not only lack of good-will or
good intention, but a complete lack of sympathetic
understanding of the plight of its laborers who claim
that they are being subjected to indignities by the
local police, It was more expedient for the firm to
conserve its income or profits than to assist its
employees in their fight for their freedoms and
security against alleged petty tyrannies of local police
officers. This is sheer opportunism. Such opportunism
and expediency resorted to by the respondent
company assaulted the immunities and welfare of its
employees. It was pure and implement selfishness, if
not greed.
Of happy relevance is the 1967 case of Republic
Savings Bank vs. C.I.R.,   where the petitioner Bank
32
dismissed eight (8) employees for having written and
published "a patently libelous letter ... to the Bank
president demanding his resignation on the grounds
of immorality, nepotism in the appointment and
favoritism as well as discrimination in the promotion of
bank employees." Therein, thru Mr. Justice Castro,
We ruled:
It will avail the Bank none to gloat over
this admission of the respondents.
Assuming that the latter acted in their
individual capacities when they wrote
the letter-charge they were
nonetheless protected for they were
engaged in concerted activity, in the
exercise of their right of self
organization that includes concerted
activity for mutual aid and protection,
(Section 3 of the Industrial Peace
Act ...) This is the view of some
members of this Court. For, as has
been aptly stated, the joining in
protests or demands, even by a small
group of employees, if in furtherance
of their interests as such, is a
concerted activity protected by the
Industrial Peace Act. It is not
necessary that union activity be
involved or that collective bargaining
be contemplated. (Annot., 6 A.L.R. 2d
416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank
should have allowed the respondents
to air their grievances.
xxx xxx xxx
The Bank defends its action by
invoking its right to discipline for what
it calls the respondents' libel in giving
undue publicity to their letter-charge.
To be sure, the right of self-
organization of employees is not
unlimited (Republic Aviation Corp. vs.
NLRB 324 U.S. 793 [1945]), as the
right of the employer to discharge for
cause (Philippine Education Co. v.
Union of Phil. Educ. Employees, L-
13773, April 29, 1960) is undenied.
The Industrial Peace Act does not
touch the normal exercise of the right
of the employer to select his
employees or to discharge them. It is
directed solely against the abuse of
that right by interfering with the
countervailing right of self organization
(Phelps Dodge Corp. v. NLRB 313
U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this
Court is in unanimity that the Bank's
conduct, identified as an interference
with the employees' right of self-
organization or as a retaliatory
action, and/or as a refusal to bargain
collectively, constituted an unfair labor
practice within the meaning and
intendment of section 4(a) of the
Industrial Peace Act. (Emphasis
supplied.) 33
If free expression was accorded recognition and
protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed
the morality and integrity of the bank president no
less, such recognition and protection for free speech,
free assembly and right to petition are rendered all the
more justifiable and more imperative in the case at
bar, where the mass demonstration was not against
the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the
respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and
(2) directing the re instatement of the herein eight (8)
petitioners, with full back pay from the date of their
separation from the service until re instated, minus
one day's pay and whatever earnings they might have
realized from other sources during their separation
from the service.
With costs against private respondent Philippine
Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.
 
Separate Opinions
 
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my
sense of duty compels me to dissent.
The background of this case may be found principally
in the stipulation of facts upon which the decision
under review is based. It is as follows:
1. That complainant Philippine
Blooming Mills, Company, Inc., is a
corporation existing and operating
under and by virtue of the laws of the
Philippines with corporate address at
666 Muelle de Binondo, Manila, which
is the employer of respondent;
2. That Philippine Blooming Mills
Employees Organization PBMEO for
short, is a legitimate labor
organization, and the respondents
herein are either officers of
respondent PBMEO or members
thereof;
3. That on March 2, 1969 complainant
company learned of the projected
mass demonstration at Malacañang in
protest against alleged abuses of the
Pasig Police Department to be
participated by the first shift (6:00 AM
— 2:00 PM workers as well as those
working in the regular shifts (7:00 A.M.
to 4:00 PM and 8:00 AM to 5:00 PM in
the morning of March 4, 1969;
4. That a meeting was called by the
Company on March 3, 1969 at about
11:00 A.M. at the Company's canteen,
and those present were: for the
Company: (1) Mr. Arthur L. Ang, (2)
Atty. Cesareo S. de Leon, Jr. (3) and
all department and section heads. For
the PBMEO (1) Florencio Padrigano,
(2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5)
Bonifacio Vacuna and (6) Benjamin
Pagcu.
5. That the Company asked the union
panel to confirm or deny said
projected mass demonstration at
Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union
panel, confirmed the planned
demonstration and stated that the
demonstration or rally cannot be
cancelled because it has already been
agreed upon in the meeting. Pagcu
explained further that the
demonstration has nothing to do with
the Company because the union has
no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S.
de Leon, Company personnel
manager, informed PBMEO that the
demonstration is an inalienable right of
the union guaranteed by the
Constitution but emphasized,
however, that any demonstration for
that matter should not unduly
prejudice the normal operation of the
Company. For which reason, the
Company, thru Atty. C.S. de Leon,
warned the PBMEO representatives
that workers who belong to the first
and regular shifts, who without
previous leave of absence approved
by the Company, particularly the
officers present who are the
organizers of the demonstration, who
shall fail to report for work the
following morning (March 4, 1969)
shall be dismissed, because such
failure is a violation of the existing
CBA and, therefore, would be
amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3,
1969, another meeting was convoked.
Company represented by Atty. C.S. de
Leon, Jr. The Union panel was
composed of: Nicanor Tolentino,
Rodulfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon
 meeting of March 3, 1969, Company
reiterated and appealed to the
PBMEO representatives that while all
workers may join the Malacañang
demonstration, the workers for the first
and regular shift of March 4, 1969
should be excused from joining the
demonstration and should report for
work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to
violate the provisions of the CBA,
particularly Article XXIV "NO
LOCKOUT — NO STRIKE". All those
who will not follow this warning of the
Company shall be dismissed; De Leon
reiterated the Company's warning that
the officers shall be primarily liable
being the organizers of the mass
demonstration. The union panel
countered that it was rather too late to
change their plans inasmuch as the
Malacañang demonstration will be
held the following morning; and
8. That a certain Mr. Wilfredo Ariston,
adviser of PBMEO sent a cablegram
to the Company which was received
9:50 A.M., March 4, 1969, the
contents of which are as follows:
'REITERATING REQUEST EXCUSE
DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.
Additionally, the trial court found that "the projected
demonstration did in fact occur and in the process
paralyzed to a large extent the operations of the
complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the
Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners
charging that: .
3. That on March 4, 1969,
respondents (petitioners herein)
particularly those in the first shift, in
violation of the existing collective
bargaining agreement and without
filing the necessary notice as provided
for by law, failed to report for work,
amounting to a declaration of strike;
4. That the above acts are in violation
of Section 4(a) subparagraph 6, in
relation to Sections 13, 14 and 15 of
Republic Act No. 875, and of the
collective bargaining agreement.
(Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the
dispositive part of which read's:
IN VIEW HEREOF, the respondent
Philippine Blooming Mills Employees
Organization is found guilty of
bargaining in bad faith and is hereby
ordered to cease and desist from
further committing the same and its
representatives namely: respondent
Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu,
Nicanor Tolentino and Rodulfo
Monsod who are directly responsible
for perpetrating this unfair labor
practice act, are hereby considered to
have lost their status as employees of
the Philippine Blooming Mills, Inc. (p.
8, Annex F.)
Although it is alleged in the petition herein that
petitioners were notified of this decision on
September 23, 1969, there seems to be no serious
question that they were actually served therewith on
September 22, 1969. In fact, petitioners admitted this
date of notice in paragraph 2 of their Petition for Relief
dated October 30, 1969 and filed with the industrial
court on the following day. (See Annex K.)
It is not controverted that it was only on September
29, 1969, or seven (7) days after they were notified of
the court's decision, that petitioners filed their motion
for reconsideration with the industrial court; as it is
also not disputed that they filed their "Arguments in
Support of the Respondents' Motion for
Reconsideration" only on October 14, 1969. (See
Annex I.) In other words, petitioners' motion for
reconsideration was filed two (2) days after the lapse
of the five (5) day period provided for the filing thereof
in the rules of the Court of Industrial Relations,
whereas the "Arguments" were filed five (5) days after
the expiration of the period therefor also specified in
the same rules.
Accordingly, the first issue that confronts the Court is
the one raised by respondent private firm, namely,
that in view of the failure of petitioners to file not only
their motion for reconsideration but also their
arguments in support thereof within the periods
respectively fixed in the rules therefor, the Court of
Industrial Relations acted correctly and within the law
in rendering and issuing its impugned order of
October 9, 1969 dismissing petitioners' motion for
reconsideration.
Respondent's contention presents no problem.
Squarely applicable to the facts hereof is the decision
of this Court in Elizalde & Co. Inc. vs. Court of
Industrial Relations  wherein it was ruled that:
1
August 6, 1963. Petitioner received a
copy of the decision of the then
Associate Judge Arsenio I. Martinez,
the dispositive part of which was set
forth earlier in this opinion.
August 12, 1963. Petitioner filed a
motion for reconsideration. No
arguments were advanced in support
thereof.
August 21, 1963. Petitioner moved for
additional time to file its arguments in
support of its motion to reconsider.
August 27, 1963. Petitioner filed its
arguments in support of its aforesaid
motion seeking reconsideration.
September 16, 1963. CIR en
banc resolved to dismiss the motion
for reconsideration. Ground therefor
was that the arguments were filed out
of time.
October 3, 1963. Petitioner filed its
notice of appeal and at the same time
lodged the present petition with this
Court.
Upon respondent Perlado's return and
petitioner's brief (respondents did not
file their brief), the case is now before
us for resolution.
1. That the judgment appealed from is
a final judgment — not merely an
interlocutory order — there is no
doubt. The fact that there is need for
computation of respondent Perlado's
overtime pay would not render the
decision incomplete. This in effect is
the holding of the Court in Pan
American World Airways System
(Philippines) vs. Pan American
Employees Association, which runs
thus: 'It is next contended that in
ordering the Chief of the Examining
Division or his representative to
compute the compensation due, the
Industrial Court unduly delegated its
judicial functions and thereby
rendered an incomplete decision. We
do not believe so. Computation of the
overtime pay involves a mechanical
function, at most. And the report would
still have to be submitted to the
Industrial Court for its approval, by the
very terms of the order itself. That
there was no specification of the
amount of overtime pay in the decision
did not make it incomplete, since this
matter should necessarily be made
clear enough in the implementation of
the decision (see Malate Taxicab &
Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the
stage of finality in the sense that it can
no longer, be disturbed?
CIR Rules of Procedure, as amended,
and the jurisprudence of this Court
both answer the question in the
affirmative.
Section 15 of the CIR Rules requires
that one who seeks to reconsider the
judgment of the trial judge must do so
within five (5) days from the date on
which he received notice of the
decision, subject of the motion. Next
follows Section 16 which says that the
motion must be submitted with
arguments supporting the same. But if
said arguments could not be
submitted simultaneously with the
motion, the same section commands
the 'the movant shall file the same
within ten (10) days from the date of
the filing of his motion for
reconsideration.' Section 17 of the
same rules admonishes a movant that
"(f)ailure to observe the above-
specified periods shall be sufficient
cause for dismissal of the motion for
reconsideration or striking out of the
answer and/or the supporting
arguments, as the case may be".
Not that the foregoing rules stand
alone. Jurisprudence has since
stabilized the enforceability thereof.
Thus, in Bien vs. Castillo, (97 Phil.
956) we ruled that where a pro forma
motion for reconsideration was filed
out of time its denial is in order
pursuant to CIR rules, regardless of
whether the arguments in support of
said motion were or were not filed on
time. Pangasinan Employees
Laborers & Tenants Association
(PELTA) vs. Martinez, (L-13846, May
20, 1960) pronounced that where a
motion to reconsider is filed out of
time, the order or decision subject of
reconsideration comes final. And so
also, where the arguments in support
of the motion for reconsideration are
filed beyond the ten-day reglementary
period, the pre forma motion for
reconsideration although seasonably
filed must nevertheless be denied.
This in essence is our ruling in Local
7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching
in Luzon Stevedoring Co., Inc. vs.
Court of Industrial Relations, is that
where the motion for reconsideration
is denied upon the ground that the
arguments in support thereof were
filed out of time, the order or decision
subject of the motion becomes "final
and unappealable".
We find no difficulty in applying the
foregoing rules and pronouncements
of this Court in the case before us. On
August 6, petitioner received a copy of
the judgment of Judge Arsenio I.
Martinez aforesaid. Petitioner's motion
to reconsider — without arguments in
support thereof — of August 12 was
filed on time. For, August 11, the end
of the five-day reglementary period to
file a motion for reconsideration, was a
Sunday. But, actually, the written
arguments in support of the said
motion were submitted to the court on
August 27. The period from August 12
to August 27, is a space of fifteen (15)
days. Surely enough, said arguments
were filed out of time — five (5) days
late. And the judgment had become
final.
3. There is, of course, petitioner's
motion of August 21, 1963 seeking
extension of time within which to
present its arguments in support of its
motion. Counsel in his petition before
this Court pleads that the foregoing
motion was grounded on the
'extremely busy and difficult schedule
of counsel which would not enable him
to do so within the stated ten-day
reglementary period. The arguments
were only filed on August 27 — five
(5) days late, as aforesaid.
The foregoing circumstances will not
avail petitioner any. It is to be noted
that the motion for expansion of time
was filed only on August 21, that is,
one day before the due date which is
August 22. It was petitioner's duty to
see to it that the court act on this
motion forthwith or at least inquire as
to the fate thereof not later than the
22nd of August. It did not. It merely
filed its arguments on the 27th.
To be underscored at this point is that
"obviously to speed up the disposition
of cases", CIR "has a standing rule
against the extension of the ten-day
period for filing supporting
arguments". That no-extension policy
should have placed petitioner on
guard. It should not have simply folded
its arms, sit by supinely and relied on
the court's generosity. To compound
petitioner's neglect, it filed the
arguments only on August 27, 1953,
knowing full well that by that time the
reglementary period had expired.
Petitioner cannot complain against
CIR's ruling of September 16, 1963
dismissing the motion for
reconsideration on the ground that the
supporting arguments were filed out of
time. That ruling in effect denied the
motion for extension.
We rule that CIR's judgment has
become final and unappealable. We
may not review the same.
Notwithstanding this unequivocal and unmistakable
precedent, which has not been in any way modified,
much less revoked or reversed by this Court, the main
opinion has chosen not only to go into the merits of
petitioners' pose that the respondent court erred in
holding them guilty of bargaining in bad faith but also
to ultimately uphold petitioners' claim for
reinstatement on constitutional grounds.
Precisely because the conclusions of the main
opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and
peaceful assembly for redress of grievances, so
scholarly and masterful that it is bound to overwhelm
Us unless We note carefully the real issues in this
case, I am constrained, over and above my sincere
admiration for the eloquence and zeal of Mr. Justice
Makasiar's brilliant dissertation, to dutifully state that
as presented by petitioners themselves and in the
light of its attendant circumstances, this case does not
call for the resolution of any constitutional issue.
Admittedly, the invocation of any constitutional
guarantee, particularly when it directly affects
individual freedoms enshrined in the bill of rights,
deserves the closest attention of this Court. It is my
understanding of constitutional law and judicial
practices related thereto, however, that even the most
valuable of our constitutional rights may be protected
by the courts only when their jurisdiction over the
subject matter is unquestionably established and the
applicable rules of procedure consistent with
substantive and procedural due process are
observed. No doubt no constitutional right can be
sacrificed in the altar of procedural technicalities, very
often fittingly downgraded as niceties but as far as I
know, this principle is applied to annul or set aside
final judgments only in cases wherein there is a
possible denial of due process. I have not come
across any instance, and none is mentioned or cited
in the well-documented main opinion, wherein a final
and executory judgment has been invalidated and set
aside upon the ground that the same has the effect of
sanctioning the violation of a constitutional right,
unless such violation amounts to a denial of due
process.
Without support from any provision of the constitution
or any law or from any judicial precedent or reason of
principle, the main opinion nudely and unqualifiedly
asserts, as if it were universally established and
accepted as an absolute rule, that the violation of a
constitutional right divests the court of jurisdiction; and
as a consequence its judgment is null and void and
confers no rights". Chavez vs. Court of Appeals, 24
SCRA 663, which is mentioned almost in passing,
does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus
proceedings even after the finality of the judgment".
And, of course, Chavez is correct; as is also Abriol
vs. Homeres  which, in principle, served as its
2
precedent, for the very simple reason that in both of
those cases, the accused were denied due process.
In Chavez, the accused was compelled to testify
against himself as a witness for the prosecution; in
Abriol, the accused was denied his request to be
allowed to present evidence to establish his defense
after his demurrer to the People's evidence was
denied.
As may be seen, however, the constitutional issues
involved in those cases are a far cry from the one now
before Us. Here, petitioners do not claim they were
denied due process. Nor do they pretend that in
denying their motion for reconsideration, "the
respondent Court of Industrial Relations and private
firm trenched upon any of their constitutional
immunities ...," contrary to the statement to such
effect in the main opinion. Indeed, neither in the
petition herein nor in any of the other pleading of
petitioners can any direct or indirect assertion be
found assailing the impugned decision of the
respondent court as being null and void because it
sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our
resolution as follows:
Petitioners herein humbly submit that
the issue to be resolved is whether or
not the respondent Court en
banc under the facts and
circumstances, should consider the
Motion for Reconsideration filed by
your petitioners.
Petitioners, therefore, in filing this
petition for a writ of certiorari, humbly
beg this Honorable Court to treat this
petition under Rule 43 and 65 of the
Rules of Court.
xxx xxx xxx
The basic issue therefore is the
application by the Court en banc of the
strict and narrow technical rules of
procedure without taking into account
justice, equity and substantial merits
of the case.
On the other hand, the complete
argument submitted by petitioners on
this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning
in the exercise of a fundamental right
to peaceably assemble and petition
the government for redress of
grievances constitute bargaining in
bad faith? and,
Do the facts found by the court below
justify the declaration and conclusion
that the union was guilty of bargaining
in bad faith meriting the dismissal of
the persons allegedly responsible
therefore?
2. Was there grave abuse of discretion
when the respondent court refused to
act one way or another on the petition
for relief from the resolution of October
9, 1969?
IV
ARGUMENT
The respondent Court erred in finding
the petition union guilty of bargaining
in bad faith and consequently
dismissing the persons allegedly
responsible therefor, because such
conclusion is country to the evidence
on record; that the dismissal of
leaders was discriminatory.
As a result of exercising the
constitutional rights of freedom to
assemble and petition the duly
constituted authorities for redress of
their grievances, the petitioners were
charged and then condemned of
bargaining in bad faith.
The findings that petitioners were
guilty of bargaining in bad faith were
not borne out by the records. It was
not even alleged nor proven by
evidence. What has been alleged and
which the respondent company tried
to prove was that the demonstration
amounted to a strike and hence, a
violation of the provisions of the "no-
lockout — no strike" clause of the
collective bargaining agreement.
However, this allegation and proof
submitted by the respondent company
were practically resolved when the
respondent court in the same decision
stated categorically:
'The company alleges
that the walkout
because of the
demonstration is
tantamount to a change the terms or conditions of
declaration of a strike.
We do not think so, as
the same is not rooted
in any industrial
dispute although there
is a concerted act and
the occurrence of a
temporary stoppage of
work.' (Emphasis
supplied, p. 4, 5th
paragraph, Decision.)
The respondent court's
findings that the
petitioner union
bargained in bad faith
is not tenable
because:
First, it has not been alleged nor
proven by the respondent company; .
Second, before the demonstration, the
petitioner union and the respondent
company convened twice in a meeting
to thresh out the matter of
demonstration. Petitioners requested
that the employees and workers be
excused but the respondent company
instead of granting the request or even
settling the matter so that the hours of
work will not be disrupted, immediately
threatened the employees of mass
dismissal;
Third, the refusal of the petitioner
union to grant the request of the
company that the first shift shall be
excluded in the demonstration is not
tantamount to bargaining in bad faith
because the company knew that the
officers of the union belonged to the
first shift, and that the union cannot go
and lead the demonstration without
their officers. It must be stated that the
company intends to prohibit its officers
to lead and join the demonstration
because most of them belonged to the
first shift; and
Fourth, the findings of the respondent
court that the demonstration if allowed
will practically give the union the right
to change the working conditions
agreed in the CBA is a conclusion of
facts, opinionated and not borne by
any evidence on record. The
demonstration did not practically
employment because it was only for
one (1) day and the company knew
about it before it went through. We
can even say that it was the company
who bargained in bad faith, when
upon representation of the Bureau of
Labor not to dismiss the employees
demonstrating, the company tacitly
approved the same and yet while the
demonstration was in progress, the
company filed a ULP Charge and
consequently dismissed those who
participated.
Records of the case show that more
or less 400 members of the union
participated in the demonstration and
yet, the respondent court selected the
eight officers to be dismissed from the
union thus losing their status as
employees of the respondent
company. The respondent court
should have taken into account that
the company's action in allowing the
return of more or less three hundred
ninety two (392) employees/members
of the union is an act of condonation
and the dismissal of the eight (8)
officers is an act of discrimination
(Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-
8197, Oct. 31, 1958). Seemingly, from
the opinion stated in the decision by
the court, while there is a collective
bargaining agreement, the union
cannot go on demonstration or go on
strike because it will change the terms
and conditions of employment agreed
in the CBA. It follows that the CBA is
over and above the constitutional
rights of a man to demonstrate and
the statutory rights of a union to strike
as provided for in Republic Act 875.
This creates a bad precedent because
it will appear that the rights of the
union is solely dependent upon the
CBA.
One of the cardinal primary rights
which must be respected in
proceedings before the Court of
Industrial Relations is that "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."
(Interstate Commerce Commission vs.
L & N R. Co., 227 U.S. 88, 33 S. Ct.
185, 57 Law ed. 431.) Only by
confining the administrative tribunal to
the evidence disclosed to the parties,
can the latter be protected in their
rights to know and meet the case
against them. (Ang Tibay vs. CIR,
G.R. No. L-45496, February 27,
1940.)
The petitioners respectfully and
humbly submit that there is no scintilla
of evidence to support the findings of
the respondent court that the
petitioner union bargained in bad faith.
Corollary therefore, the dismissal of
the individual petitioners is without
basis either in fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that
petitioners have been guilty of
bargaining in bad faith and
consequently lost their status as
employees of the respondent
company did not meet the meaning
and comprehension of "substantial
merits of the case." Bargaining in bad
faith has not been alleged in the
complaint (Annex "C", Petition) nor
proven during the hearing of the can.
The important and substantial merit of
the case is whether under the facts
and circumstances alleged in
respondent company's pleadings, the
demonstration done by the petitioners
amounted to on "illegal strike" and
therefore in violation of the "no strike
— no lock out" clause of the Collective
Bargaining Agreement. Petitioners
respectfully reiterate and humbly
submit, that the respondent court had
altogether opined and decided that
such demonstration does not amount
to a strike. Hence, with that findings,
petitioners should have been absolved
of the charges against them.
Nevertheless, the same respondent
court disregarding, its own findings,
went out of bounds by declaring the
petitioners as having "bargained in
faith." The stand of the respondent
court is fallacious, as it follows the
principle in logic as "non-siquitor";
2) That again respondents wanted to
impress that the freedom to assemble
peaceably to air grievances against
the duly constituted authorities as
guaranteed in our Constitution is
subject to the limitation of the
agreement in the Collective
Bargaining Agreement. The
fundamental rights of the petitioners to
free speech and assembly is
paramount to the provision in the
Collective Bargaining Agreement and
such attempt to override the
constitutional provision would be null
and void. These fundamental rights of
the petitioners were not taken into
 consideration in the deliberation of the
case by the respondent court;
Thus, it is clear from the foregoing contentions that
petitioners are not raising any issue of due process.
They do not posit that the decision of the industrial
court is null and void on that constitutional ground.
True it is that they fault the respondent court for
having priced the provisions of the collective
bargaining agreement herein involved over and above
their constitutional right to peaceably assemble and
petition for redress of their grievances against the
abuses of the Pasig police, but in no sense at all do
they allege or contend that such action affects its
jurisdiction in a manner that renders the proceedings
a nullity. In other words, petitioners themselves
consider the alleged flaw in the court's action as a
mere error of judgment rather than that of jurisdiction
which the main opinion projects. For this Court to
roundly and indignantly condemn private respondent
now for the grievous violation of the fundamental law
the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when
that specific issue has not been duly presented to Us
and properly argued, is to my mind unfair and unjust,
for the simple reason that the manner this case was
brought to Us does not afford it the opportunity to be
heard in regard to such supposed constitutional
transgression.
To be sure, petitioners do maintain, that respondent
court committed an error of jurisdiction by finding
petitioners guilty of bargaining in bad faith when the
charge against them alleged in the complaint was for
having conducted a mass demonstration, which
"amounted to a strike", in violation of the Collective
Bargaining Agreement, but definitely, this
jurisdictional question has no constitutional color.
Indeed, We can even assume for the sake of
argument, that the trial judge did err in not giving
preferential importance to the fundamental freedoms
invoked by the petitioners over the management and
proprietary attributes claimed by the respondent
private firm — still, We cannot rightly hold that such
disregard of petitioners' priceless liberties divested
His Honor of jurisdiction in the premises. The
unbending doctrine of this Court is that "decisions,
erroneous or not, become final after the period fixed
by law; litigations would be endless, no questions
would be finally settled; and titles to property would
become precarious if the losing party were allowed to
reopen them at any time in the future". 3
I only have to add to this that the fact that the error is
in the interpretation, construction or application of a
constitutional precept not constituting a denial of due
process, should not make any difference. Juridically,
a party cannot be less injured by an overlooked or
erroneously sanctioned violation of an ordinary statute
than by a misconstrued or constitutional injunction
affecting his individual, freedoms. In both instances,
there is injustice which should be intolerable were it
not for the more paramount considerations that inform
the principle of immutability of final judgments. I dare
say this must be the reason why, as I have already
noted, the main opinion does not cite any
constitutional provision, law or rule or any judicial
doctrine or principle supporting its basic holding that
infringement of constitutional guarantees, other than
denial of due process, divests courts of jurisdiction to
render valid judgments.
In this connection, it must be recalled that the
teaching of Philippine Association of Colleges
and Universities vs. Secretary of
Education,  following Santiago vs. Far Eastern
4
Broadcasting,  is that "it is one of our (the Supreme
5
Court's) decisional practices that unless a
constitutional point is specifically raised, insisted upon
and adequately argued, the court will not consider it".
In the case at bar, the petitioners have not raised,
they are not insisting upon, much less have they
adequately argued the constitutional issues so
extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the
Supreme Court to hold that the erroneous resolution
by a court of a constitutional issue not amounting to a
denial of due process renders its judgment or decision
null and void, and, therefore, subject to attack even
after said judgment or decision has become final and
executory. I have actually tried to bring myself into
agreement with the views of the distinguished and
learned writer of the main opinion, if only to avoid
dissenting from his well prepared thesis, but its
obvious incongruity with settled jurisprudence always
comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me
as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate
jurisdiction under Section 2(5) of Article VII of the
Philippines  (reenacted practically ipssisimis verbis in
6
Section 5(2) of the 1973 Constitution), only to realize
upon further reflection that the very power granted to
us to review decisions of lower courts involving
questions of law(and these include constitutional
issues not affecting the validity of statutes, treaty,
executive agreement, etc.) is not unqualified but has
to be exercised only in the manner provided in the law
of the Rules of Court. In other words, before We can
exercise appellate jurisdiction over constitutional
issues, no matter how important they may be, there
must first be a showing of compliance with the
applicable procedural law or rules, among them,
those governing appeals from the Court of Industrial
Relations involved herein. Consequently, if by law or
rule, a judgment of the industrial court is already final
and executory, this Court would be devoid of power
and authority to review, much less alter or modify the
same, absent any denial of due process or fatal
defect of jurisdiction. It must be borne in mind that the
situation confronting Us now is not merely whether or
not We should pass upon a question or issue not
specifically raised by the party concerned, which, to
be sure, could be enough reason to dissuade Us from
taking pains in resolving the same; rather, the real
problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated
earlier, no less than Justice Conrado Sanchez, the
writer of Chavez, supra., which is being relied upon by
the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square
applicability to the facts of this case, We have no
choice but to follow, that is, that in view of
reconsideration but even their argument supporting
the same within the prescribed period, "the judgment
(against them)has become final, beyond recall".
Indeed, when I consider that courts would be useless
if the finality and enforceability of their judgments are
made contingent on the correctness thereof from the
constitutional standpoint, and that in truth, whether or
not they are correct is something that is always
dependent upon combined opinion of the members of
the Supreme Court, which in turn is naturally as
changeable as the members themselves are
changed, I cannot conceive of anything more
pernicious and destructive to a trustful administration
of justice than the idea that, even without any showing
of denial of due process or want of jurisdiction of the
court, a final and executory judgment of such court
may still be set aside or reopened in instances other
than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil
Code.  And just to emphasize the policy of the law of
7
respecting judgments once they have become final,
even as this Court has ruled that final decisions are
mute in the presence of fraud which the law abhors,  it 8
is only when the fraud is extrinsic and not intrinsic that
final and executory judgments may be set aside,  and9
this only when the remedy is sought within the
prescriptive period. 10
Apropos here is the following passage in Li Kim
Those vs. Go Sin Kaw, 82 Phil. 776:
Litigation must end and terminate
sometime and somewhere, and it is
essential to an effective and efficient
administration of justice that once a
judgment has become final, the
winning party be not, through a mere
subterfuge, deprived of the fruits of the
verdict. Courts must therefore guard
against any scheme calculated to
bring about that result. Constituted as
they are to put an end to
controversies, courts should frown
upon any attempt to prolong them.
Likewise the stern admonition of Justice George
Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice
demand that, at the risk of occasional
errors, judgments of courts should
become final at some definite date
fixed by law. The very object for which
courts were instituted was to put an
end to controversies. To fulfill this
purpose and to do so speedily, certain
time limits, more or less arbitrary,
have to be set up to spur on the
slothful. 'If a vacillating, irresolute
judge were allowed to thus keep
causes ever within his power, to
determine and redetermine them term
after term, to bandy his judgments
about from one party to the other, and
to change his conclusions as freely
and as capriciously as a chamelon
may change its hues, then litigation
might become more intolerable than
the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs.
Judge de los Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as
to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of
the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:
The point of res adjudicata discussed
in the dissents has not escaped my
attention. Neither am I overlooking the
point of the Chief Justice regarding the
dangerous and inimical implications of
a ruling that would authorize the
revision, amendment or alteration of a
final and executory judgment. I want to
emphasize that my position in this
opinion does not detract a whit from
the soundness, authority and binding
force of existing doctrines enjoining
any such modifications. The public
policy of maintaining faith and respect
in judicial decisions, which inform said
doctrines, is admittedly of the highest
order. I am not advocating any
departure from them. Nor am I trying
to put forth for execution a decision
 that I believe should have been rather
than what it is. All I am doing is to view
not the judgment of Judge Tengco but
the decision of this Court in G.R. No.
L-20950, as it is and not as I believe it
should have been, and, by opinion, I
would like to guide the court a quo as
to what, in my own view, is the true
and correct meaning and implications
of decision of this Court, not that of
Judge Tengco's.
The main opinion calls attention to many instant
precisely involving cases in the industrial court,
wherein the Court refused to be constrained by
technical rules of procedure in its determination to
accord substantial justice to the parties I still believe
in those decisions, some of which were penned by
me. I am certain, however, that in none of those
precedents did this Court disturb a judgment already
final and executory. It too obvious to require extended
elucidation or even reference any precedent or
authority that the principle of immutability of final
judgments is not a mere technicality, and if it may
considered to be in a sense a procedural rule, it is
one that is founded on public policy and cannot,
therefore, yield to the ordinary plea that it must give
priority to substantial justice.
Apparently vent on looking for a constitutional point of
due process to hold on, the main opinion goes far as
to maintain that the long existing and constantly
applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations,
"as applied in this case does not implement on
reinforce or strengthen the constitutional rights
affected, but instead constricts the same to the point
of nullifying the enjoyment thereof by the petitioning
employees. Said Court on Industrial Relations Rule,
promulgated as it was pursuant to mere legislative
delegation, is unreasonable and therefore is beyond
the authority granted by the Constitution and the law.
A period of five (5) days within which to file a motion
for reconsideration is too short, especially for the
aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In
case of the Court of Appeal and the Supreme Court, a
period of fifteen (15) days has been fixed for the filing
of the motion for re-hearing or reconsideration (Sec.
10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56,
Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one
day if September 28, 1969 was not a Sunday. This
fact accentuates the unreasonableness of the Court
of Industrial Relations Rule insofar as circumstances
of the instant case are concerned."
I am afraid the zeal and passion of these arguments
do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can
hardly be any factual or logical basis for such a critical
view of the rule in question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the
motion, in six copies, within five (5)
days from the date on which he
receives notice of the order or
decision, object of the motion for
reconsideration, the same to be
verified under oath with respect to the
correctness of the allegations of fact,
and serving a copy thereof, personally
or by registered mail, on the adverse
party. The latter may file an answer, in
six (6) copies, duly verified under oath.
Sec. 16. Both the motion and the
answer shall be submitted with
arguments supporting the same. If the
arguments can not be submitted
simultaneously with said motions,
upon notice Court, the movant shall
file same within ten (10) days from the
date of the filing of his motion for
reconsideration. The adverse party
shall also file his answer within ten
(10) days from the receipt by him of a
copy of the arguments submitted by
the movant.
Sec. 17. After an answer to the motion
is registered, or after ten (10) days
from the receipt of the arguments in
support of said motion having been
filed, the motion shall be deemed
submitted for resolution of the Court in
banc, unless it is considered
necessary to bear oral arguments, in
which case the Court shall issue the
corresponding order or notice to that
effect.
Failure to observe the above-specified
periods shall be sufficient cause for
dismissal of the motion for
reconsideration or striking out of the
answer and/or the supporting
arguments, as the case may be. (As
amended April 20, 1951, Court of
Industrial Relations.).
As implemented and enforced in actual practice, this
rule, as everyone acquainted with proceedings in the
industrial court well knows, precisely permits the party
aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any
argument or lengthy discussion and with barely a brief
statement of the fundamental ground or grounds
therefor, without prejudice to supplementing the same
by making the necessary exposition, with citations
laws and authorities, in the written arguments the be
filed (10) days later. In truth, such a pro-forma motion
has to effect of just advising the court and the other
party that the movant does not agree with the
judgment due to fundamental defects stated in brief
and general terms. Evidently, the purpose of this
requirement is to apprise everyone concerned within
the shortest possible time that a reconsideration is to
sought, and thereby enable the parties concerned to
make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is
prolonged. It must borne in mind that cases in the
industrial court may involve affect the operation of
vital industries in which labor-management problems
might require day-to-day solutions and it is to the best
interests of justice and concerned that the attitude of
each party at every imports juncture of the case be
known to the other so that both avenues for earlier
settlement may, if possible, be explored.
There can be no reason at all to complain that the
time fixed by the rule is short or inadequate. In fact,
the motion filed petitioners was no more than the
following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents,
through counsel, to this Honorable
Court most respectfully moves for the
RECONSIDERATION of the Order of
this Honorable Court dated September
17, 1969 on the ground that the same
is not in accordance with law,
evidence and facts adduced during
the hearing of the above entitled case.
Movant-respondents most respectfully
move for leave to file their respective
arguments within ten (10) days
pursuant to Section 15, 16 & 17 as
amended of the Rules of Court.
WHEREFORE, it is respectfully
prayed that this Motion for
Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an
unreasonable period for the filing of
such a motion is to me simply
incomprehensible. What worse in this
case is that petitioners have not even
taken the trouble of giving an
explanation of their inability to comply
with the rule. Not only that, petitioners
were also late five (5) days in filing
their written arguments in support of
their motion, and, the only excuse
offered for such delay is that both the
President of the Union and the office
clerk who took charge of the matter
forgot to do what they were instructed
to do by counsel, which, according to
this Court, as I shall explain anon "is
the most hackneyed and habitual
subterfuge employed by litigants who
fail to observe the procedural
requirements prescribed by the Rules
of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly,
the main opinion would want the Court
to overlook such nonchalance and
indifference.
In this connection, I might add that in my considered
opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than
procedural in their real nature, for in their operation
they have the effect of either creating or terminating
rights pursuant to the terms of the particular judgment
concerned. And the fact that the court that rendered
such final judgment is deprived of jurisdiction or
authority to alter or modify the same enhances such
substantive character. Moreover, because they have
the effect of terminating rights and the enforcement
thereof, it may be said that said rules partake of the
nature also of rules of prescription, which again are
substantive. Now, the twin predicates of prescription
are inaction or abandonment and the passage of time
or a prescribed period. On the other hand,
procrastination or failure to act on time is
unquestionably a form of abandonment, particularly
when it is not or cannot be sufficiently explained. The
most valuable right of a party may be lost by
prescription, and be has no reason to complain
because public policy demands that rights must be
asserted in time, as otherwise they can be deemed
waived.
I see no justification whatsoever for not applying
these self-evident principles to the case of petitioners.
Hence, I feel disinclined to adopt the suggestion that
the Court suspend, for the purposes of this case the
rules aforequoted of the Court of Industrial Relations.
Besides, I have grave doubts as to whether we can
suspend rules of other courts, particularly that is not
under our supervisory jurisdiction, being
administrative agency under the Executive
Department Withal, if, in order to hasten the
administration of substance justice, this Court did
exercise in some instances its re power to amend its
rules, I am positively certain, it has done it for the
purpose of reviving a case in which the judo has
already become final and executory.
Before closing, it may be mentioned here, that as
averred their petition, in a belated effort to salvage
their Petitioners filed in the industrial court on October
31, 1969 a Petition for relief alleging that their failure
to file "Arguments in Support of their Motion for
Reconsideration within the reglementary period or five
(5), if not seven (7), days late "was due to excusable
negligence and honest mistake committed by the
President of the respondent Union and on office clerk
of the counsel for respondents as shown attested in
their respective affidavits", (See Annexes K, and K-2)
which in brief, consisted allegedly of the President's
having forgotten his appointment with his lawyer
"despite previous instructions and of the said office
employee having also coincidentally forgotten "to do
the work instructed (sic) to (him) by Atty. Osorio"
because he "was busy with clerical jobs". No
sympathy at all can be evoked these allegations, for,
under probably more justification circumstances, this
Court ruled out a similar explanation previous case
this wise:
We find merit in PAL's petition. The
excuse offered respondent Santos as
reason for his failure to perfect in due
time appeal from the judgment of the
Municipal Court, that counsel's clerk
forgot to hand him the court notice, is
the most hackneyed and habitual
subterfuge employed by litigants who
fail to observe procedural
requirements prescribed by the Rules
of Court. The uncritical acceptance of
this kind of common place excuses, in
the face of the Supreme Court's
repeated rulings that they are neither
credible nor constitutive of excusable
negligence (Gaerlan vs. Bernal, L-
4039, 29 January 1952; Mercado vs.
Judge Domingo, L-19457, December
1966) is certainly such whimsical
exercise of judgment to be a grave
abuse of discretion. (Philippine Air
Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the
industrial court sought to be reviewed in the present
case has already become final and executory, nay,
not without the fault of the petitioners, hence, no
matter how erroneous from the constitutional
viewpoint it may be, it is already beyond recall, I vote
to dismiss this case, without pronouncement as to
costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at
Malacañang on March 4, 1969 in protest against
alleged abuses of the Pasig police department, upon
two days' prior notice to respondent employer company, as against the
latter's insistence that the first shift 1 should not participate but instead
report for work, under pain of dismissal, the industrial court ordered the
dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union
guilty on respondent's complaint of bargaining in bad
faith and unfair labor practice for having so carried out
the mass demonstration, notwithstanding that it
concededly was not a declaration of strike nor
directed in any manner against respondent employer,
and ordering the dismissal of the union office
manifestly constituted grave abuse of discretion in
fact and in law.
There could not be, in fact, bargaining in bad faith nor
unfair labor practice since respondent firm conceded
that "the demonstration is an inalienable right of the
union guaranteed' by the Constitution" and the union
up to the day of the demonstration pleaded by
cablegram to the company to excuse the first shift and
allow it to join the demonstration in accordance with
their previous requests.
Neither could there be, in law, a willful violation of the
collective bargaining agreement's "no-strike" clause
as would warrant the union leaders' dismissal, since
as found by respondent court itself the mass
demonstration was not a declaration of a strike, there
being no industrial dispute between the protagonists,
but merely the occurrence of a temporary stoppage of
work" to enable the workers to exercise their
constitutional rights of free expression, peaceable
assembly and petition for redress of grievance against
alleged police excesses.
Respondent court's en banc resolution dismissing
petitioners' motion for reconsideration for having been
filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to
the negligence of petitioners' counsel and/or the union
president should likewise be set aside as a manifest
act of grave abuse of discretion. Petitioners' petition
for relief from the normal adverse consequences of
the late filing of their motion for reconsideration due to
such negligence — which was not acted upon by
respondent court — should have been granted,
considering the monstrous injustice that would
otherwise be caused the petitioners through their
summary dismissal from employment, simply because
they sought in good faith to exercise basic human
rights guaranteed them by the Constitution. It should
be noted further that no proof of actual loss from the
one-day stoppage of work was shown by respondent
company, providing basis to the main opinion's
premise that its insistence on dismissal of the union
leaders for having included the first shift workers in
the mass demonstration against its wishes was but an
act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the
individual petitioners and the constitutional injunction
to afford protection to labor be given true substance
and meaning. No person may be deprived of such
basic rights without due process — which is but
"responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided ...
Due process is thus hostile to any official action
marred by lack of reasonableness. Correctly it has
been identified as freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the
appealed orders of the respondent court and concur
in the judgment for petitioners as set forth in the main
opinion.
 
 
Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my
sense of duty compels me to dissent.
The background of this case may be found principally
in the stipulation of facts upon which the decision
under review is based. It is as follows:
1. That complainant Philippine
Blooming Mills, Company, Inc., is a
corporation existing and operating
under and by virtue of the laws of the
Philippines with corporate address at
666 Muelle de Binondo, Manila, which
is the employer of respondent;
2. That Philippine Blooming Mills
Employees Organization PBMEO for
short, is a legitimate labor
organization, and the respondents
herein are either officers of
respondent PBMEO or members
thereof;
3. That on March 2, 1969 complainant
company learned of the projected
mass demonstration at Malacañang in
protest against alleged abuses of the
Pasig Police Department to be
participated by the first shift (6:00 AM
— 2:00 PM workers as well as those
working in the regular shifts (7:00 A.M.
to 4:00 PM and 8:00 AM to 5:00 PM in
the morning of March 4, 1969;
4. That a meeting was called by the
Company on March 3, 1969 at about
11:00 A.M. at the Company's canteen,
and those present were: for the
Company: (1) Mr. Arthur L. Ang, (2)
Atty. Cesareo S. de Leon, Jr. (3) and
all department and section heads. For
the PBMEO (1) Florencio Padrigano,
(2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5)
Bonifacio Vacuna and (6) Benjamin
Pagcu.
5. That the Company asked the union
panel to confirm or deny said
projected mass demonstration at
Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union
panel, confirmed the planned
demonstration and stated that the
demonstration or rally cannot be
cancelled because it has already been
agreed upon in the meeting. Pagcu
explained further that the
demonstration has nothing to do with
the Company because the union has
no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S.
de Leon, Company personnel
manager, informed PBMEO that the
demonstration is an inalienable right of
the union guaranteed by the
Constitution but emphasized,
however, that any demonstration for
that matter should not unduly
prejudice the normal operation of the
Company. For which reason, the
Company, thru Atty. C.S. de Leon,
warned the PBMEO representatives
that workers who belong to the first
and regular shifts, who without
previous leave of absence approved
by the Company, particularly the
officers present who are the
organizers of the demonstration, who
shall fail to report for work the
following morning (March 4, 1969)
 shall be dismissed, because such
failure is a violation of the existing
CBA and, therefore, would be
amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3,
1969, another meeting was convoked.
Company represented by Atty. C.S. de
Leon, Jr. The Union panel was
composed of: Nicanor Tolentino,
Rodulfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company
reiterated and appealed to the
PBMEO representatives that while all
workers may join the Malacañang
demonstration, the workers for the first
and regular shift of March 4, 1969
should be excused from joining the
demonstration and should report for
work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to
violate the provisions of the CBA,
particularly Article XXIV "NO
LOCKOUT — NO STRIKE". All those
who will not follow this warning of the
Company shall be dismissed; De Leon
reiterated the Company's warning that
the officers shall be primarily liable
being the organizers of the mass
demonstration. The union panel
countered that it was rather too late to
change their plans inasmuch as the
Malacañang demonstration will be
held the following morning; and
8. That a certain Mr. Wilfredo Ariston,
adviser of PBMEO sent a cablegram
to the Company which was received
9:50 A.M., March 4, 1969, the
contents of which are as follows:
'REITERATING REQUEST EXCUSE
DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.
Additionally, the trial court found that "the projected
demonstration did in fact occur and in the process
paralyzed to a large extent the operations of the
complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the
Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners
charging that: .
3. That on March 4, 1969,
respondents (petitioners herein)
particularly those in the first shift, in
violation of the existing collective
bargaining agreement and without
filing the necessary notice as provided
for by law, failed to report for work,
amounting to a declaration of strike;
4. That the above acts are in violation
of Section 4(a) subparagraph 6, in
relation to Sections 13, 14 and 15 of
Republic Act No. 875, and of the
collective bargaining agreement.
(Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the
dispositive part of which read's:
IN VIEW HEREOF, the respondent
Philippine Blooming Mills Employees
Organization is found guilty of
bargaining in bad faith and is hereby
ordered to cease and desist from
further committing the same and its
representatives namely: respondent
Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu,
Nicanor Tolentino and Rodulfo
Monsod who are directly responsible
for perpetrating this unfair labor
practice act, are hereby considered to
have lost their status as employees of
the Philippine Blooming Mills, Inc. (p.
8, Annex F.)
Although it is alleged in the petition herein that
petitioners were notified of this decision on
September 23, 1969, there seems to be no serious
question that they were actually served therewith on
September 22, 1969. In fact, petitioners admitted this
date of notice in paragraph 2 of their Petition for Relief
dated October 30, 1969 and filed with the industrial
court on the following day. (See Annex K.)
It is not controverted that it was only on September
29, 1969, or seven (7) days after they were notified of
the court's decision, that petitioners filed their motion
for reconsideration with the industrial court; as it is
also not disputed that they filed their "Arguments in
Support of the Respondents' Motion for
Reconsideration" only on October 14, 1969. (See
Annex I.) In other words, petitioners' motion for
reconsideration was filed two (2) days after the lapse
of the five (5) day period provided for the filing thereof
in the rules of the Court of Industrial Relations,
whereas the "Arguments" were filed five (5) days after
the expiration of the period therefor also specified in
the same rules.
Accordingly, the first issue that confronts the Court is
the one raised by respondent private firm, namely,
that in view of the failure of petitioners to file not only
their motion for reconsideration but also their
arguments in support thereof within the periods
respectively fixed in the rules therefor, the Court of
Industrial Relations acted correctly and within the law
in rendering and issuing its impugned order of
October 9, 1969 dismissing petitioners' motion for
reconsideration.
Respondent's contention presents no problem.
Squarely applicable to the facts hereof is the decision
of this Court in Elizalde & Co. Inc. vs. Court of
Industrial Relations  wherein it was ruled that:
1 still have to be submitted to the
August 6, 1963. Petitioner received a
copy of the decision of the then
Associate Judge Arsenio I. Martinez,
the dispositive part of which was set
forth earlier in this opinion.
August 12, 1963. Petitioner filed a
motion for reconsideration. No
arguments were advanced in support
thereof.
August 21, 1963. Petitioner moved for
additional time to file its arguments in
support of its motion to reconsider.
August 27, 1963. Petitioner filed its
arguments in support of its aforesaid
motion seeking reconsideration.
September 16, 1963. CIR en
banc resolved to dismiss the motion
for reconsideration. Ground therefor
was that the arguments were filed out
of time.
October 3, 1963. Petitioner filed its
notice of appeal and at the same time
lodged the present petition with this
Court.
Upon respondent Perlado's return and
petitioner's brief (respondents did not
file their brief), the case is now before
us for resolution.
1. That the judgment appealed from is
a final judgment — not merely an
interlocutory order — there is no
doubt. The fact that there is need for
computation of respondent Perlado's
overtime pay would not render the
decision incomplete. This in effect is
the holding of the Court in Pan
American World Airways System
(Philippines) vs. Pan American
Employees Association, which runs
thus: 'It is next contended that in
ordering the Chief of the Examining
Division or his representative to
compute the compensation due, the
Industrial Court unduly delegated its
judicial functions and thereby
rendered an incomplete decision. We
do not believe so. Computation of the
overtime pay involves a mechanical
function, at most. And the report would
Industrial Court for its approval, by the
very terms of the order itself. That
there was no specification of the
amount of overtime pay in the decision
did not make it incomplete, since this
matter should necessarily be made
clear enough in the implementation of
the decision (see Malate Taxicab &
Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the
stage of finality in the sense that it can
no longer, be disturbed?
CIR Rules of Procedure, as amended,
and the jurisprudence of this Court
both answer the question in the
affirmative.
Section 15 of the CIR Rules requires
that one who seeks to reconsider the
judgment of the trial judge must do so
within five (5) days from the date on
which he received notice of the
decision, subject of the motion. Next
follows Section 16 which says that the
motion must be submitted with
arguments supporting the same. But if
said arguments could not be
submitted simultaneously with the
motion, the same section commands
the 'the movant shall file the same
within ten (10) days from the date of
the filing of his motion for
reconsideration.' Section 17 of the
same rules admonishes a movant that
"(f)ailure to observe the above-
specified periods shall be sufficient
cause for dismissal of the motion for
reconsideration or striking out of the
answer and/or the supporting
arguments, as the case may be".
Not that the foregoing rules stand
alone. Jurisprudence has since
stabilized the enforceability thereof.
Thus, in Bien vs. Castillo, (97 Phil.
956) we ruled that where a pro forma
motion for reconsideration was filed
out of time its denial is in order
pursuant to CIR rules, regardless of
whether the arguments in support of
said motion were or were not filed on
time. Pangasinan Employees
Laborers & Tenants Association
(PELTA) vs. Martinez, (L-13846, May
20, 1960) pronounced that where a
motion to reconsider is filed out of
time, the order or decision subject of
reconsideration comes final. And so
also, where the arguments in support
of the motion for reconsideration are
filed beyond the ten-day reglementary
period, the pre forma motion for
reconsideration although seasonably
filed must nevertheless be denied.
This in essence is our ruling in Local
7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching
in Luzon Stevedoring Co., Inc. vs.
Court of Industrial Relations, is that
where the motion for reconsideration
is denied upon the ground that the
arguments in support thereof were
filed out of time, the order or decision
subject of the motion becomes "final
and unappealable".
We find no difficulty in applying the
foregoing rules and pronouncements
of this Court in the case before us. On
August 6, petitioner received a copy of
the judgment of Judge Arsenio I.
Martinez aforesaid. Petitioner's motion
to reconsider — without arguments in
support thereof — of August 12 was
filed on time. For, August 11, the end
of the five-day reglementary period to
file a motion for reconsideration, was a
Sunday. But, actually, the written
arguments in support of the said
motion were submitted to the court on
August 27. The period from August 12
to August 27, is a space of fifteen (15)
days. Surely enough, said arguments
were filed out of time — five (5) days
late. And the judgment had become
final.
3. There is, of course, petitioner's
motion of August 21, 1963 seeking
extension of time within which to
present its arguments in support of its
motion. Counsel in his petition before
this Court pleads that the foregoing
motion was grounded on the
'extremely busy and difficult schedule
of counsel which would not enable him
to do so within the stated ten-day
reglementary period. The arguments
were only filed on August 27 — five
(5) days late, as aforesaid.
The foregoing circumstances will not
avail petitioner any. It is to be noted
that the motion for expansion of time
was filed only on August 21, that is,
one day before the due date which is
August 22. It was petitioner's duty to
see to it that the court act on this
motion forthwith or at least inquire as
to the fate thereof not later than the
22nd of August. It did not. It merely
filed its arguments on the 27th.
To be underscored at this point is that
"obviously to speed up the disposition
of cases", CIR "has a standing rule
against the extension of the ten-day
period for filing supporting
arguments". That no-extension policy
should have placed petitioner on
guard. It should not have simply folded
its arms, sit by supinely and relied on
the court's generosity. To compound
petitioner's neglect, it filed the
arguments only on August 27, 1953,
knowing full well that by that time the
reglementary period had expired.
Petitioner cannot complain against
CIR's ruling of September 16, 1963
dismissing the motion for
reconsideration on the ground that the
supporting arguments were filed out of
time. That ruling in effect denied the
motion for extension.
We rule that CIR's judgment has
become final and unappealable. We
may not review the same.
Notwithstanding this unequivocal and unmistakable
precedent, which has not been in any way modified,
much less revoked or reversed by this Court, the main
opinion has chosen not only to go into the merits of
petitioners' pose that the respondent court erred in
holding them guilty of bargaining in bad faith but also
to ultimately uphold petitioners' claim for
reinstatement on constitutional grounds.
Precisely because the conclusions of the main
opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and
peaceful assembly for redress of grievances, so
scholarly and masterful that it is bound to overwhelm
Us unless We note carefully the real issues in this
case, I am constrained, over and above my sincere
admiration for the eloquence and zeal of Mr. Justice
Makasiar's brilliant dissertation, to dutifully state that
as presented by petitioners themselves and in the
light of its attendant circumstances, this case does not
call for the resolution of any constitutional issue.
Admittedly, the invocation of any constitutional
guarantee, particularly when it directly affects
individual freedoms enshrined in the bill of rights,
deserves the closest attention of this Court. It is my
understanding of constitutional law and judicial
practices related thereto, however, that even the most
valuable of our constitutional rights may be protected
by the courts only when their jurisdiction over the
subject matter is unquestionably established and the
applicable rules of procedure consistent with
substantive and procedural due process are
observed. No doubt no constitutional right can be
sacrificed in the altar of procedural technicalities, very
often fittingly downgraded as niceties but as far as I
know, this principle is applied to annul or set aside
final judgments only in cases wherein there is a
possible denial of due process. I have not come
across any instance, and none is mentioned or cited
in the well-documented main opinion, wherein a final
and executory judgment has been invalidated and set
aside upon the ground that the same has the effect of
sanctioning the violation of a constitutional right,
unless such violation amounts to a denial of due
process.
Without support from any provision of the constitution
or any law or from any judicial precedent or reason of
principle, the main opinion nudely and unqualifiedly
asserts, as if it were universally established and
accepted as an absolute rule, that the violation of a
constitutional right divests the court of jurisdiction; and
as a consequence its judgment is null and void and
confers no rights". Chavez vs. Court of Appeals, 24
SCRA 663, which is mentioned almost in passing,
does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus
proceedings even after the finality of the judgment".
And, of course, Chavez is correct; as is also Abriol
vs. Homeres  which, in principle, served as its
2
precedent, for the very simple reason that in both of
those cases, the accused were denied due process.
In Chavez, the accused was compelled to testify
against himself as a witness for the prosecution; in
Abriol, the accused was denied his request to be
allowed to present evidence to establish his defense
after his demurrer to the People's evidence was
denied.
As may be seen, however, the constitutional issues
involved in those cases are a far cry from the one now
before Us. Here, petitioners do not claim they were
denied due process. Nor do they pretend that in
denying their motion for reconsideration, "the
respondent Court of Industrial Relations and private
firm trenched upon any of their constitutional
immunities ...," contrary to the statement to such
effect in the main opinion. Indeed, neither in the
petition herein nor in any of the other pleading of
petitioners can any direct or indirect assertion be
found assailing the impugned decision of the
respondent court as being null and void because it
sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our
resolution as follows:
Petitioners herein humbly submit that
the issue to be resolved is whether or
not the respondent Court en
banc under the facts and
circumstances, should consider the
Motion for Reconsideration filed by
your petitioners.
Petitioners, therefore, in filing this
petition for a writ of certiorari, humbly
beg this Honorable Court to treat this
petition under Rule 43 and 65 of the
Rules of Court.
xxx xxx xxx
The basic issue therefore is the
application by the Court en banc of the
strict and narrow technical rules of
procedure without taking into account
justice, equity and substantial merits
of the case.
On the other hand, the complete
argument submitted by petitioners on
this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning
in the exercise of a fundamental right
to peaceably assemble and petition
the government for redress of
grievances constitute bargaining in
bad faith? and,
Do the facts found by the court below
justify the declaration and conclusion
that the union was guilty of bargaining
in bad faith meriting the dismissal of
the persons allegedly responsible
therefore?
2. Was there grave abuse of discretion
when the respondent court refused to
act one way or another on the petition
for relief from the resolution of October
9, 1969?
IV
ARGUMENT
The respondent Court erred in finding
the petition union guilty of bargaining
in bad faith and consequently
dismissing the persons allegedly
responsible therefor, because such
conclusion is country to the evidence
on record; that the dismissal of
leaders was discriminatory.
As a result of exercising the
constitutional rights of freedom to
assemble and petition the duly
constituted authorities for redress of
their grievances, the petitioners were
charged and then condemned of
bargaining in bad faith.
The findings that petitioners were
guilty of bargaining in bad faith were
not borne out by the records. It was
not even alleged nor proven by
evidence. What has been alleged and
which the respondent company tried
to prove was that the demonstration
amounted to a strike and hence, a
violation of the provisions of the "no-
lockout — no strike" clause of the
collective bargaining agreement.
However, this allegation and proof
submitted by the respondent company
were practically resolved when the
respondent court in the same decision
stated categorically:
'The company alleges
that the walkout
because of the
demonstration is
tantamount to a
declaration of a strike.
We do not think so, as
the same is not rooted
in any industrial
dispute although there
is a concerted act and
the occurrence of a
temporary stoppage of
work.' (Emphasis
supplied, p. 4, 5th
paragraph, Decision.)
The respondent court's
findings that the
petitioner union
bargained in bad faith
is not tenable
because:
First, it has not been alleged nor
proven by the respondent company; .
Second, before the demonstration, the
petitioner union and the respondent
company convened twice in a meeting
to thresh out the matter of
demonstration. Petitioners requested
that the employees and workers be
excused but the respondent company
instead of granting the request or even
settling the matter so that the hours of
work will not be disrupted, immediately
threatened the employees of mass
dismissal;
Third, the refusal of the petitioner
union to grant the request of the
company that the first shift shall be
excluded in the demonstration is not
tantamount to bargaining in bad faith
because the company knew that the
officers of the union belonged to the
first shift, and that the union cannot go
and lead the demonstration without
their officers. It must be stated that the
company intends to prohibit its officers
to lead and join the demonstration
because most of them belonged to the
first shift; and
Fourth, the findings of the respondent
court that the demonstration if allowed
will practically give the union the right
to change the working conditions
agreed in the CBA is a conclusion of
facts, opinionated and not borne by
any evidence on record. The
demonstration did not practically
change the terms or conditions of
employment because it was only for
one (1) day and the company knew
about it before it went through. We
can even say that it was the company
who bargained in bad faith, when
upon representation of the Bureau of
Labor not to dismiss the employees
demonstrating, the company tacitly
approved the same and yet while the
demonstration was in progress, the
company filed a ULP Charge and
consequently dismissed those who
participated.
Records of the case show that more
or less 400 members of the union
participated in the demonstration and
yet, the respondent court selected the
eight officers to be dismissed from the
union thus losing their status as
employees of the respondent
company. The respondent court
should have taken into account that
the company's action in allowing the
return of more or less three hundred
ninety two (392) employees/members
of the union is an act of condonation
and the dismissal of the eight (8)
officers is an act of discrimination
(Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-
8197, Oct. 31, 1958). Seemingly, from
the opinion stated in the decision by
the court, while there is a collective
bargaining agreement, the union
cannot go on demonstration or go on
strike because it will change the terms
and conditions of employment agreed
in the CBA. It follows that the CBA is
over and above the constitutional
rights of a man to demonstrate and
the statutory rights of a union to strike
as provided for in Republic Act 875.
This creates a bad precedent because
it will appear that the rights of the
union is solely dependent upon the
CBA.
One of the cardinal primary rights
which must be respected in
proceedings before the Court of
Industrial Relations is that "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."
(Interstate Commerce Commission vs.
L & N R. Co., 227 U.S. 88, 33 S. Ct.
185, 57 Law ed. 431.) Only by
confining the administrative tribunal to
the evidence disclosed to the parties,
can the latter be protected in their
rights to know and meet the case
against them. (Ang Tibay vs. CIR,
G.R. No. L-45496, February 27,
1940.)
The petitioners respectfully and
humbly submit that there is no scintilla
of evidence to support the findings of
the respondent court that the
petitioner union bargained in bad faith.
Corollary therefore, the dismissal of
the individual petitioners is without
basis either in fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that
petitioners have been guilty of
bargaining in bad faith and
consequently lost their status as
employees of the respondent
company did not meet the meaning
and comprehension of "substantial
merits of the case." Bargaining in bad
faith has not been alleged in the
complaint (Annex "C", Petition) nor
proven during the hearing of the can.
The important and substantial merit of
the case is whether under the facts
and circumstances alleged in
respondent company's pleadings, the
demonstration done by the petitioners
amounted to on "illegal strike" and
therefore in violation of the "no strike
— no lock out" clause of the Collective
Bargaining Agreement. Petitioners
respectfully reiterate and humbly
submit, that the respondent court had
altogether opined and decided that
such demonstration does not amount
to a strike. Hence, with that findings,
petitioners should have been absolved
of the charges against them.
Nevertheless, the same respondent
court disregarding, its own findings,
went out of bounds by declaring the
petitioners as having "bargained in
faith." The stand of the respondent
court is fallacious, as it follows the
principle in logic as "non-siquitor";
2) That again respondents wanted to
impress that the freedom to assemble
 peaceably to air grievances against
the duly constituted authorities as
guaranteed in our Constitution is
subject to the limitation of the
agreement in the Collective
Bargaining Agreement. The
fundamental rights of the petitioners to
free speech and assembly is
paramount to the provision in the
Collective Bargaining Agreement and
such attempt to override the
constitutional provision would be null
and void. These fundamental rights of
the petitioners were not taken into
consideration in the deliberation of the
case by the respondent court;
Thus, it is clear from the foregoing contentions that
petitioners are not raising any issue of due process.
They do not posit that the decision of the industrial
court is null and void on that constitutional ground.
True it is that they fault the respondent court for
having priced the provisions of the collective
bargaining agreement herein involved over and above
their constitutional right to peaceably assemble and
petition for redress of their grievances against the
abuses of the Pasig police, but in no sense at all do
they allege or contend that such action affects its
jurisdiction in a manner that renders the proceedings
a nullity. In other words, petitioners themselves
consider the alleged flaw in the court's action as a
mere error of judgment rather than that of jurisdiction
which the main opinion projects. For this Court to
roundly and indignantly condemn private respondent
now for the grievous violation of the fundamental law
the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when
that specific issue has not been duly presented to Us
and properly argued, is to my mind unfair and unjust,
for the simple reason that the manner this case was
brought to Us does not afford it the opportunity to be
heard in regard to such supposed constitutional
transgression.
To be sure, petitioners do maintain, that respondent
court committed an error of jurisdiction by finding
petitioners guilty of bargaining in bad faith when the
charge against them alleged in the complaint was for
having conducted a mass demonstration, which
"amounted to a strike", in violation of the Collective
Bargaining Agreement, but definitely, this
jurisdictional question has no constitutional color.
Indeed, We can even assume for the sake of
argument, that the trial judge did err in not giving
preferential importance to the fundamental freedoms
invoked by the petitioners over the management and
proprietary attributes claimed by the respondent
private firm — still, We cannot rightly hold that such
disregard of petitioners' priceless liberties divested
His Honor of jurisdiction in the premises. The
unbending doctrine of this Court is that "decisions,
erroneous or not, become final after the period fixed
by law; litigations would be endless, no questions
would be finally settled; and titles to property would
become precarious if the losing party were allowed to
reopen them at any time in the future". 3
I only have to add to this that the fact that the error is
in the interpretation, construction or application of a
constitutional precept not constituting a denial of due
process, should not make any difference. Juridically,
a party cannot be less injured by an overlooked or
erroneously sanctioned violation of an ordinary statute
than by a misconstrued or constitutional injunction
affecting his individual, freedoms. In both instances,
there is injustice which should be intolerable were it
not for the more paramount considerations that inform
the principle of immutability of final judgments. I dare
say this must be the reason why, as I have already
noted, the main opinion does not cite any
constitutional provision, law or rule or any judicial
doctrine or principle supporting its basic holding that
infringement of constitutional guarantees, other than
denial of due process, divests courts of jurisdiction to
render valid judgments.
In this connection, it must be recalled that the
teaching of Philippine Association of Colleges
and Universities vs. Secretary of
Education,  following Santiago vs. Far Eastern
4
Broadcasting,  is that "it is one of our (the Supreme
5
Court's) decisional practices that unless a
constitutional point is specifically raised, insisted upon
and adequately argued, the court will not consider it".
In the case at bar, the petitioners have not raised,
they are not insisting upon, much less have they
adequately argued the constitutional issues so
extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the
Supreme Court to hold that the erroneous resolution
by a court of a constitutional issue not amounting to a
denial of due process renders its judgment or decision
null and void, and, therefore, subject to attack even
after said judgment or decision has become final and
executory. I have actually tried to bring myself into
agreement with the views of the distinguished and
learned writer of the main opinion, if only to avoid
dissenting from his well prepared thesis, but its
obvious incongruity with settled jurisprudence always
comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me
as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate
jurisdiction under Section 2(5) of Article VII of the
Philippines  (reenacted practically ipssisimis verbis in
6
Section 5(2) of the 1973 Constitution), only to realize
upon further reflection that the very power granted to
us to review decisions of lower courts involving
questions of law(and these include constitutional
issues not affecting the validity of statutes, treaty,
executive agreement, etc.) is not unqualified but has
to be exercised only in the manner provided in the law
of the Rules of Court. In other words, before We can
exercise appellate jurisdiction over constitutional
issues, no matter how important they may be, there
must first be a showing of compliance with the
applicable procedural law or rules, among them,
those governing appeals from the Court of Industrial
Relations involved herein. Consequently, if by law or
rule, a judgment of the industrial court is already final
and executory, this Court would be devoid of power
and authority to review, much less alter or modify the
same, absent any denial of due process or fatal
defect of jurisdiction. It must be borne in mind that the
situation confronting Us now is not merely whether or
not We should pass upon a question or issue not
specifically raised by the party concerned, which, to
be sure, could be enough reason to dissuade Us from
taking pains in resolving the same; rather, the real
problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated
earlier, no less than Justice Conrado Sanchez, the
writer of Chavez, supra., which is being relied upon by
the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square
applicability to the facts of this case, We have no
choice but to follow, that is, that in view of
reconsideration but even their argument supporting
the same within the prescribed period, "the judgment
(against them)has become final, beyond recall".
Indeed, when I consider that courts would be useless
if the finality and enforceability of their judgments are
made contingent on the correctness thereof from the
constitutional standpoint, and that in truth, whether or
not they are correct is something that is always
dependent upon combined opinion of the members of
the Supreme Court, which in turn is naturally as
changeable as the members themselves are
changed, I cannot conceive of anything more
pernicious and destructive to a trustful administration
of justice than the idea that, even without any showing
of denial of due process or want of jurisdiction of the
court, a final and executory judgment of such court
may still be set aside or reopened in instances other
than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil
Code.  And just to emphasize the policy of the law of
7 judgments but rather on the correct interpretation of
respecting judgments once they have become final,
even as this Court has ruled that final decisions are
mute in the presence of fraud which the law abhors,  it 8
is only when the fraud is extrinsic and not intrinsic that
final and executory judgments may be set aside,  and9
this only when the remedy is sought within the
prescriptive period. 
10
Apropos here is the following passage in Li Kim
Those vs. Go Sin Kaw, 82 Phil. 776:
Litigation must end and terminate
sometime and somewhere, and it is
essential to an effective and efficient
administration of justice that once a
judgment has become final, the
winning party be not, through a mere
subterfuge, deprived of the fruits of the
verdict. Courts must therefore guard
against any scheme calculated to
bring about that result. Constituted as
they are to put an end to
controversies, courts should frown
upon any attempt to prolong them.
Likewise the stern admonition of Justice George
Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice
demand that, at the risk of occasional
errors, judgments of courts should
become final at some definite date
fixed by law. The very object for which
courts were instituted was to put an
end to controversies. To fulfill this
purpose and to do so speedily, certain
time limits, more or less arbitrary,
have to be set up to spur on the
slothful. 'If a vacillating, irresolute
judge were allowed to thus keep
causes ever within his power, to
determine and redetermine them term
after term, to bandy his judgments
about from one party to the other, and
to change his conclusions as freely
and as capriciously as a chamelon
may change its hues, then litigation
might become more intolerable than
the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs.
Judge de los Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as
to the unalterability and invulnerability of final
the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:
The point of res adjudicata discussed
in the dissents has not escaped my
attention. Neither am I overlooking the
 point of the Chief Justice regarding the
dangerous and inimical implications of
a ruling that would authorize the
revision, amendment or alteration of a
final and executory judgment. I want to
emphasize that my position in this
opinion does not detract a whit from
the soundness, authority and binding
force of existing doctrines enjoining
any such modifications. The public
policy of maintaining faith and respect
in judicial decisions, which inform said
doctrines, is admittedly of the highest
order. I am not advocating any
departure from them. Nor am I trying
to put forth for execution a decision
that I believe should have been rather
than what it is. All I am doing is to view
not the judgment of Judge Tengco but
the decision of this Court in G.R. No.
L-20950, as it is and not as I believe it
should have been, and, by opinion, I
would like to guide the court a quo as
to what, in my own view, is the true
and correct meaning and implications
of decision of this Court, not that of
Judge Tengco's.
The main opinion calls attention to many instant
precisely involving cases in the industrial court,
wherein the Court refused to be constrained by
technical rules of procedure in its determination to
accord substantial justice to the parties I still believe
in those decisions, some of which were penned by
me. I am certain, however, that in none of those
precedents did this Court disturb a judgment already
final and executory. It too obvious to require extended
elucidation or even reference any precedent or
authority that the principle of immutability of final
judgments is not a mere technicality, and if it may
considered to be in a sense a procedural rule, it is
one that is founded on public policy and cannot,
therefore, yield to the ordinary plea that it must give
priority to substantial justice.
Apparently vent on looking for a constitutional point of
due process to hold on, the main opinion goes far as
to maintain that the long existing and constantly
applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations,
"as applied in this case does not implement on
reinforce or strengthen the constitutional rights
affected, but instead constricts the same to the point
of nullifying the enjoyment thereof by the petitioning
employees. Said Court on Industrial Relations Rule,
promulgated as it was pursuant to mere legislative
delegation, is unreasonable and therefore is beyond
the authority granted by the Constitution and the law.
A period of five (5) days within which to file a motion
for reconsideration is too short, especially for the
aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In
case of the Court of Appeal and the Supreme Court, a
period of fifteen (15) days has been fixed for the filing
of the motion for re-hearing or reconsideration (Sec.
10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56,
Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one
day if September 28, 1969 was not a Sunday. This
fact accentuates the unreasonableness of the Court
of Industrial Relations Rule insofar as circumstances
of the instant case are concerned."
I am afraid the zeal and passion of these arguments
do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can
hardly be any factual or logical basis for such a critical
view of the rule in question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the
motion, in six copies, within five (5)
days from the date on which he
receives notice of the order or
decision, object of the motion for
reconsideration, the same to be
verified under oath with respect to the
correctness of the allegations of fact,
and serving a copy thereof, personally
or by registered mail, on the adverse
party. The latter may file an answer, in
six (6) copies, duly verified under oath.
Sec. 16. Both the motion and the
answer shall be submitted with
arguments supporting the same. If the
arguments can not be submitted
simultaneously with said motions,
upon notice Court, the movant shall
file same within ten (10) days from the
date of the filing of his motion for
reconsideration. The adverse party
shall also file his answer within ten
(10) days from the receipt by him of a
copy of the arguments submitted by
the movant.
Sec. 17. After an answer to the motion
is registered, or after ten (10) days
from the receipt of the arguments in
support of said motion having been
filed, the motion shall be deemed
submitted for resolution of the Court in
banc, unless it is considered
necessary to bear oral arguments, in
which case the Court shall issue the
 corresponding order or notice to that
effect.
Failure to observe the above-specified
periods shall be sufficient cause for
dismissal of the motion for
reconsideration or striking out of the
answer and/or the supporting
arguments, as the case may be. (As
amended April 20, 1951, Court of
Industrial Relations.).
As implemented and enforced in actual practice, this
rule, as everyone acquainted with proceedings in the
industrial court well knows, precisely permits the party
aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any
argument or lengthy discussion and with barely a brief
statement of the fundamental ground or grounds
therefor, without prejudice to supplementing the same
by making the necessary exposition, with citations
laws and authorities, in the written arguments the be
filed (10) days later. In truth, such a pro-forma motion
has to effect of just advising the court and the other
party that the movant does not agree with the
judgment due to fundamental defects stated in brief
and general terms. Evidently, the purpose of this
requirement is to apprise everyone concerned within
the shortest possible time that a reconsideration is to
sought, and thereby enable the parties concerned to
make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is
prolonged. It must borne in mind that cases in the
industrial court may involve affect the operation of
vital industries in which labor-management problems
might require day-to-day solutions and it is to the best
interests of justice and concerned that the attitude of
each party at every imports juncture of the case be
known to the other so that both avenues for earlier
settlement may, if possible, be explored.
There can be no reason at all to complain that the
time fixed by the rule is short or inadequate. In fact,
the motion filed petitioners was no more than the
following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents,
through counsel, to this Honorable
Court most respectfully moves for the
RECONSIDERATION of the Order of
this Honorable Court dated September
17, 1969 on the ground that the same
is not in accordance with law,
evidence and facts adduced during
the hearing of the above entitled case.
Movant-respondents most respectfully
move for leave to file their respective
arguments within ten (10) days
pursuant to Section 15, 16 & 17 as
amended of the Rules of Court.
WHEREFORE, it is respectfully
prayed that this Motion for
Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an
unreasonable period for the filing of
such a motion is to me simply
incomprehensible. What worse in this
case is that petitioners have not even
taken the trouble of giving an
explanation of their inability to comply
with the rule. Not only that, petitioners
were also late five (5) days in filing
their written arguments in support of
their motion, and, the only excuse
offered for such delay is that both the
President of the Union and the office
clerk who took charge of the matter
forgot to do what they were instructed
to do by counsel, which, according to
this Court, as I shall explain anon "is
the most hackneyed and habitual
subterfuge employed by litigants who
fail to observe the procedural
requirements prescribed by the Rules
of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly,
the main opinion would want the Court
to overlook such nonchalance and
indifference.
In this connection, I might add that in my considered
opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than
procedural in their real nature, for in their operation
they have the effect of either creating or terminating
rights pursuant to the terms of the particular judgment
concerned. And the fact that the court that rendered
such final judgment is deprived of jurisdiction or
authority to alter or modify the same enhances such
substantive character. Moreover, because they have
the effect of terminating rights and the enforcement
thereof, it may be said that said rules partake of the
nature also of rules of prescription, which again are
substantive. Now, the twin predicates of prescription
are inaction or abandonment and the passage of time
or a prescribed period. On the other hand,
procrastination or failure to act on time is
unquestionably a form of abandonment, particularly
when it is not or cannot be sufficiently explained. The
most valuable right of a party may be lost by
prescription, and be has no reason to complain
because public policy demands that rights must be
asserted in time, as otherwise they can be deemed
waived.
I see no justification whatsoever for not applying
these self-evident principles to the case of petitioners.
Hence, I feel disinclined to adopt the suggestion that
the Court suspend, for the purposes of this case the
rules aforequoted of the Court of Industrial Relations.
Besides, I have grave doubts as to whether we can
suspend rules of other courts, particularly that is not
under our supervisory jurisdiction, being
administrative agency under the Executive
Department Withal, if, in order to hasten the
administration of substance justice, this Court did
exercise in some instances its re power to amend its
rules, I am positively certain, it has done it for the
purpose of reviving a case in which the judo has
already become final and executory.
Before closing, it may be mentioned here, that as
averred their petition, in a belated effort to salvage
their Petitioners filed in the industrial court on October
31, 1969 a Petition for relief alleging that their failure
to file "Arguments in Support of their Motion for
Reconsideration within the reglementary period or five
(5), if not seven (7), days late "was due to excusable
negligence and honest mistake committed by the
President of the respondent Union and on office clerk
of the counsel for respondents as shown attested in
their respective affidavits", (See Annexes K, and K-2)
which in brief, consisted allegedly of the President's
having forgotten his appointment with his lawyer
"despite previous instructions and of the said office
employee having also coincidentally forgotten "to do
the work instructed (sic) to (him) by Atty. Osorio"
because he "was busy with clerical jobs". No
sympathy at all can be evoked these allegations, for,
under probably more justification circumstances, this
Court ruled out a similar explanation previous case
this wise:
We find merit in PAL's petition. The
excuse offered respondent Santos as
reason for his failure to perfect in due
time appeal from the judgment of the
Municipal Court, that counsel's clerk
forgot to hand him the court notice, is
the most hackneyed and habitual
subterfuge employed by litigants who
fail to observe procedural
requirements prescribed by the Rules
of Court. The uncritical acceptance of
this kind of common place excuses, in
the face of the Supreme Court's
repeated rulings that they are neither
credible nor constitutive of excusable
negligence (Gaerlan vs. Bernal, L-
4039, 29 January 1952; Mercado vs.
Judge Domingo, L-19457, December
1966) is certainly such whimsical
exercise of judgment to be a grave
abuse of discretion. (Philippine Air
Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the
industrial court sought to be reviewed in the present
case has already become final and executory, nay,
not without the fault of the petitioners, hence, no
matter how erroneous from the constitutional
viewpoint it may be, it is already beyond recall, I vote
to dismiss this case, without pronouncement as to
costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at
Malacañang on March 4, 1969 in protest against
alleged abuses of the Pasig police department, upon
two days' prior notice to respondent employer company, as against the
latter's insistence that the first shift 1 should not participate but instead
report for work, under pain of dismissal, the industrial court ordered the
dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union
guilty on respondent's complaint of bargaining in bad
faith and unfair labor practice for having so carried out
the mass demonstration, notwithstanding that it
concededly was not a declaration of strike nor
directed in any manner against respondent employer,
and ordering the dismissal of the union office
manifestly constituted grave abuse of discretion in
fact and in law.
There could not be, in fact, bargaining in bad faith nor
unfair labor practice since respondent firm conceded
that "the demonstration is an inalienable right of the
union guaranteed' by the Constitution" and the union
up to the day of the demonstration pleaded by
cablegram to the company to excuse the first shift and
allow it to join the demonstration in accordance with
their previous requests.
Neither could there be, in law, a willful violation of the
collective bargaining agreement's "no-strike" clause
as would warrant the union leaders' dismissal, since
as found by respondent court itself the mass
demonstration was not a declaration of a strike, there
being no industrial dispute between the protagonists,
but merely the occurrence of a temporary stoppage of
work" to enable the workers to exercise their
constitutional rights of free expression, peaceable
assembly and petition for redress of grievance against
alleged police excesses.
Respondent court's en banc resolution dismissing
petitioners' motion for reconsideration for having been
filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to
the negligence of petitioners' counsel and/or the union
president should likewise be set aside as a manifest
act of grave abuse of discretion. Petitioners' petition
for relief from the normal adverse consequences of
the late filing of their motion for reconsideration due to
such negligence — which was not acted upon by
respondent court — should have been granted,
considering the monstrous injustice that would
otherwise be caused the petitioners through their
summary dismissal from employment, simply because
they sought in good faith to exercise basic human
rights guaranteed them by the Constitution. It should
be noted further that no proof of actual loss from the
one-day stoppage of work was shown by respondent
company, providing basis to the main opinion's
premise that its insistence on dismissal of the union
leaders for having included the first shift workers in
the mass demonstration against its wishes was but an
act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the
individual petitioners and the constitutional injunction
to afford protection to labor be given true substance
and meaning. No person may be deprived of such
basic rights without due process — which is but
"responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided ...
Due process is thus hostile to any official action
marred by lack of reasonableness. Correctly it has
been identified as freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the
appealed orders of the respondent court and concur
in the judgment for petitioners as set forth in the main
opinion.
2) People vs. Marti (G.R. No. 81561, January 18, 1991)
BIDIN, J.:
This is an appeal from a decision * rendered by the
Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to
Section 4, Article 11 and Section 2 (e) (i), Article 1 of
Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act.
The facts as summarized in the brief of the
prosecution are as follows:
On August 14, 1987, between 10:00 and
11:00 a.m., the appellant and his common-law
wife, Shirley Reyes, went to the booth of the
"Manila Packing and Export Forwarders" in
the Pistang Pilipino Complex, Ermita, Manila,
carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and
no relation to Shirley Reyes) attended to
them. The appellant informed Anita Reyes
that he was sending the packages to a friend
in Zurich, Switzerland. Appellant filled up the
contract necessary for the transaction, writing
therein his name, passport number, the date
of shipment and the name and address of the
consignee, namely, "WALTER FIERZ,
Mattacketr II, 8052 Zurich, Switzerland"
(Decision, p. 6)
Anita Reyes then asked the appellant if she
could examine and inspect the packages.
Appellant, however, refused, assuring her that
the packages simply contained books, cigars,
and gloves and were gifts to his friend in
Zurich. In view of appellant's representation,
Anita Reyes no longer insisted on inspecting
the packages. The four (4) packages were
then placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-foam
was placed at the bottom and on top of the
packages before the box was sealed with
masking tape, thus making the box ready for
shipment (Decision, p. 8).
Before delivery of appellant's box to the
Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and
husband of Anita (Reyes), following standard
operating procedure, opened the boxes for
final inspection. When he opened appellant's
box, a peculiar odor emitted therefrom. His
curiousity aroused, he squeezed one of the
bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the
gloves. He made an opening on one of the
cellophane wrappers and took several grams
of the contents thereof (tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter
reporting the shipment to the NBI and
requesting a laboratory examination of the
samples he extracted from the cellophane
wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of
appellant's shipment to the Narcotics Section
 of the National Bureau of Investigation (NBI),
at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section.
Job Reyes informed the NBI that the rest of
the shipment was still in his office. Therefore,
Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at
Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which
appellant's packages were placed and, in the
presence of the NBI agents, opened the top
flaps, removed the styro-foam and took out
the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to
have been contained inside the cellophane
wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
The package which allegedly contained books
was likewise opened by Job Reyes. He
discovered that the package contained bricks
or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera
cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6,
1987).
The NBI agents made an inventory and took
charge of the box and of the contents thereof,
after signing a "Receipt"
acknowledging custody of the said effects
(tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant
but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the
agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while
claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day
the Narcotics Section of the NBI submitted the dried
leaves to the Forensic Chemistry Section for
laboratory examination. It turned out that the dried
leaves were marijuana flowering tops as certified by
the forensic chemist. (Appellee's Brief, pp. 9-
11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant
for violation of RA 6425, otherwise known as the
Dangerous Drugs Act.
After trial, the court a quo rendered the assailed
decision.
In this appeal, accused/appellant assigns the
following errors, to wit:
THE LOWER COURT ERRED IN
ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS
CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN
CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS
UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED.
THE LOWER COURT ERRED IN NOT
GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON
HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1; Rollo,
p. 55)
1. Appellant contends that the evidence subject of the
imputed offense had been obtained in violation of his
constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3,
Art. III, Constitution) and therefore argues that the
same should be held inadmissible in evidence (Sec. 3
(2), Art. III).
Sections 2 and 3, Article III of the Constitution
provide:
Sec. 2. The right of the people to be secure in
their persons, houses, papers and effects
against unreasonable searches and seizures
of whatever nature and for any purpose shall
be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except
upon lawful order of the court, or when public
safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this
or the preceding section shall be inadmissible
for any purpose in any proceeding.
Our present constitutional provision on the guarantee
against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not
be violated, and no warrants shall issue but
upon probable cause, to be determined by the
judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3],
Article III)
was in turn derived almost verbatim from the Fourth
Amendment ** to the United States Constitution. As
such, the Court may turn to the pronouncements of
the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in
this jurisdiction.
Thus, following the exclusionary rule laid down
in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081
[1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure
warrant, abandoning in the process the ruling earlier
adopted in Moncado v. People's Court (80 Phil. 1
[1948]) wherein the admissibility of evidence was not
affected by the illegality of its seizure. The 1973
Charter (Sec. 4 [2], Art. IV) constitutionalized
the Stonehill ruling and is carried over up to the
present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the
exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v.
Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66
SCRA 299 [1975]; People v. Burgos, 144 SCRA 1
[1986]; Roan v. Gonzales, 145 SCRA 687
[1987]; See also Salazar v. Hon. Achacoso, et al., GR
No. 81510, March 14, 1990).
It must be noted, however, that in all those cases
adverted to, the evidence so obtained were invariably
procured by the State acting through the medium of
its law enforcers or other authorized government
agencies.
On the other hand, the case at bar assumes a
peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a
private person, acting in a private capacity and
without the intervention and participation of State
authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional
right against unreasonable searches and seizure has
been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of
governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48
SCRA 345 [1972]:
1. This constitutional right (against
unreasonable search and seizure) refers to
the immunity of one's person, whether citizen
or alien, from interference by government,
included in which is his residence, his papers,
and other possessions. . . .
. . . There the state, however powerful, does
not as such have the access except under the
circumstances above noted, for in the
traditional formulation, his house, however
humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which
is called upon to refrain from any invasion of
his dwelling and to respect the privacies of his
life. . . . (Cf. Schermerber v. California, 384
US 757 [1966] and Boyd v. United States, 116
US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct.
547; 65 L.Ed. 1048), the Court there in construing the
right against unreasonable searches and seizures
declared that:
(t)he Fourth Amendment gives protection
against unlawful searches and seizures, and
as shown in previous cases, its protection
applies to governmental action. Its origin and
history clearly show that it was intended as a
restraint upon the activities of sovereign
authority, and was not intended to be a
limitation upon other than governmental
agencies; as against such authority it was the
purpose of the Fourth Amendment to secure
the citizen in the right of unmolested
occupation of his dwelling and the possession
of his property, subject to the right of seizure
by process duly served.
The above ruling was reiterated in State v. Bryan (457
P.2d 661 [1968]) where a parking attendant who
searched the automobile to ascertain the owner
thereof found marijuana instead, without the
knowledge and participation of police authorities, was
declared admissible in prosecution for illegal
possession of narcotics.
And again in the 1969 case of Walker v. State (429
S.W.2d 121), it was held that the search and seizure
clauses are restraints upon the government and its
agents, not upon private individuals (citing People v.
Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965);
State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373
F.2d 517 (1967). The Court there said:
The search of which appellant complains,
however, was made by a private citizen — the
owner of a motel in which appellant stayed
overnight and in which he left behind a travel
case containing the evidence*** complained
of. The search was made on the motel
owner's own initiative. Because of it, he
became suspicious, called the local police,
informed them of the bag's contents, and
made it available to the authorities.
The fourth amendment and the case law
applying it do not require exclusion of
evidence obtained through a search by a
private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into
possession of the Government without the latter
transgressing appellant's rights against unreasonable
search and seizure, the Court sees no cogent reason
why the same should not be admitted against him in
the prosecution of the offense charged.
Appellant, however, would like this court to believe
that NBI agents made an illegal search and seizure of
the evidence later on used in prosecuting the case
which resulted in his conviction.
The postulate advanced by accused/appellant needs
to be clarified in two days. In both instances, the
argument stands to fall on its own weight, or the lack
of it.
First, the factual considerations of the case at bar
readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of
the forwarding agency, who made search/inspection
of the packages. Said inspection was reasonable and
a standard operating procedure on the part of Mr.
Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of
Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8;
Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box
containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to
his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and
entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to the
postulate of accused/appellant.
Second, the mere presence of the NBI agents did not
convert the reasonable search effected by Reyes into
a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which
is in plain sight is not a search. Having observed that
which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v.
State, 429 SW2d 135). Where the contraband articles
are identified without a trespass on the part of the
arresting officer, there is not the search that is
prohibited by the constitution (US v. Lee 274 US 559,
71 L.Ed. 1202 [1927]; Ker v. State of California 374
US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429
SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was
likewise held that where the property was taken into
custody of the police at the specific request of the
manager and where the search was initially made by
the owner there is no unreasonable search and
seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is
not meant to be invoked against acts of private
individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must
always be subject to protection. But protection against
whom? Commissioner Bernas in his sponsorship
speech in the Bill of Rights answers the query which
he himself posed, as follows:
First, the general reflections. The protection of
fundamental liberties in the essence of
constitutional democracy. Protection against
whom? Protection against the state. The Bill
of Rights governs the relationship between
the individual and the state. Its concern is not
the relation between individuals, between a
private individual and other individuals. What
the Bill of Rights does is to declare some
forbidden zones in the private sphere
inaccessible to any power holder.
(Sponsorship Speech of Commissioner
 Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)
The constitutional proscription against unlawful
searches and seizures therefore applies as a restraint
directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could
only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise
of power is imposed.
If the search is made upon the request of law
enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if
the search is made at the behest or initiative of the
proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without
the intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked
for only the act of private individual, not the law
enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals so
as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions
of the 1935 Constitution has been modified by the
present phraseology found in the 1987 Charter,
expressly declaring as inadmissible any evidence
obtained in violation of the constitutional prohibition
against illegal search and seizure, it matters not
whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).
The argument is untenable. For one thing, the
constitution, in laying down the principles of the
government and fundamental liberties of the people,
does not govern relationships between individuals.
Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re:
Sec. 2, Art. III) relate to the issuance of either a
search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof
(See Soliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No. 12
[June 30, 1987]. The modifications introduced deviate
in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed
against. The restraint stayed with the State and did
not shift to anyone else.
Corolarilly, alleged violations against unreasonable
search and seizure may only be invoked against the
State by an individual unjustly traduced by the
exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation
of the Bill of Rights should also be construed as an
act of the State would result in serious legal
complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured
by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional
rights to privacy and communication.
2. In his second assignment of error, appellant
contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the
constitution while under custodial investigation were
not observed.
Again, the contention is without merit, We have
carefully examined the records of the case and found
nothing to indicate, as an "undisputed fact", that
appellant was not informed of his constitutional rights
or that he gave statements without the assistance of
counsel. The law enforcers testified that
accused/appellant was informed of his constitutional
rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence,
there being no evidence to the contrary. What is clear
from the records, on the other hand, is that appellant
refused to give any written statement while under
investigation as testified by Atty. Lastimoso of the
NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs.
Job Reyes. What about the accused here, did
you investigate the accused together with the
girl?
WITNESS:
Yes, we have interviewed the accused
together with the girl but the accused availed
of his constitutional right not to give any
written statement, sir. (TSN, October 8, 1987,
p. 62; Original Records, p. 240)
The above testimony of the witness for the
prosecution was not contradicted by the defense on
cross-examination. As borne out by the records,
neither was there any proof by the defense that
appellant gave uncounselled confession while being
investigated. What is more, we have examined the
assailed judgment of the trial court and nowhere is
there any reference made to the testimony of
appellant while under custodial investigation which
was utilized in the finding of conviction. Appellant's
second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of
error, appellant would like us to believe that he was
not the owner of the packages which contained
prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along
Ermita, Manila: that in the course of their 30-minute
conversation, Michael requested him to ship the
packages and gave him P2,000.00 for the cost of the
shipment since the German national was about to
leave the country the next day (October 15, 1987,
TSN, pp. 2-10).
Rather than give the appearance of veracity, we find
appellant's disclaimer as incredulous, self-serving and
contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger
struck in half an hour could not have pushed a man to
entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily
accede to comply with the undertaking without first
ascertaining its contents. As stated by the trial court,
"(a) person would not simply entrust contraband and
of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a
complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such
undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-
so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony
of credible witnesses who testify on affirmative
matters (People v. Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect
considering that, as per records of the Interpol, he
was previously convicted of possession of hashish by
the Kleve Court in the Federal Republic of Germany
on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss
national, was likewise convicted for drug abuse and is
just about an hour's drive from appellant's residence
in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p.
93).
Evidence to be believed, must not only proceed from
the mouth of a credible witness, but it must be
credible in itself such as the common experience and
observation of mankind can approve as probable
under the circumstances (People v. Alto, 26 SCRA
342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg.
130; see also People v. Sarda, 172 SCRA 651 [1989];
People v. Sunga, 123 SCRA 327 [1983]); Castañares
v. CA, 92 SCRA 567 [1979]). As records further show,
appellant did not even bother to ask Michael's full
name, his complete address or passport number.
Furthermore, if indeed, the German national was the
owner of the merchandise, appellant should have so
indicated in the contract of shipment (Exh. "B",
Original Records, p. 40). On the contrary, appellant
signed the contract as the owner and shipper thereof
giving more weight to the presumption that things
which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule
131). At this point, appellant is therefore estopped to
claim otherwise.
Premises considered, we see no error committed by
the trial court in rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding
appellant guilty beyond reasonable doubt of the crime
charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
3) Gamboa vs. Teves (G.R. No. 176579 (June 28, 2011)
RESOLUTION
CARPIO, J.:
This resolves the motions for reconsideration of the
28 June 2011 Decision filed by (1) the Philippine
Stock Exchange's (PSE) President,  (2) Manuel V.
1 
Pangilinan (Pangilinan), (3) Napoleon L. Nazareno
2 
(Nazareno ), and ( 4) the Securities and Exchange
3 
Commission (SEC) (collectively, movants ).
4 
The Office of the Solicitor General (OSG) initially filed
a motion for reconsideration on behalfofthe
SEC, assailing the 28 June 2011 Decision. However,
5 
it subsequently filed a Consolidated Comment on
behalf of the State, declaring expressly that it agrees
6 
with the Court's definition of the term "capital" in
Section 11, Article XII of the Constitution. During the
Oral Arguments on 26 June 2012, the OSG reiterated
its position consistent with the Court's 28 June 2011
Decision.
We deny the motions for reconsideration.
I.
Far-reaching implications of the legal issue justify
treatment of petition for declaratory relief as one
for mandamus.
As we emphatically stated in the 28 June 2011
Decision, the interpretation of the term "capital" in
Section 11, Article XII of the Constitution has far-
reaching implications to the national economy. In fact,
a resolution of this issue will determine whether
Filipinos are masters, or second-class citizens, in their
own country. What is at stake here is whether
Filipinos or foreigners will have effective control of
the Philippine national economy. Indeed, if ever there
is a legal issue that has far-reaching implications to
the entire nation, and to future generations of
Filipinos, it is the threshold legal issue presented in
this case.
Contrary to Pangilinan’s narrow view, the serious
economic consequences resulting in the interpretation
of the term "capital" in Section 11, Article XII of the
Constitution undoubtedly demand an immediate
adjudication of this issue. Simply put, the far-
reaching implications of this issue justify the
treatment of the petition as one for mandamus. 7
In Luzon Stevedoring Corp. v. Anti-Dummy Board, the 8 
Court deemed it wise and expedient to resolve the
case although the petition for declaratory relief could
be outrightly dismissed for being procedurally
defective. There, appellant admittedly had already
committed a breach of the Public Service Act in
relation to the Anti-Dummy Law since it had been
employing non- American aliens long before the
decision in a prior similar case. However, the main
issue in Luzon Stevedoring was of transcendental
importance, involving the exercise or enjoyment of
rights, franchises, privileges, properties and
businesses which only Filipinos and qualified
corporations could exercise or enjoy under the
Constitution and the statutes. Moreover, the same
issue could be raised by appellant in an appropriate
action. Thus, in Luzon Stevedoring the Court deemed
it necessary to finally dispose of the case for the
guidance of all concerned, despite the apparent
procedural flaw in the petition.
The circumstances surrounding the present case,
such as the supposed procedural defect of the
petition and the pivotal legal issue involved, resemble
those in Luzon Stevedoring. Consequently, in the
interest of substantial justice and faithful adherence to
the Constitution, we opted to resolve this case for the
guidance of the public and all concerned parties.
II.
No change of any long-standing rule;
thus, no redefinition of the term "capital."
Movants contend that the term "capital" in Section 11,
Article XII of the Constitution has long been settled
and defined to refer to the total outstanding shares of
stock, whether voting or non-voting. In fact, movants
claim that the SEC, which is the administrative
agency tasked to enforce the 60-40 ownership
requirement in favor of Filipino citizens in the
Constitution and various statutes, has consistently
adopted this particular definition in its numerous
opinions. Movants point out that with the 28 June
2011 Decision, the Court in effect introduced a "new"
definition or "midstream redefinition" of the term
9 
"capital" in Section 11, Article XII of the Constitution.
This is egregious error.
For more than 75 years since the 1935 Constitution,
the Court has not interpreted or defined the term
"capital" found in various economic provisions of the
1935, 1973 and 1987 Constitutions. There has never
been a judicial precedent interpreting the term
"capital" in the 1935, 1973 and 1987 Constitutions,
until now. Hence, it is patently wrong and utterly
baseless to claim that the Court in defining the term
"capital" in its 28 June 2011 Decision modified,
reversed, or set aside the purported long-standing
definition of the term "capital," which supposedly
refers to the total outstanding shares of stock,
whether voting or non-voting. To repeat, until the
present case there has never been a Court ruling
categorically defining the term "capital" found in the
various economic provisions of the 1935, 1973 and
1987 Philippine Constitutions.
The opinions of the SEC, as well as of the
Department of Justice (DOJ), on the definition of the
term "capital" as referring to both voting and non-
voting shares (combined total of common and
preferred shares) are, in the first place, conflicting and
inconsistent. There is no basis whatsoever to the
claim that the SEC and the DOJ have consistently
and uniformly adopted a definition of the term "capital"
contrary to the definition that this Court adopted in its
28 June 2011 Decision.
In DOJ Opinion No. 130, s. 1985, dated 7 October
10 
1985, the scope of the term "capital" in Section 9,
Article XIV of the 1973 Constitution was raised, that
is, whether the term "capital" includes "both preferred
and common stocks." The issue was raised in relation
to a stock-swap transaction between a Filipino and a
Japanese corporation, both stockholders of a
domestic corporation that owned lands in the
Philippines. Then Minister of Justice Estelito P.
Mendoza ruled that the resulting ownership structure
of the corporation would
be unconstitutional because 60% of the voting stock
would be owned by Japanese while Filipinos would
own only 40% of the voting stock, although when the
non-voting stock is added, Filipinos would own 60% of
the combined voting and non-voting stock. This
ownership structure is remarkably similar to the
current ownership structure of PLDT. Minister
Mendoza ruled:
xxxx
Thus, the Filipino group still owns sixty (60%) of the
entire subscribed capital stock (common and
preferred) while the Japanese investors control sixty
percent (60%) of the common (voting) shares.
It is your position that x x x since Section 9,
Article XIV of the Constitution uses the word
"capital," which is construed "to include both
preferred and common shares" and "that where
the law does not distinguish, the courts shall not
distinguish."
xxxx
In light of the foregoing jurisprudence, it is my
opinion that the stock-swap transaction in
question may not be constitutionally upheld.
While it may be ordinary corporate practice to classify
corporate shares into common voting shares and
preferred non-voting shares, any arrangement which
attempts to defeat the constitutional purpose should
be eschewed. Thus, the resultant equity
arrangement which would place ownership of
60% of the common (voting) shares in the
11  DOJ and the SEC on the definition of the term
Japanese group, while retaining 60% of the total
percentage of common and preferred shares in
Filipino hands would amount to circumvention of
the principle of control by Philippine stockholders
that is implicit in the 60% Philippine nationality
requirement in the Constitution. (Emphasis
supplied)
In short, Minister Mendoza categorically rejected the
theory that the term "capital" in Section 9, Article XIV
of the 1973 Constitution includes "both preferred and
common stocks" treated as the same class of shares
regardless of differences in voting rights and
privileges. Minister Mendoza stressed that the 60-40
ownership requirement in favor of Filipino citizens in
the Constitution is not complied with unless the
corporation "satisfies the criterion of beneficial
ownership" and that in applying the same "the
primordial consideration is situs of control."
On the other hand, in Opinion No. 23-10 dated 18
August 2010, addressed to Castillo Laman Tan
Pantaleon & San Jose, then SEC General Counsel
Vernette G. Umali-Paco applied the Voting Control
Test, that is, using only the voting stock to determine
whether a corporation is a Philippine national. The
Opinion states:
Applying the foregoing, particularly the Control
Test, MLRC is deemed as a Philippine national
because: (1) sixty percent (60%) of its outstanding
capital stock entitled to vote is owned by a
Philippine national, the Trustee; and (2) at least sixty
percent (60%) of the ERF will accrue to the benefit of
Philippine nationals. Still pursuant to the Control
Test, MLRC’s investment in 60% of BFDC’s
outstanding capital stock entitled to vote shall be
deemed as of Philippine nationality, thereby
qualifying BFDC to own private land.
Further, under, and for purposes of, the FIA, MLRC
and BFDC are both Philippine nationals, considering
that: (1) sixty percent (60%) of their
respective outstanding capital stock entitled to
vote is owned by a Philippine national (i.e., by the
Trustee, in the case of MLRC; and by MLRC, in the
case of BFDC); and (2) at least 60% of their
respective board of directors are Filipino citizens.
(Boldfacing and italicization supplied)
Clearly, these DOJ and SEC opinions are compatible
with the Court’s interpretation of the 60-40 ownership
requirement in favor of Filipino citizens mandated by
the Constitution for certain economic activities. At the
same time, these opinions highlight the conflicting,
contradictory, and inconsistent positions taken by the
"capital" found in the economic provisions of the
Constitution.
The opinions issued by SEC legal officers do not have
the force and effect of SEC rules and regulations
because only the SEC en banc can adopt rules and
regulations. As expressly provided in Section 4.6 of
the Securities Regulation Code, the SEC cannot
12 
delegate to any of its individual Commissioner or staff
the power to adopt any rule or regulation.
Further, under Section 5.1 of the same Code, it
is the SEC as a collegial body, and not any of its
legal officers, that is empowered to
issue opinions and approve rules and
regulations. Thus:
4.6. The Commission may, for purposes of efficiency,
delegate any of its functions to any department or
office of the Commission, an individual Commissioner
or staff member of the Commission except its review
or appellate authority and its power to adopt, alter Can the Commission En Banc delegate this
and supplement any rule or regulation. function to an SEC officer?

The Commission may review upon its own initiative or COMMISSIONER GAITE:
upon the petition of any interested party any action of
any department or office, individual Commissioner, or Yes, Your Honor, we have delegated it to the
staff member of the Commission. General Counsel.

SEC. 5. Powers and Functions of the JUSTICE CARPIO:

Commission.- 5.1. The Commission shall act with
transparency and shall have the powers and functions It can be delegated. What cannot be
provided by this Code, Presidential Decree No. 902- delegated by the Commission En Banc to a
A, the Corporation Code, the Investment Houses Law, commissioner or an individual employee of the
the Financing Company Act and other existing laws. Commission?
Pursuant thereto the Commission shall have, among
others, the following powers and functions:
COMMISSIONER GAITE:
xxxx
Novel opinions that [have] to be decided by
the En Banc...
(g) Prepare, approve, amend or repeal rules,
regulations and orders, and issue opinions and
JUSTICE CARPIO:
provide guidance on and supervise compliance
with such rules, regulations and orders;
What cannot be delegated, among others, is
the power to adopt or amend rules and
x x x x (Emphasis supplied)
regulations, correct?
Thus, the act of the individual Commissioners or legal
COMMISSIONER GAITE:
officers of the SEC in issuing opinions that have the
effect of SEC rules or regulations is ultra vires. Under
Sections 4.6 and 5.1(g) of the Code, only the SEC en That’s correct, Your Honor.
banc can "issue opinions" that have the force and
effect of rules or regulations. Section 4.6 of the Code JUSTICE CARPIO:
bars the SEC en banc from delegating to any
individual Commissioner or staff the power to adopt So, you combine the two (2), the SEC
rules or regulations. In short, any opinion of officer, if delegated that power, can issue
individual Commissioners or SEC legal officers an opinion but that opinion does not
does not constitute a rule or regulation of the constitute a rule or regulation, correct?
SEC.
COMMISSIONER GAITE:
The SEC admits during the Oral Arguments that only
the SEC en banc, and not any of its individual Correct, Your Honor.
commissioners or legal staff, is empowered to issue
opinions which have the same binding effect as SEC JUSTICE CARPIO:
rules and regulations, thus:
So, all of these opinions that you
JUSTICE CARPIO: mentioned they are not rules and
regulations, correct?
So, under the law, it is the Commission En
Banc that can issue an COMMISSIONER GAITE:

SEC Opinion, correct? They are not rules and regulations.

COMMISSIONER GAITE: 13
JUSTICE CARPIO:

That’s correct, Your Honor. If they are not rules and regulations, they
apply only to that particular situation and will
JUSTICE CARPIO: not constitute a precedent, correct?
COMMISSIONER GAITE:
Yes, Your Honor. (Emphasis supplied)
14  requirement, is it on the authorized capital stock, on
Significantly, the SEC en banc, which is the collegial
body statutorily empowered to issue rules and
opinions on behalf of the SEC, has adopted even the
Grandfather Rule in determining compliance with the
60-40 ownership requirement in favor of Filipino
citizens mandated by the Constitution for certain
economic activities. This prevailing SEC ruling, which
the SEC correctly adopted to thwart any
circumvention of the required Filipino "ownership
and control," is laid down in the 25 March 2010
SEC en banc ruling in Redmont Consolidated Mines,
Corp. v. McArthur Mining, Inc., et al., to wit:
15 
The avowed purpose of the Constitution is to place in
the hands of Filipinos the exploitation of our natural
resources. Necessarily, therefore, the Rule
interpreting the constitutional provision should
not diminish that right through the legal fiction of
corporate ownership and control. But the
constitutional provision, as interpreted and practiced
via the 1967 SEC Rules, has favored foreigners
contrary to the command of the Constitution. Hence,
the Grandfather Rule must be applied to
accurately determine the actual participation,
both direct and indirect, of foreigners in a
corporation engaged in a nationalized activity or
business.
Compliance with the constitutional limitation(s) on
engaging in nationalized activities must be
determined by ascertaining if 60% of the investing
corporation’s outstanding capital stock is owned by
"Filipino citizens", or as interpreted, by natural or
individual Filipino citizens. If such investing
corporation is in turn owned to some extent by
another investing corporation, the same process must
be observed. One must not stop until the citizenships
of the individual or natural stockholders of layer after
layer of investing corporations have been established,
the very essence of the Grandfather Rule.
Lastly, it was the intent of the framers of the 1987
Constitution to adopt the Grandfather Rule. In one
of the discussions on what is now Article XII of the
present Constitution, the framers made the following
exchange:
MR. NOLLEDO. In Sections 3, 9 and 15, the
Committee stated local or Filipino equity and foreign
equity; namely, 60-40 in Section 3, 60-40 in Section 9,
and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced
with the question: ‘Where do we base the equity
the subscribed capital stock, or on the paid-up capital
stock of a corporation’? Will the Committee please
enlighten me on this?
MR. VILLEGAS. We have just had a long discussion
with the members of the team from the UP Law
Center who provided us a draft. The phrase that is
contained here which we adopted from the UP draft is
‘60 percent of voting stock.’
MR. NOLLEDO. That must be based on the
subscribed capital stock, because unless declared
delinquent, unpaid capital stock shall be entitled to
vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you. With respect to an
investment by one corporation in another corporation,
say, a corporation with 60-40 percent equity invests in
another corporation which is permitted by the
Corporation Code, does the Committee adopt the
grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the
Committee.
MR. NOLLEDO. Therefore, we need additional
Filipino capital?
MR. VILLEGAS. Yes. (Boldfacing and underscoring
supplied; italicization in the original)
This SEC en banc ruling conforms to our 28 June
2011 Decision that the 60-40 ownership requirement
in favor of Filipino citizens in the Constitution to
engage in certain economic activities applies not only
to voting control of the corporation, but also to the
beneficial ownership of the corporation. Thus, in
our 28 June 2011 Decision we stated:
Mere legal title is insufficient to meet the 60 percent
Filipinoowned "capital" required in the
Constitution. Full beneficial ownership of 60
percent of the outstanding capital stock, coupled
with 60 percent of the voting rights, is required.
The legal and beneficial ownership of 60 percent of
the outstanding capital stock must rest in the hands of
Filipino nationals in accordance with the constitutional
mandate. Otherwise, the corporation is "considered
as non-Philippine national[s]." (Emphasis supplied)
Both the Voting Control Test and the Beneficial
Ownership Test must be applied to determine
whether a corporation is a "Philippine national."
The interpretation by legal officers of the SEC of the
term "capital," embodied in various opinions which
respondents relied upon, is merely preliminary and an
opinion only of such officers. To repeat, any such
opinion does not constitute an SEC rule or regulation.
In fact, many of these opinions contain a disclaimer
which expressly states: "x x x the foregoing
opinion is based solely on facts disclosed in your
query and relevant only to the particular issue raised
therein and shall not be used in the nature of a
standing rule binding upon the Commission in
other cases whether of similar or dissimilar
circumstances." Thus, the opinions clearly make
16 
a caveat that they do not constitute binding
precedents on any one, not even on the SEC itself.
Likewise, the opinions of the SEC en banc, as well as
of the DOJ, interpreting the law are neither conclusive
nor controlling and thus, do not bind the Court. It is
hornbook doctrine that any interpretation of the law
that administrative or quasi-judicial agencies make is
only preliminary, never conclusive on the Court. The
power to make a final interpretation of the law, in this
case the term "capital" in Section 11, Article XII of the
1987 Constitution, lies with this Court, not with any
other government entity.
In his motion for reconsideration, the PSE President
cites the cases of National Telecommunications
Commission v. Court of Appeals and Philippine Long
17 
Distance Telephone Company v. National
Telecommunications Commission in arguing that the
18 
Court has already defined the term "capital" in Section
11, Article XII of the 1987 Constitution. 19
The PSE President is grossly mistaken. In both cases
of National Telecommunications v. Court of
Appeals and Philippine Long Distance Telephone
20 
Company v. National Telecommunications
Commission, the Court did not define the term
21 
"capital" as found in Section 11, Article XII of the 1987
Constitution. In fact, these two cases never
mentioned, discussed or cited Section 11, Article
XII of the Constitution or any of its economic
provisions, and thus cannot serve as precedent in
the interpretation of Section 11, Article XII of the
Constitution. These two cases dealt solely with the
determination of the correct regulatory fees under
Section 40(e) and (f) of the Public Service Act, to wit:
(e) For annual reimbursement of the expenses
incurred by the Commission in the supervision of
other public services and/or in the regulation or fixing
of their rates, twenty centavos for each one hundred
pesos or fraction thereof, of the capital stock
subscribed or paid, or if no shares have been
issued, of the capital invested, or of the property and
equipment whichever is higher.
(f) For the issue or increase of capital stock, twenty
centavos for each one hundred pesos or fraction
thereof, of the increased capital. (Emphasis supplied)
The Court’s interpretation in these two cases of the
terms "capital stock subscribed or paid," "capital
stock" and "capital" does not pertain to, and cannot
control, the definition of the term "capital" as used in
Section 11, Article XII of the Constitution, or any of
the economic provisions of the Constitution where the
term "capital" is found. The definition of the term
"capital" found in the Constitution must not be taken
out of context. A careful reading of these two cases
reveals that the terms "capital stock subscribed or
paid," "capital stock" and "capital" were defined solely
to determine the basis for computing the supervision
and regulation fees under Section 40(e) and (f) of the
Public Service Act.
III.
Filipinization of Public Utilities
The Preamble of the 1987 Constitution, as the
prologue of the supreme law of the land, embodies
the ideals that the Constitution intends to
achieve. The Preamble reads:
22 
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane
society, and establish a Government that shall
embody our ideals and aspirations, promote the
common good, conserve and develop our
patrimony, and secure to ourselves and our
posterity, the blessings of independence and
democracy under the rule of law and a regime of
truth, justice, freedom, love, equality, and peace, do
ordain and promulgate this Constitution. (Emphasis
supplied)
Consistent with these ideals, Section 19, Article II of
the 1987 Constitution declares as State policy the
development of a national economy "effectively
controlled" by Filipinos:
Section 19. The State shall develop a self-reliant and
independent national economy effectively
controlled by Filipinos.
Fortifying the State policy of a Filipino-controlled
economy, the Constitution decrees:
Section 10. The Congress shall, upon
recommendation of the economic and planning
agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or
associations at least sixty per centum of whose
capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures
that will encourage the formation and operation of
enterprises whose capital is wholly owned by
Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and
in accordance with its national goals and priorities.
23
Under Section 10, Article XII of the 1987 Constitution,
Congress may "reserve to citizens of the Philippines
or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or
such higher percentage as Congress may prescribe,
certain areas of investments." Thus, in numerous laws
Congress has reserved certain areas of investments
to Filipino citizens or to corporations at least sixty
percent of the "capital" of which is owned by Filipino
citizens. Some of these laws are: (1) Regulation of
Award of Government Contracts or R.A. No. 5183; (2)
Philippine Inventors Incentives Act or R.A. No. 3850;
(3) Magna Carta for Micro, Small and Medium
Enterprises or R.A. No. 6977; (4) Philippine Overseas
Shipping Development Act or R.A. No. 7471; (5)
Domestic Shipping Development Act of 2004 or R.A.
No. 9295; (6) Philippine Technology Transfer Act of
2009 or R.A. No. 10055; and (7) Ship Mortgage
Decree or P.D. No. 1521.
With respect to public utilities, the 1987 Constitution
specifically ordains:
Section 11. No franchise, certificate, or any other
form of authorization for the operation of a public
utility shall be granted except to citizens of the
Philippines or to corporations or associations
organized under the laws of the Philippines, at
least sixty per centum of whose capital is owned
by such citizens; nor shall such franchise, certificate,
or authorization be exclusive in character or for a
longer period than fifty years. Neither shall any such
franchise or right be granted except under the
condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the
common good so requires. The State shall encourage
equity participation in public utilities by the general
public. The participation of foreign investors in the
governing body of any public utility enterprise shall be
limited to their proportionate share in its capital, and
all the executive and managing officers of such
corporation or association must be citizens of the
Philippines. (Emphasis supplied)
This provision, which mandates the Filipinization of
public utilities, requires that any form of authorization
for the operation of public utilities shall be granted
only to "citizens of the Philippines or to corporations
or associations organized under the laws of the
Philippines at least sixty per centum of whose capital
is owned by such citizens." "The provision is [an
express] recognition of the sensitive and vital
position of public utilities both in the national
economy and for national security." 24
The 1987 Constitution reserves the ownership and
operation of public utilities exclusively to (1) Filipino
citizens, or (2) corporations or associations at least 60
percent of whose "capital" is owned by Filipino
citizens. Hence, in the case of individuals, only
Filipino citizens can validly own and operate a public
utility. In the case of corporations or associations, at
least 60 percent of their "capital" must be owned by
Filipino citizens. In other words, under Section 11,
Article XII of the 1987 Constitution, to own and
operate a public utility a corporation’s capital
must at least be 60 percent owned by Philippine
nationals.
IV.
Definition of "Philippine National"
Pursuant to the express mandate of Section 11,
Article XII of the 1987 Constitution, Congress enacted
Republic Act No. 7042 or the Foreign Investments Act
of 1991 (FIA), as amended, which defined a
"Philippine national" as follows:
SEC. 3. Definitions. - As used in this Act:
a. The term "Philippine national" shall mean a citizen
of the Philippines; or a domestic partnership or
association wholly owned by citizens of the
Philippines; or a corporation organized under the
laws of the Philippines of which at least sixty
percent (60%) of the capital stock
outstanding and entitled to vote is owned and
held by citizens of the Philippines; or a corporation
organized abroad and registered as doing business in
the Philippines under the Corporation Code of which
one hundred percent (100%) of the capital stock
outstanding and entitled to vote is wholly owned by
Filipinos or a trustee of funds for pension or other
employee retirement or separation benefits, where the
trustee is a Philippine national and at least sixty
percent (60%) of the fund will accrue to the benefit of
Philippine nationals: Provided, That where a
corporation and its non-Filipino stockholders own
stocks in a Securities and Exchange Commission
(SEC) registered enterprise, at least sixty percent
(60%) of the capital stock outstanding and entitled to
vote of each of both corporations must be owned and
held by citizens of the Philippines and at least sixty
percent (60%) of the members of the Board of
Directors of each of both corporations must be
citizens of the Philippines, in order that the
corporation, shall be considered a "Philippine
national." (Boldfacing, italicization and underscoring
supplied)
Thus, the FIA clearly and unequivocally defines a
"Philippine national" as a Philippine citizen, or a
domestic corporation at least "60% of the capital
stock outstanding and entitled to vote" is owned by
Philippine citizens.
The definition of a "Philippine national" in the FIA
reiterated the meaning of such term as provided in its
predecessor statute, Executive Order No. 226 or
the Omnibus Investments Code of 1987, which was
25 
issued by then President Corazon C. Aquino. Article
15 of this Code states:
Article 15. "Philippine national" shall mean a citizen of
the Philippines or a diplomatic partnership or
association wholly-owned by citizens of the
Philippines; or a corporation organized under the
laws of the Philippines of which at least sixty per
cent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of
the Philippines; or a trustee of funds for pension or
other employee retirement or separation benefits,
where the trustee is a Philippine national and at least
sixty per cent (60%) of the fund will accrue to the
benefit of Philippine nationals: Provided, That where a
corporation and its non-Filipino stockholders own
stock in a registered enterprise, at least sixty per cent
(60%) of the capital stock outstanding and entitled to
vote of both corporations must be owned and held by
the citizens of the Philippines and at least sixty per
cent (60%) of the members of the Board of Directors
of both corporations must be citizens of the
Philippines in order that the corporation shall be
considered a Philippine national. (Boldfacing,
italicization and underscoring supplied)
Under Article 48(3) of the Omnibus Investments Code
26 
of 1987, "no corporation x x x which is not a
‘Philippine national’ x x x shall do business
x x x in the Philippines x x x without first securing from
the Board of Investments a written certificate to the
effect that such business or economic activity x x x
would not conflict with the Constitution or laws of the
Philippines." Thus, a "non-Philippine national" cannot
27 
own and operate a reserved economic activity like a
public utility. This means, of course, that only a
"Philippine national" can own and operate a public
utility.
In turn, the definition of a "Philippine national" under
Article 15 of the Omnibus Investments Code of 1987
was a reiteration of the meaning of such term as
provided in Article 14 of the Omnibus Investments
Code of 1981, to wit:
28 
Article 14. "Philippine national" shall mean a citizen of
the Philippines; or a domestic partnership or
association wholly owned by citizens of the
Philippines; or a corporation organized under the
laws of the Philippines of which at least sixty per
cent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of
the Philippines; or a trustee of funds for pension or
other employee retirement or separation benefits,
where the trustee is a Philippine national and at least
sixty per cent (60%) of the fund will accrue to the
benefit of Philippine nationals: Provided, That where a
corporation and its non-Filipino stockholders own
stock in a registered enterprise, at least sixty per cent
(60%) of the capital stock outstanding and entitled to
vote of both corporations must be owned and held by
the citizens of the Philippines and at least sixty per
cent (60%) of the members of the Board of Directors
of both corporations must be citizens of the
Philippines in order that the corporation shall be
considered a Philippine national. (Boldfacing,
italicization and underscoring supplied)
Under Article 69(3) of the Omnibus Investments Code
of 1981, "no corporation x x x which is not a
‘Philippine national’ x x x shall do business x x x in the
Philippines x x x without first securing a written
certificate from the Board of Investments to the effect
that such business or economic activity x x x
would not conflict with the Constitution or laws of the
Philippines." Thus, a "non-Philippine national" cannot
29 
own and operate a reserved economic activity like a
public utility. Again, this means that only a "Philippine
national" can own and operate a public utility.
Prior to the Omnibus Investments Code of 1981,
Republic Act No. 5186 or the Investment Incentives
30 
Act, which took effect on 16 September 1967,
contained a similar definition of a "Philippine national,"
to wit:
(f) "Philippine National" shall mean a citizen of the
Philippines; or a partnership or association wholly
owned by citizens of the Philippines; or a corporation
organized under the laws of the Philippines of
which at least sixty per cent of the capital stock
outstanding and entitled to vote is owned and
held by citizens of the Philippines; or a trustee of
funds for pension or other employee retirement or
separation benefits, where the trustee is a Philippine
National and at least sixty per cent of the fund will
accrue to the benefit of Philippine Nationals:
Provided, That where a corporation and its non-
Filipino stockholders own stock in a registered
enterprise, at least sixty per cent of the capital stock
outstanding and entitled to vote of both corporations
must be owned and held by the citizens of the
Philippines and at least sixty per cent of the members
of the Board of Directors of both corporations must be
citizens of the Philippines in order that the corporation
shall be considered a Philippine National. (Boldfacing,
italicization and underscoring supplied)
Under Section 3 of Republic Act No. 5455 or
the Foreign Business Regulations Act, which took
effect on 30 September 1968, if the investment in a
domestic enterprise by non-Philippine nationals
exceeds 30% of its outstanding capital stock, such
enterprise must obtain prior approval from the Board
of Investments before accepting such investment.
Such approval shall not be granted if the investment
"would conflict with existing constitutional provisions
and laws regulating the degree of required ownership
by Philippine nationals in the enterprise." A "non-
31 
Philippine national" cannot own and operate a
reserved economic activity like a public utility. Again,
this means that only a "Philippine national" can own
and operate a public utility.
The FIA, like all its predecessor statutes, clearly
defines a "Philippine national" as a Filipino citizen,
or a domestic corporation "at least sixty percent
(60%) of the capital stock outstanding and entitled
to vote" is owned by Filipino citizens. A domestic
corporation is a "Philippine national" only if at least
60% of its voting stock is owned by Filipino citizens.
This definition of a "Philippine national" is crucial in
the present case because the FIA reiterates and
clarifies Section 11, Article XII of the 1987
Constitution, which limits the ownership and operation
of public utilities to Filipino citizens or to corporations
or associations at least 60% Filipino-owned.
The FIA is the basic law governing foreign
investments in the Philippines, irrespective of the
nature of business and area of investment. The FIA
spells out the procedures by which non-Philippine
nationals can invest in the Philippines. Among the key
features of this law is the concept of a negative list or
the Foreign Investments Negative List. Section 8 of
32 
the law states:
SEC. 8. List of Investment Areas Reserved to
Philippine Nationals [Foreign Investment Negative
List]. - The Foreign Investment Negative List shall
have two  component lists: A and B:
2 
a. List A shall enumerate the areas of activities
reserved to Philippine nationals by mandate of
the Constitution and specific laws.
b. List B shall contain the areas of activities and
enterprises regulated pursuant to law:
1. which are defense-related activities, requiring prior
clearance and authorization from the Department of
National Defense [DND] to engage in such activity,
such as the manufacture, repair, storage and/or
distribution of firearms, ammunition, lethal weapons,
military ordinance, explosives, pyrotechnics and
similar materials; unless such manufacturing or repair
activity is specifically authorized, with a substantial
export component, to a non-Philippine national by the
Secretary of National Defense; or
2. which have implications on public health and
morals, such as the manufacture and distribution of
dangerous drugs; all forms of gambling; nightclubs,
bars, beer houses, dance halls, sauna and steam
bathhouses and massage clinics. (Boldfacing,
underscoring and italicization supplied)
Section 8 of the FIA enumerates the investment areas
"reserved to Philippine nationals." Foreign
Investment Negative List A consists of "areas of
activities reserved to Philippine nationals by
mandate of the Constitution and specific laws,"
where foreign equity participation in any
enterprise shall be limited to the maximum
percentage expressly prescribed by the
Constitution and other specific laws. In short, to
own and operate a public utility in the Philippines
one must be a "Philippine national" as defined in
the FIA. The FIA is abundant notice to foreign
investors to what extent they can invest in public
utilities in the Philippines.
To repeat, among the areas of investment covered by
the Foreign Investment Negative List A is the
ownership and operation of public utilities, which the
Constitution expressly reserves to Filipino citizens
and to corporations at least 60% owned by Filipino
citizens. In other words, Negative List A of the FIA
reserves the ownership and operation of public
utilities only to "Philippine nationals," defined in
Section 3(a) of the FIA as "(1) a citizen of the
Philippines; x x x or (3) a corporation organized
under the laws of the Philippines of which at least
sixty percent (60%) of the capital stock
outstanding and entitled to vote is owned and
held by citizens of the Philippines; or (4) a
corporation organized abroad and registered as doing
business in the Philippines under the Corporation
Code of which one hundred percent (100%) of the
capital stock outstanding and entitled to vote is wholly
owned by Filipinos or a trustee of funds for pension or
other employee retirement or separation benefits,
where the trustee is a Philippine national and at least
sixty percent (60%) of the fund will accrue to the
benefit of Philippine nationals."
Clearly, from the effectivity of the Investment
Incentives Act of 1967 to the adoption of the Omnibus
Investments Code of 1981, to the enactment of the
Omnibus Investments Code of 1987, and to the
passage of the present Foreign Investments Act of
1991, or for more than four decades, the statutory
definition of the term "Philippine national" has
been uniform and consistent: it means a Filipino
citizen, or a domestic corporation at least 60% of
the voting stock is owned by Filipinos. Likewise,
these same statutes have uniformly and
consistently required that only "Philippine
nationals" could own and operate public utilities
in the Philippines. The following exchange during
the Oral Arguments is revealing:
JUSTICE CARPIO:
Counsel, I have some questions. You are
aware of the Foreign Investments Act of 1991,
x x x? And the FIA of 1991 took effect in 1991,
correct? That’s over twenty (20) years ago,
correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And Section 8 of the Foreign Investments Act
of 1991 states that []only Philippine nationals
can own and operate public utilities[], correct?
COMMISSIONER GAITE:
Yes, Your Honor.
JUSTICE CARPIO:
And the same Foreign Investments Act of
1991 defines a "Philippine national" either as
a citizen of the Philippines, or if it is a
corporation at least sixty percent (60%) of the
voting stock is owned by citizens of the
Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And, you are also aware that under the
predecessor law of the Foreign Investments
Act of 1991, the Omnibus Investments Act of
1987, the same provisions apply: x x x only
Philippine nationals can own and operate a
public utility and the Philippine national, if it is
a corporation, x x x sixty percent (60%) of the
capital stock of that corporation must be
owned by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And even prior to the Omnibus Investments
Act of 1987, under the Omnibus Investments
Act of 1981, the same rules apply: x x x only a
Philippine national can own and operate a
public utility and a Philippine national, if it is a
corporation, sixty percent (60%) of its x x x
voting stock, must be owned by citizens of the
Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And even prior to that, under [the]1967
Investments Incentives Act and the Foreign
Company Act of 1968, the same rules applied,
correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
So, for the last four (4) decades, x x x, the
law has been very consistent – only a
Philippine national can own and operate a
public utility, and a Philippine national, if it
is a corporation, x x x at least sixty percent
(60%) of the voting stock must be owned
by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor. (Emphasis supplied)
33 
Government agencies like the SEC cannot simply
ignore Sections 3(a) and 8 of the FIA which
categorically prescribe that certain economic
activities, like the ownership and operation of public
utilities, are reserved to corporations "at least sixty
percent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the
Philippines." Foreign Investment Negative List A
refers to "activities reserved to Philippine nationals by
mandate of the Constitution and specific laws." The
FIA is the basic statute regulating foreign
investments in the Philippines. Government
agencies tasked with regulating or monitoring foreign
investments, as well as counsels of foreign investors,
should start with the FIA in determining to what extent
a particular foreign investment is allowed in the
Philippines. Foreign investors and their counsels who
ignore the FIA do so at their own peril. Foreign
investors and their counsels who rely on opinions of
SEC legal officers that obviously contradict the FIA do
so also at their own peril.
Occasional opinions of SEC legal officers that
obviously contradict the FIA should immediately raise
a red flag. There are already numerous opinions of
SEC legal officers that cite the definition of a
"Philippine national" in Section 3(a) of the FIA in
determining whether a particular corporation is
qualified to own and operate a nationalized or partially
nationalized business in the Philippines. This shows
that SEC legal officers are not only aware of, but also
rely on and invoke, the provisions of the FIA in
ascertaining the eligibility of a corporation to engage
in partially nationalized industries. The following are
some of such opinions:
1. Opinion of 23 March 1993, addressed to
Mr. Francis F. How;
2. Opinion of 14 April 1993, addressed to
Director Angeles T. Wong of the Philippine
Overseas Employment Administration;
3. Opinion of 23 November 1993, addressed
to Messrs. Dominador Almeda and Renato S.
Calma;
4. Opinion of 7 December 1993, addressed to
Roco Bunag Kapunan Migallos & Jardeleza;
5. SEC Opinion No. 49-04, addressed to
Romulo Mabanta Buenaventura Sayoc & De
Los Angeles;
6. SEC-OGC Opinion No. 17-07, addressed to
Mr. Reynaldo G. David; and
7. SEC-OGC Opinion No. 03-08, addressed to
Attys. Ruby Rose J. Yusi and Rudyard S.
Arbolado.
The SEC legal officers’ occasional but blatant
disregard of the definition of the term "Philippine
national" in the FIA signifies their lack of integrity and
competence in resolving issues on the 60-40
ownership requirement in favor of Filipino citizens in
Section 11, Article XII of the Constitution.
The PSE President argues that the term "Philippine
national" defined in the FIA should be limited and
interpreted to refer to corporations seeking to avail of
tax and fiscal incentives under investment incentives
laws and cannot be equated with the term "capital" in
Section 11, Article XII of the 1987 Constitution.
Pangilinan similarly contends that the FIA and its
predecessor statutes do not apply to "companies
which have not registered and obtained special
incentives under the schemes established by those
laws."
Both are desperately grasping at straws. The FIA
does not grant tax or fiscal incentives to any
enterprise. Tax and fiscal incentives to investments
are granted separately under the Omnibus
Investments Code of 1987, not under the FIA. In fact,
the FIA expressly repealed Articles 44 to 56 of Book II
of the Omnibus Investments Code of 1987, which
articles previously regulated foreign investments in
nationalized or partially nationalized industries.
The FIA is the applicable law regulating foreign
investments in nationalized or partially nationalized
industries. There is nothing in the FIA, or even in the
Omnibus Investments Code of 1987 or its
predecessor statutes, that states, expressly or
impliedly, that the FIA or its predecessor statutes do
not apply to enterprises not availing of tax and fiscal
incentives under the Code. The FIA and its
predecessor statutes apply to investments in all
domestic enterprises, whether or not such enterprises
enjoy tax and fiscal incentives under the Omnibus
Investments Code of 1987 or its predecessor
statutes. The reason is quite obvious – mere non-
availment of tax and fiscal incentives by a non-
Philippine national cannot exempt it from Section
11, Article XII of the Constitution regulating
foreign investments in public utilities. In fact, the
Board of Investments’ Primer on Investment
Policies in the Philippines, which is given out to
34 
foreign investors, provides:
PART III. FOREIGN INVESTMENTS WITHOUT
INCENTIVES
Investors who do not seek incentives and/or whose
chosen activities do not qualify for incentives, (i.e., the
activity is not listed in the IPP, and they are not
exporting at least 70% of their production) may go
ahead and make the investments without seeking
incentives. They only have to be guided by the
Foreign Investments Negative List (FINL).
The FINL clearly defines investment areas requiring
at least 60% Filipino ownership. All other areas
outside of this list are fully open to foreign investors.
(Emphasis supplied)
V.
Right to elect directors, coupled with beneficial
ownership,
translates to effective control.
The 28 June 2011 Decision declares that the 60
percent Filipino ownership required by the
Constitution to engage in certain economic activities
applies not only to voting control of the corporation,
but also to the beneficial ownership of the
corporation. To repeat, we held:
Mere legal title is insufficient to meet the 60 percent
Filipino-owned "capital" required in the
Constitution. Full beneficial ownership of 60
percent of the outstanding capital stock, coupled
with 60 percent of the voting rights, is required.
The legal and beneficial ownership of 60 percent of
the outstanding capital stock must rest in the hands of
Filipino nationals in accordance with the constitutional
mandate. Otherwise, the corporation is "considered
as non-Philippine national[s]." (Emphasis supplied)
This is consistent with Section 3 of the FIA which
provides that where 100% of the capital stock is held
by "a trustee of funds for pension or other employee
retirement or separation benefits," the trustee is a
Philippine national if "at least sixty percent (60%) of
the fund will accrue to the benefit of Philippine
nationals." Likewise, Section 1(b) of the Implementing
Rules of the FIA provides that "for stocks to be
deemed owned and held by Philippine citizens or
Philippine nationals, mere legal title is not enough to
meet the required Filipino equity. Full beneficial
ownership of the stocks, coupled with appropriate
voting rights, is essential."
Since the constitutional requirement of at least 60
percent Filipino ownership applies not only to voting
control of the corporation but also to the beneficial
ownership of the corporation, it is therefore imperative
that such requirement apply uniformly and across the
board to all classes of shares, regardless of
nomenclature and category, comprising the capital of
a corporation. Under the Corporation Code, capital
stock consists of all classes of shares issued to
35 
stockholders, that is, common shares as well as
preferred shares, which may have different rights,
privileges or restrictions as stated in the articles of
incorporation.36
The Corporation Code allows denial of the right to
vote to preferred and redeemable shares, but
disallows denial of the right to vote in specific
corporate matters. Thus, common shares have the
right to vote in the election of directors, while
preferred shares may be denied such right.
Nonetheless, preferred shares, even if denied the
right to vote in the election of directors, are entitled to
vote on the following corporate matters: (1)
amendment of articles of incorporation; (2) increase
and decrease of capital stock; (3) incurring, creating
or increasing bonded indebtedness; (4) sale, lease,
mortgage or other disposition of substantially all
corporate assets; (5) investment of funds in another
business or corporation or for a purpose other than
the primary purpose for which the corporation was
organized; (6) adoption, amendment and repeal of by-
laws; (7) merger and consolidation; and (8)
dissolution of corporation. 37
Since a specific class of shares may have rights and
privileges or restrictions different from the rest of the
shares in a corporation, the 60-40 ownership
requirement in favor of Filipino citizens in Section 11,
Article XII of the Constitution must apply not only to
shares with voting rights but also to shares without
voting rights. Preferred shares, denied the right to
vote in the election of directors, are anyway still
entitled to vote on the eight specific corporate matters
mentioned above. Thus, if a corporation, engaged
in a partially nationalized industry, issues a
mixture of common and preferred non-voting
shares, at least 60 percent of the common shares
and at least 60 percent of the preferred non-voting
shares must be owned by Filipinos. Of course, if a
corporation issues only a single class of shares, at
least 60 percent of such shares must necessarily be
owned by Filipinos. In short, the 60-40 ownership
requirement in favor of Filipino citizens must
apply separately to each class of shares, whether
common, preferred non-voting, preferred voting
or any other class of shares. This uniform
application of the 60-40 ownership requirement in
favor of Filipino citizens clearly breathes life to the
constitutional command that the ownership and
operation of public utilities shall be reserved
exclusively to corporations at least 60 percent of
whose capital is Filipino-owned. Applying uniformly
the 60-40 ownership requirement in favor of Filipino
citizens to each class of shares, regardless of
differences in voting rights, privileges and restrictions,
guarantees effective Filipino control of public utilities,
as mandated by the Constitution.
Moreover, such uniform application to each class of
shares insures that the "controlling interest" in public
utilities always lies in the hands of Filipino citizens.
This addresses and extinguishes Pangilinan’s worry
that foreigners, owning most of the non-voting shares,
will exercise greater control over fundamental
corporate matters requiring two-thirds or majority vote
of all shareholders.
VI.
Intent of the framers of the Constitution
While Justice Velasco quoted in his Dissenting
Opinion a portion of the deliberations of the
38 
Constitutional Commission to support his claim that
the term "capital" refers to the total outstanding
shares of stock, whether voting or non-voting, the
following excerpts of the deliberations reveal
otherwise. It is clear from the following exchange that
the term "capital" refers to controlling interest of a
corporation, thus:
MR. NOLLEDO. In Sections 3, 9 and 15, the
Committee stated local or Filipino equity and foreign
equity; namely, 60-40 in Section 3, 60-40 in Section 9
and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced
with this question: "Where do we base the equity
requirement, is it on the authorized capital stock, on
the subscribed capital stock, or on the paid-up capital
stock of a corporation"? Will the Committee please
enlighten me on this?
MR. VILLEGAS. We have just had a long discussion
with the members of the team from the UP Law
Center who provided us a draft. The phrase that is
contained here which we adopted from the UP
draft is "60 percent of voting stock."
MR. NOLLEDO. That must be based on the
subscribed capital stock, because unless declared
delinquent, unpaid capital stock shall be entitled to
vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you.
With respect to an investment by one corporation in
another corporation, say, a corporation with 60-40
percent equity invests in another corporation which is
permitted by the Corporation Code, does the
Committee adopt the grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the
Committee.
MR. NOLLEDO. Therefore, we need additional
Filipino capital?
MR. VILLEGAS. Yes. 39
xxxx
MR. AZCUNA. May I be clarified as to that portion
that was accepted by the Committee.
MR. VILLEGAS. The portion accepted by the
Committee is the deletion of the phrase "voting stock
or controlling interest."
MR. AZCUNA. Hence, without the Davide
amendment, the committee report would read:
"corporations or associations at least sixty percent of
whose CAPITAL is owned by such citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost,
we are stuck with 60 percent of the capital to be
owned by citizens.
MR. VILLEGAS. That is right.
MR. AZCUNA. But the control can be with the
foreigners even if they are the minority. Let us say
40 percent of the capital is owned by them, but it
is the voting capital, whereas, the Filipinos own
the nonvoting shares. So we can have a situation
where the corporation is controlled by foreigners
despite being the minority because they have the
voting capital. That is the anomaly that would
result here.
MR. BENGZON. No, the reason we eliminated the
word "stock" as stated in the 1973 and 1935
Constitutions is that according to Commissioner
Rodrigo, there are associations that do not have
stocks. That is why we say "CAPITAL."
MR. AZCUNA. We should not eliminate the phrase
"controlling interest."
MR. BENGZON. In the case of stock corporations,
it is assumed. (Boldfacing and underscoring
40 
supplied)
Thus, 60 percent of the "capital" assumes, or should
result in, a "controlling interest" in the corporation.
The use of the term "capital" was intended to replace
the word "stock" because associations without stocks
can operate public utilities as long as they meet the
60-40 ownership requirement in favor of Filipino
citizens prescribed in Section 11, Article XII of the
Constitution. However, this did not change the intent
of the framers of the Constitution to reserve
exclusively to Philippine nationals the "controlling
interest" in public utilities.
During the drafting of the 1935 Constitution, economic
protectionism was "the battle-cry of the nationalists in
the Convention." The same battle-cry resulted in the
41 
nationalization of the public utilities. This is also the
42 
same intent of the framers of the 1987 Constitution
who adopted the exact formulation embodied in the
1935 and 1973 Constitutions on foreign equity
limitations in partially nationalized industries.
The OSG, in its own behalf and as counsel for the
State, agrees fully with the Court’s interpretation of
43 
the term "capital." In its Consolidated Comment, the
OSG explains that the deletion of the phrase
"controlling interest" and replacement of the word
"stock" with the term "capital" were intended
specifically to extend the scope of the entities
qualified to operate public utilities to include
associations without stocks. The framers’ omission of
the phrase "controlling interest" did not mean the
inclusion of all shares of stock, whether voting or non-
voting. The OSG reiterated essentially the Court’s
declaration that the Constitution reserved exclusively
to Philippine nationals the ownership and operation of
public utilities consistent with the State’s policy to
"develop a self-reliant and independent national
economy effectively controlled by Filipinos."
As we held in our 28 June 2011 Decision, to construe
broadly the term "capital" as the total outstanding
capital stock, treated as a single class regardless of
the actual classification of shares, grossly
contravenes the intent and letter of the Constitution
that the "State shall develop a self-reliant and
independent national economy effectively
controlled by Filipinos." We illustrated the glaring
anomaly which would result in defining the term
"capital" as the total outstanding capital stock of a
corporation, treated as a single class of shares
regardless of the actual classification of shares, to wit:
Let us assume that a corporation has 100 common
shares owned by foreigners and 1,000,000 non-voting
preferred shares owned by Filipinos, with both
classes of share having a par value of one peso (₱
1.00) per share. Under the broad definition of the term
"capital," such corporation would be considered
compliant with the 40 percent constitutional limit on
foreign equity of public utilities since the
overwhelming majority, or more than 99.999 percent,
of the total outstanding capital stock is Filipino owned.
This is obviously absurd.
In the example given, only the foreigners holding the
common shares have voting rights in the election of
directors, even if they hold only 100 shares. The
foreigners, with a minuscule equity of less than 0.001
percent, exercise control over the public utility. On the
other hand, the Filipinos, holding more than 99.999
percent of the equity, cannot vote in the election of
directors and hence, have no control over the public
utility. This starkly circumvents the intent of the
framers of the Constitution, as well as the clear
language of the Constitution, to place the control of
public utilities in the hands of Filipinos. x x x
Further, even if foreigners who own more than forty
percent of the voting shares elect an all-Filipino board
of directors, this situation does not guarantee Filipino
control and does not in any way cure the violation of
the Constitution. The independence of the Filipino
board members so elected by such foreign
shareholders is highly doubtful. As the OSG pointed
out, quoting Justice George Sutherland’s words
in Humphrey’s Executor v. US, "x x x it is quite
44 
evident that one who holds his office only during the
pleasure of another cannot be depended upon to
maintain an attitude of independence against the
latter’s will." Allowing foreign shareholders to elect a
controlling majority of the board, even if all the
directors are Filipinos, grossly circumvents the letter
and intent of the Constitution and defeats the very
purpose of our nationalization laws.
VII.
Last sentence of Section 11, Article XII of the
Constitution
The last sentence of Section 11, Article XII of the
1987 Constitution reads:
The participation of foreign investors in the governing
body of any public utility enterprise shall be limited to
their proportionate share in its capital, and all the
executive and managing officers of such corporation
or association must be citizens of the Philippines.
During the Oral Arguments, the OSG emphasized that
there was never a question on the intent of the
framers of the Constitution to limit foreign ownership,
and assure majority Filipino ownership and control of
public utilities. The OSG argued, "while the delegates
disagreed as to the percentage threshold to adopt, x x
x the records show they clearly understood that
Filipino control of the public utility corporation can only
be and is obtained only through the election of a
majority of the members of the board."
Indeed, the only point of contention during the
deliberations of the Constitutional Commission on 23
August 1986 was the extent of majority Filipino control
of public utilities. This is evident from the following
exchange:
THE PRESIDENT. Commissioner Jamir is
recognized.
MR. JAMIR. Madam President, my proposed
amendment on lines 20 and 21 is to delete the phrase
"two thirds of whose voting stock or controlling
interest," and instead substitute the words "SIXTY
PERCENT OF WHOSE CAPITAL" so that the
sentence will read: "No franchise, certificate, or any
other form of authorization for the operation of a
public utility shall be granted except to citizens of the
Philippines or to corporations or associations
organized under the laws of the Philippines at least
SIXTY PERCENT OF WHOSE CAPITAL is owned by
such citizens."
xxxx
THE PRESIDENT: Will Commissioner Jamir first
explain?
MR. JAMIR. Yes, in this Article on National Economy
and Patrimony, there were two previous sections in
which we fixed the Filipino equity to 60 percent as
against 40 percent for foreigners. It is only in this
Section 15 with respect to public utilities that the
committee proposal was increased to two-thirds. I
think it would be better to harmonize this provision by
providing that even in the case of public utilities, the
minimum equity for Filipino citizens should be 60
percent.
MR. ROMULO. Madam President.
THE PRESIDENT. Commissioner Romulo is
recognized.
MR. ROMULO. My reason for supporting the
amendment is based on the discussions I have had
with representatives of the Filipino majority owners of
the international record carriers, and the subsequent
memoranda they submitted to me. x x x
Their second point is that under the Corporation
Code, the management and control of a corporation is
vested in the board of directors, not in the officers but
in the board of directors. The officers are only agents
of the board. And they believe that with 60 percent of
the equity, the Filipino majority stockholders
undeniably control the board. Only on important
corporate acts can the 40-percent foreign equity
exercise a veto, x x x.
xxxx 45
MS. ROSARIO BRAID. Madam President.
THE PRESIDENT. Commissioner Rosario Braid is
recognized.
MS. ROSARIO BRAID. Yes, in the interest of equal
time, may I also read from a memorandum by the
spokesman of the Philippine Chamber of
Communications on why they would like to maintain
the present equity, I am referring to the 66 2/3. They
would prefer to have a 75-25 ratio but would settle for
66 2/3. x x x
xxxx
THE PRESIDENT. Just to clarify, would
Commissioner Rosario Braid support the proposal of
two-thirds rather than the 60 percent?
MS. ROSARIO BRAID. I have added a clause that will
put management in the hands of Filipino citizens.
xxxx 46
While they had differing views on the percentage of
Filipino ownership of capital, it is clear that the
framers of the Constitution intended public utilities to
be majority Filipino-owned and controlled. To ensure
that Filipinos control public utilities, the framers of the
Constitution approved, as additional safeguard, the
inclusion of the last sentence of Section 11, Article XII
of the Constitution commanding that "[t]he
participation of foreign investors in the governing body
of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive
and managing officers of such corporation or
association must be citizens of the Philippines." In
other words, the last sentence of Section 11, Article
XII of the Constitution mandates that (1) the
participation of foreign investors in the governing body
of the corporation or association shall be limited to
their proportionate share in the capital of such entity;
and (2) all officers of the corporation or association
must be Filipino citizens.
Commissioner Rosario Braid proposed the inclusion
of the phrase requiring the managing officers of the
corporation or association to be Filipino citizens
specifically to prevent management contracts, which
were designed primarily to circumvent the
Filipinization of public utilities, and to assure Filipino
control of public utilities, thus:
MS. ROSARIO BRAID. x x x They also like to suggest
that we amend this provision by adding a phrase
which states: "THE MANAGEMENT BODY OF
EVERY CORPORATION OR ASSOCIATION SHALL
IN ALL CASES BE CONTROLLED BY CITIZENS OF
THE PHILIPPINES." I have with me their position
paper.
THE PRESIDENT. The Commissioner may proceed.
MS. ROSARIO BRAID. The three major international
record carriers in the Philippines, which
Commissioner Romulo mentioned – Philippine Global
Communications, Eastern Telecommunications,
Globe Mackay Cable – are 40-percent owned by
foreign multinational companies and 60-percent
owned by their respective Filipino partners. All three,
however, also have management contracts with these
foreign companies – Philcom with RCA, ETPI with
Cable and Wireless PLC, and GMCR with ITT. Up to
the present time, the general managers of these
carriers are foreigners. While the foreigners in these
common carriers are only minority owners, the foreign
multinationals are the ones managing and controlling
their operations by virtue of their management
contracts and by virtue of their strength in the
governing bodies of these carriers.47
xxxx
MR. OPLE. I think a number of us have agreed to ask
Commissioner Rosario Braid to propose an
amendment with respect to the operating
management of public utilities, and in this
amendment, we are associated with Fr. Bernas,
Commissioners Nieva and Rodrigo. Commissioner
Rosario Braid will state this amendment now.
Thank you.
MS. ROSARIO BRAID. Madam President.
THE PRESIDENT. This is still on Section 15.
MS. ROSARIO BRAID. Yes.
MR. VILLEGAS. Yes, Madam President.
xxxx
MS. ROSARIO BRAID. Madam President, I propose a
new section to read: ‘THE MANAGEMENT BODY OF
EVERY CORPORATION OR ASSOCIATION SHALL
IN ALL CASES BE CONTROLLED BY CITIZENS OF
THE PHILIPPINES."
This will prevent management contracts and
assure control by Filipino citizens. Will the
committee assure us that this amendment will insure
that past activities such as management contracts will
no longer be possible under this amendment?
xxxx
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is
recognized.
FR. BERNAS. Will the committee accept a
reformulation of the first part?
MR. BENGZON. Let us hear it.
FR. BERNAS. The reformulation will be essentially
the formula of the 1973 Constitution which reads:
"THE PARTICIPATION OF FOREIGN INVESTORS
IN THE GOVERNING BODY OF ANY PUBLIC
UTILITY ENTERPRISE SHALL BE LIMITED TO
THEIR PROPORTIONATE SHARE IN THE CAPITAL
THEREOF AND..."
MR. VILLEGAS. "ALL THE EXECUTIVE AND
MANAGING OFFICERS OF SUCH CORPORATIONS
AND ASSOCIATIONS MUST BE CITIZENS OF THE
PHILIPPINES."
MR. BENGZON. Will Commissioner Bernas read the
whole thing again?
FR. BERNAS. "THE PARTICIPATION OF FOREIGN
INVESTORS IN THE GOVERNING BODY OF ANY
PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED
TO THEIR PROPORTIONATE SHARE IN THE
CAPITAL THEREOF..." I do not have the rest of the
copy.
MR. BENGZON. "AND ALL THE EXECUTIVE AND
MANAGING OFFICERS OF SUCH CORPORATIONS
OR ASSOCIATIONS MUST BE CITIZENS OF THE
PHILIPPINES." Is that correct?
MR. VILLEGAS. Yes.
MR. BENGZON. Madam President, I think that was
said in a more elegant language. We accept the
amendment. Is that all right with Commissioner
Rosario Braid?
MS. ROSARIO BRAID. Yes.
xxxx
MR. DE LOS REYES. The governing body refers to
the board of directors and trustees.
MR. VILLEGAS. That is right.
MR. BENGZON. Yes, the governing body refers to
the board of directors.
MR. REGALADO. It is accepted.
MR. RAMA. The body is now ready to vote, Madam
President.
VOTING
xxxx
The results show 29 votes in favor and none against;
so the proposed amendment is approved.
xxxx
THE PRESIDENT. All right. Can we proceed now to
vote on Section 15?
MR. RAMA. Yes, Madam President.
THE PRESIDENT. Will the chairman of the committee
please read Section 15?
MR. VILLEGAS. The entire Section 15, as amended,
reads: "No franchise, certificate, or any other form of
authorization for the operation of a public utility shall
be granted except to citizens of the Philippines or to
corporations or associations organized under the laws
of the Philippines at least 60 PERCENT OF WHOSE
CAPITAL is owned by such citizens." May I request
Commissioner Bengzon to please continue reading.
MR. BENGZON. "THE PARTICIPATION OF
FOREIGN INVESTORS IN THE GOVERNING BODY
OF ANY PUBLIC UTILITY ENTERPRISE SHALL BE
LIMITED TO THEIR PROPORTIONATE SHARE IN
THE CAPITAL THEREOF AND ALL THE
EXECUTIVE AND MANAGING OFFICERS OF SUCH
CORPORATIONS OR ASSOCIATIONS MUST BE
CITIZENS OF THE PHILIPPINES."
MR. VILLEGAS. "NOR SHALL SUCH FRANCHISE,
CERTIFICATE OR AUTHORIZATION BE
EXCLUSIVE IN CHARACTER OR FOR A PERIOD
LONGER THAN TWENTY-FIVE YEARS
RENEWABLE FOR NOT MORE THAN TWENTY-
FIVE YEARS. Neither shall any such franchise or
right be granted except under the condition that it
shall be subject to amendment, alteration, or repeal
by Congress when the common good so requires.
The State shall encourage equity participation in
public utilities by the general public."
VOTING
xxxx
The results show 29 votes in favor and 4 against;
Section 15, as amended, is approved. (Emphasis48 
supplied)
The last sentence of Section 11, Article XII of the
1987 Constitution, particularly the provision on the
limited participation of foreign investors in the
governing body of public utilities, is a reiteration of the
last sentence of Section 5, Article XIV of the 1973
Constitution, signifying its importance in reserving
49 
ownership and control of public utilities to Filipino
citizens.
VIII.
The undisputed facts
There is no dispute, and respondents do not claim the
contrary, that (1) foreigners own 64.27% of the
common shares of PLDT, which class of shares
exercises the sole right to vote in the election of
directors, and thus foreigners control PLDT; (2)
Filipinos own only 35.73% of PLDT’s common shares,
constituting a minority of the voting stock, and thus
Filipinos do not control PLDT; (3) preferred shares,
99.44% owned by Filipinos, have no voting rights; (4)
preferred shares earn only 1/70 of the dividends that
common shares earn; (5) preferred shares have
50 
twice the par value of common shares; and (6)
preferred shares constitute 77.85% of the authorized
capital stock of PLDT and common shares only
22.15%.
Despite the foregoing facts, the Court did not decide,
and in fact refrained from ruling on the question of
whether PLDT violated the 60-40 ownership
requirement in favor of Filipino citizens in Section 11,
Article XII of the 1987 Constitution. Such question
indisputably calls for a presentation and determination
of evidence through a hearing, which is generally
outside the province of the Court’s jurisdiction, but
well within the SEC’s statutory powers. Thus, for
obvious reasons, the Court limited its decision on the
purely legal and threshold issue on the definition of
the term "capital" in Section 11, Article XII of the
Constitution and directed the SEC to apply such
definition in determining the exact percentage of
foreign ownership in PLDT.
IX.
PLDT is not an indispensable party;
SEC is impleaded in this case.
In his petition, Gamboa prays, among others:
xxxx
5. For the Honorable Court to issue a declaratory
relief that ownership of common or voting shares is
the sole basis in determining foreign equity in a public
utility and that any other government rulings, opinions,
and regulations inconsistent with this declaratory relief
be declared unconstitutional and a violation of the
intent and spirit of the 1987 Constitution;
6. For the Honorable Court to declare null and void all
sales of common stocks to foreigners in excess of 40
percent of the total subscribed common
shareholdings; and
7. For the Honorable Court to direct the Securities
and Exchange Commission and Philippine Stock
Exchange to require PLDT to make a public
disclosure of all of its foreign shareholdings and
their actual and real beneficial owners.
Other relief(s) just and equitable are likewise prayed
for. (Emphasis supplied)
As can be gleaned from his prayer, Gamboa clearly
asks this Court to compel the SEC to perform its
statutory duty to investigate whether "the required
percentage of ownership of the capital stock to be
owned by citizens of the Philippines has been
complied with [by PLDT] as required by x x x the
Constitution." Such plea clearly negates SEC’s
51 
argument that it was not impleaded.
Granting that only the SEC Chairman was impleaded
in this case, the Court has ample powers to order the
SEC’s compliance with its directive contained in the
28 June 2011 Decision in view of the far-reaching
implications of this case. In Domingo v. Scheer, the52 
Court dispensed with the amendment of the pleadings
to implead the Bureau of Customs considering (1) the
unique backdrop of the case; (2) the utmost need to
avoid further delays; and (3) the issue of public
interest involved. The Court held:
The Court may be curing the defect in this case by
adding the BOC as party-petitioner. The petition
should not be dismissed because the second action
would only be a repetition of the first. In Salvador, et
al., v. Court of Appeals, et al., we held that this Court
has full powers, apart from that power and authority
which is inherent, to amend the processes, pleadings,
proceedings and decisions by substituting as party-
plaintiff the real party-in-interest. The Court has the
power to avoid delay in the disposition of this
case, to order its amendment as to implead the
BOC as party-respondent. Indeed, it may no
longer be necessary to do so taking into account
the unique backdrop in this case, involving as it
does an issue of public interest. After all, the Office
of the Solicitor General has represented the petitioner
in the instant proceedings, as well as in the appellate
court, and maintained the validity of the deportation
order and of the BOC’s Omnibus Resolution. It
cannot, thus, be claimed by the State that the BOC
was not afforded its day in court, simply because only
the petitioner, the Chairperson of the BOC, was the
respondent in the CA, and the petitioner in the instant
recourse. In Alonso v. Villamor, we had the occasion
to state:
There is nothing sacred about processes or
pleadings, their forms or contents. Their sole
purpose is to facilitate the application of justice to
the rival claims of contending parties. They were
created, not to hinder and delay, but to facilitate and
promote, the administration of justice. They do not
constitute the thing itself, which courts are always
striving to secure to litigants. They are designed as
the means best adapted to obtain that thing. In other
words, they are a means to an end. When they lose
the character of the one and become the other, the
administration of justice is at fault and courts are
correspondingly remiss in the performance of their
obvious duty. (Emphasis supplied)
53 
In any event, the SEC has expressly
manifested that it will abide by the Court’s
54 
decision and defer to the Court’s definition of the
term "capital" in Section 11, Article XII of the
Constitution. Further, the SEC entered its special
appearance in this case and argued during the
Oral Arguments, indicating its submission to the
Court’s jurisdiction. It is clear, therefore, that
there exists no legal impediment against the
proper and immediate implementation of the
Court’s directive to the SEC.
PLDT is an indispensable party only insofar as the
other issues, particularly the factual questions, are
concerned. In other words, PLDT must be impleaded
in order to fully resolve the issues on (1) whether the
sale of 111,415 PTIC shares to First Pacific violates
the constitutional limit on foreign ownership of PLDT;
(2) whether the sale of common shares to foreigners
exceeded the 40 percent limit on foreign equity in
PLDT; and (3) whether the total percentage of the
PLDT common shares with voting rights complies with
the 60-40 ownership requirement in favor of Filipino
citizens under the Constitution for the ownership and
operation of PLDT. These issues indisputably call for
an examination of the parties’ respective evidence,
and thus are clearly within the jurisdiction of the SEC.
In short, PLDT must be impleaded, and must
necessarily be heard, in the proceedings before the
SEC where the factual issues will be thoroughly
threshed out and resolved.
Notably, the foregoing issues were left untouched
by the Court. The Court did not rule on the factual
issues raised by Gamboa, except the single and
purely legal issue on the definition of the term
"capital" in Section 11, Article XII of the Constitution.
The Court confined the resolution of the instant case
to this threshold legal issue in deference to the fact-
finding power of the SEC.
Needless to state, the Court can validly, properly, and
fully dispose of the fundamental legal issue in this
case even without the participation of PLDT since
defining the term "capital" in Section 11, Article XII of
the Constitution does not, in any way, depend on
whether PLDT was impleaded. Simply put, PLDT is
not indispensable for a complete resolution of the
purely legal question in this case. In fact, the Court,
55 
by treating the petition as one for mandamus, merely
56 
directed the SEC to apply the Court’s definition of the
term "capital" in Section 11, Article XII of the
Constitution in determining whether PLDT committed
any violation of the said constitutional provision. The
dispositive portion of the Court’s ruling is
addressed not to PLDT but solely to the SEC,
which is the administrative agency tasked to
enforce the 60-40 ownership requirement in favor
of Filipino citizens in Section 11, Article XII of the
Constitution.
Since the Court limited its resolution on the purely
legal issue on the definition of the term "capital" in
Section 11, Article XII of the 1987 Constitution, and
directed the SEC to investigate any violation by PLDT
of the 60-40 ownership requirement in favor of Filipino
citizens under the Constitution, there is no deprivation
57 
of PLDT’s property or denial of PLDT’s right to due
process, contrary to Pangilinan and Nazareno’s
misimpression. Due process will be afforded to PLDT
when it presents proof to the SEC that it complies, as
it claims here, with Section 11, Article XII of the
Constitution.
X.
Foreign Investments in the Philippines
Movants fear that the 28 June 2011 Decision would
spell disaster to our economy, as it may result in a
sudden flight of existing foreign investors to
"friendlier" countries and simultaneously deterring
new foreign investors to our country. In particular, the
PSE claims that the 28 June 2011 Decision may
result in the following: (1) loss of more than ₱ 630
billion in foreign investments in PSE-listed shares; (2)
massive decrease in foreign trading transactions; (3)
lower PSE Composite Index; and (4) local investors
not investing in PSE-listed shares. 58
Dr. Bernardo M. Villegas, one of the amici curiae in
the Oral Arguments, shared movants’ apprehension.
Without providing specific details, he pointed out the
depressing state of the Philippine economy compared
to our neighboring countries which boast of growing
economies. Further, Dr. Villegas explained that the
solution to our economic woes is for the government
to "take-over" strategic industries, such as the public
utilities sector, thus:
JUSTICE CARPIO:
I would like also to get from you Dr. Villegas if you
have additional information on whether this high
FDI countries in East Asia have allowed foreigners x
59 
x x control [of] their public utilities, so that we can
compare apples with apples.
DR. VILLEGAS:
Correct, but let me just make a comment. When these
neighbors of ours find an industry strategic, their
solution is not to "Filipinize" or "Vietnamize" or
"Singaporize." Their solution is to make sure that
those industries are in the hands of state
enterprises. So, in these countries, nationalization
means the government takes over. And because
their governments are competent and honest
enough to the public, that is the solution. x x
x  (Emphasis supplied)
60 
If government ownership of public utilities is the
solution, then foreign investments in our public utilities
serve no purpose. Obviously, there can never be
foreign investments in public utilities if, as Dr. Villegas
claims, the "solution is to make sure that those
industries are in the hands of state enterprises." Dr.
Villegas’s argument that foreign investments in
telecommunication companies like PLDT are badly
needed to save our ailing economy contradicts his
own theory that the solution is for government to take
over these companies. Dr. Villegas is barking up the
wrong tree since State ownership of public utilities
and foreign investments in such industries are
diametrically opposed concepts, which cannot
possibly be reconciled.
In any event, the experience of our neighboring
countries cannot be used as argument to decide the
present case differently for two reasons. First, the
governments of our neighboring countries have, as
claimed by Dr. Villegas, taken over ownership and
control of their strategic public utilities like the
telecommunications industry. Second, our
Constitution has specific provisions limiting foreign
ownership in public utilities which the Court is sworn
to uphold regardless of the experience of our
neighboring countries.
In our jurisdiction, the Constitution expressly reserves
the ownership and operation of public utilities to
Filipino citizens, or corporations or associations at
least 60 percent of whose capital belongs to Filipinos.
Following Dr. Villegas’s claim, the Philippines appears
to be more liberal in allowing foreign investors to own
40 percent of public utilities, unlike in other Asian
countries whose governments own and operate such
industries.
XI.
Prospective Application of Sanctions
In its Motion for Partial Reconsideration, the SEC
sought to clarify the reckoning period of the
application and imposition of appropriate sanctions
against PLDT if found violating Section 11, Article XII
of the Constitution.1avvphi1
As discussed, the Court has directed the SEC to
investigate and determine whether PLDT violated
Section 11, Article XII of the Constitution. Thus, there
is no dispute that it is only after the SEC has
determined PLDT’s violation, if any exists at the time
of the commencement of the administrative case or
investigation, that the SEC may impose the statutory
sanctions against PLDT. In other words, once the 28
June 2011 Decision becomes final, the SEC shall
impose the appropriate sanctions only if it finds after
due hearing that, at the start of the administrative
case or investigation, there is an existing violation of
Section 11, Article XII of the Constitution. Under
prevailing jurisprudence, public utilities that fail to
comply with the nationality requirement under Section
11, Article XII and the FIA can cure their deficiencies
prior to the start of the administrative case or
investigation.61
XII.
Final Word
The Constitution expressly declares as State policy
the development of an economy "effectively
controlled" by Filipinos. Consistent with such State
policy, the Constitution explicitly reserves the
ownership and operation of public utilities to
Philippine nationals, who are defined in the Foreign
Investments Act of 1991 as Filipino citizens, or
corporations or associations at least 60 percent of
whose capital with voting rights belongs to Filipinos.
The FIA’s implementing rules explain that "[f]or stocks
to be deemed owned and held by Philippine citizens
or Philippine nationals, mere legal title is not enough
to meet the required Filipino equity. Full beneficial
ownership of the stocks, coupled with appropriate
voting rights is essential." In effect, the FIA clarifies,
reiterates and confirms the interpretation that the term
"capital" in Section 11, Article XII of the 1987
Constitution refers to shares with voting rights, as
well as with full beneficial ownership. This is
precisely because the right to vote in the election of
directors, coupled with full beneficial ownership of
stocks, translates to effective control of a corporation.
Any other construction of the term "capital" in Section
11, Article XII of the Constitution contravenes the
letter and intent of the Constitution. Any other
meaning of the term "capital" openly invites alien
domination of economic activities reserved exclusively
to Philippine nationals. Therefore, respondents’
interpretation will ultimately result in handing over
effective control of our national economy to foreigners
in patent violation of the Constitution, making Filipinos
second-class citizens in their own country.
Filipinos have only to remind themselves of how this
country was exploited under the Parity Amendment,
which gave Americans the same rights as Filipinos in
the exploitation of natural resources, and in the
ownership and control of public utilities, in the
Philippines. To do this the 1935 Constitution, which
contained the same 60 percent Filipino ownership and
control requirement as the present 1987 Constitution,
had to be amended to give Americans parity rights
with Filipinos. There was bitter opposition to the Parity
Amendment and many Filipinos eagerly awaited its
62 
expiration. In late 1968, PLDT was one of the
American-controlled public utilities that became
Filipino-controlled when the controlling American
stockholders divested in anticipation of the expiration
of the Parity Amendment on 3 July 1974. No 63 
economic suicide happened when control of public
utilities and mining corporations passed to Filipinos’
hands upon expiration of the Parity Amendment.
Movants’ interpretation of the term "capital" would
bring us back to the same evils spawned by the Parity
Amendment, effectively giving foreigners parity
rights with Filipinos, but this time even without
any amendment to the present Constitution.
Worse, movants’ interpretation opens up our national
economy to effective control not only by Americans
but also by all foreigners, be they Indonesians,
Malaysians or Chinese, even in the absence of
reciprocal treaty arrangements. At least the Parity
Amendment, as implemented by the Laurel-Langley
Agreement, gave the capital-starved Filipinos
theoretical parity – the same rights as Americans to
exploit natural resources, and to own and control
public utilities, in the United States of America. Here,
movants’ interpretation would effectively mean
a unilateral opening up of our national economy to all
foreigners, without any reciprocal arrangements.
That would mean that Indonesians, Malaysians and
Chinese nationals could effectively control our mining
companies and public utilities while Filipinos, even if
they have the capital, could not control similar
corporations in these countries.
The 1935, 1973 and 1987 Constitutions have the
same 60 percent Filipino ownership and control
requirement for public utilities like PLOT. Any
deviation from this requirement necessitates an
amendment to the Constitution as exemplified by the
Parity Amendment. This Court has no power to
amend the Constitution for its power and duty is only
to faithfully apply and interpret the Constitution.
WHEREFORE, we DENY the motions for
reconsideration WITH FINALITY. No further
pleadings shall be entertained.
SO ORDERED.
4) West Virginia State Board of Education vs. Barnette
(319 US 624, 638)
Following the decision by this Court on
June 3, 1940, in Minersville School
District v. Gobitis, 310 U.S. 586, 60 S.Ct.
1010, 84 L.Ed. 1375, 127 A.L.R. 1493,
the West Virginia legislature amended its
statutes to require all schools therein to
conduct courses of instruction in history,
civics, and in the Constitutions of the
United States and of the State 'for the
purpose of teaching, fostering and
perpetuating the ideals, principles and
spirit of Americanism, and increasing the
knowledge of the organization and
machinery of the government.' Appellant
Board of Education was directed, with
advice of the State Superintendent of
Schools, to 'prescribe the courses of
study covering these subjects' for public
schools. The Act made it the duty of
private, parochial and denominational
schools to prescribe courses of study
'similar to those required for the public
schools.'1
2 and of West Virginia, brought suit in the
The Board of Education on January 9,
1942, adopted a resolution containing
recitals taken largely from the Court's
Gobitis opinion and ordering that the
salute to the flag become 'a regular part
of the program of activities in the public
schools,' that all teachers and pupils
'shall be required to participate in the
salute honoring the Nation represented
by the Flag; provided, however, that
refusal to salute the Flag be regarded as
an Act of insubordination, and shall be
dealt with accordingly.'2
3
The resolution originally required the
'commonly accepted salute to the Flag'
which it defined. Objections to the salute
as 'being too much like Hitler's' were
raised by the Parent and Teachers
Association, the Boy and Girl Scouts, the
Red Cross, and the Federation of
Women's Clubs.3 Some modification
appears to have been made in deference
to these objections, but no concession
was made to Jehovah's Witnesses.4 What
is now required is the 'stiff-arm' salute,
the saluter to keep the right hand raised
with palm turned up while the following
is repeated: 'I pledge allegiance to the
Flag of the United States of America and
to the Republic for which it stands; one
Nation, indivisible, with liberty and
justice for all.'
4
Failure to conform is 'insubordination'
dealt with by expulsion. Readmission is
denied by statute until compliance.
Meanwhile the expelled child is
'unlawfully absent'5 and may be
proceeded against as a delinquent. 6 His
parents or guardians are liable to
prosecution,7 and if convicted are
subject to fine not exceeding $50 and jail
term not exceeding thirty days.8
5
Appellees, citizens of the United States
United States District Court for
themselves and others similarly situated
asking its injunction to restrain
enforcement of these laws and
regulations against Jehovah's Witnesses.
The Witnesses are an unincorporated
body teaching that the obligation
imposed by law of God is superiod to
that of laws enacted by temporal
government. Their religious beliefs
include a literal version of Exodus,
Chapter 20, verses 4 and 5, which says:
'Thou shalt not make unto thee any
graven image, or any likeness of
anything that is in heaven above, or that
is in the earth beneath, or that is in the
water under the earth; thou shalt not
bow down thyself to them nor serve
them.' They consider that the flag is an
'image' within this command. For this
reason they refuse to salute it.
6 rights of the individual. The State asserts
Children of this faith have been expelled
from school and are threatened with
exclusion for no other cause. Officials
threaten to send them to reformatories
maintained for criminally inclined
juveniles. Parents of such children have
been prosecuted and are threatened with
prosecutions for causing delinquency.
7 10
The Board of Education moved to dismiss
the complaint setting forth these facts
and alleging that the law and regulations
are an unconstitutional denial of religious
freedom, and of freedom of speech, and
are invalid under the 'due process' and
'equal protection' clauses of
the Fourteenth Amendment to the
Federal Constitution. The cause was
submitted on the pleadings to a District
Court of three judges. It restrained
enforcement as to the plaintiffs and
those of that class. The Board of
Education brought the case here by
direct appeal.9
8
This case calls upon us to reconsider a
precedent decision, as the Court
throughout its history often has been
required to do.10 Before turning to the
Gobitis case, however, it is desirable to
notice certain characteristics by which
this controversy is distinguished.
9
The freedom asserted by these appellees
does not bring them into collision with
rights asserted by any other individual. It
is such conflicts which most frequently
require intervention of the State to
determine where the rights of one end
and those of another begin. But the
refusal of these persons to participate in
the ceremony does not interfere with or
deny rights of others to do so. Nor is
there any question in this case that their
behavior is peaceable and orderly. The
sole conflict is between authority and
power to condition access to public
education on making a prescribed sign
and profession and at the same time to
coerce attendance by punishing both
parent and child. The latter stand on a
right of self-determination in matters
that touch individual opinion and
personal attitude.
As the present Chief Justice said in
dissent in the Gobitis case, the State
may 'require teaching by instruction and
study of all in our history and in the
structure and organization of our
government, including the guaranties of
civil liberty which tend to inspire
patriotism and love of country.' 310 U.S.
at page 604, 60 S.Ct. at page 1017, 84
L.Ed. 1375, 127 A.L.R. 1493. Here,
however, we are dealing with a
compulsion of students to declare a
belief. They are not merely made
acquainted with the flag salute so that
they may be informed as to what it is or
even what it means. The issue here is
whether this slow and easily
neglected11 route to aroused loyalties
constitutionally may be short-cut by
substituting a compulsory salute and
slogan.12 This issue is not prejudiced by
the Court's previous holding that where a
State, without compelling attendance,
extends college facilities to pupils who
voluntarily enroll, it may prescribe
military training as part of the course
without offense to the Constitution. It
was held that those who take advantage
of its opportunities may not on ground of
conscience refuse compliance with such
conditions. Hamilton v. Regents, 293
U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343. In
the present case attendance is not
optional. That case is also to be
distinguished from the present one
because, independently of college
privileges or requirements, the State has
power to raise militia and impose the
duties of service therein upon its citizens.
11
There is no doubt that, in connection
with the pledges, the flag salute is a
form of utterance. Symbolism is a
primitive but effective way of
communicating ideas. The use of an
emblem or flag to symbolize some
system, idea, institution, or personality,
is a short cut from mind to mind. Causes
and nations, political parties, lodges and
ecclesiastical groups seek to knit the
loyalty of their followings to a flag or
banner, a color or design. The State
announces rank, function, and authority
through crowns and maces, uniforms and
black robes; the church speaks through
the Cross, the Crucifix, the altar and
shrine, and clerical reiment. Symbols of
State often convey political ideas just as
religious symbols come to convey
theological ones. Associated with many
of these symbols are appropriate
gestures of acceptance or respect: a
salute, a bowed or bared head, a bended
knee. A person gets from a symbol the
meaning he puts into it, and what is one
man's comfort and inspiration is
another's jest and scorn.
12
Over a decade ago Chief Justice Hughes
led this Court in holding that the display
of a red flag as a symbol of opposition by
peaceful and legal means to organized
government was protected by the free
speech guaranties of the Constitution.
Stromberg v. California, 283 U.S.
359, 51 S.Ct. 532, 75 L.Ed. 1117, 73
A.L.R. 1484. Here it is the State that
employs a flag as a symbol of adherence
to government as presently organized. It
requires the individual to communicate
by word and sign his acceptance of the
political ideas it thus bespeaks. Objection
to this form of communication when
coerced is an old one, well known to the
framers of the Bill of Rights.13
13
It is also to be noted that the compulsory
flag salute and pledge requires
affirmation of a belief and an attitude of
mind. It is not clear whether the
regulation contemplates that pupils
forego any contrary convictions of their
own and become unwilling converts to
the prescribed ceremony or whether it
will be acceptable if they simulate assent
by words without belief and by a gesture
barren of meaning. It is now a
commonplace that censorship or
suppression of expression of opinion is
tolerated by our Constitution only when
the expression presents a clear and
present danger of action of a kind the
State is empowered to prevent and
punish. It would seem that involuntary
affirmation could be commanded only on
even more immediate and urgent
grounds than silence. But here the power
of compulsion is invoked without any
allegation that remaining passive during
a flag salute ritual creates a clear and
present danger that would justify an
effort even to muffle expression. To
sustain the compulsory flag salute we are
required to say that a Bill of Rights which
guards the individual's right to speak his
own mind, left it open to public
authorities to compel him to utter what is
not in his mind.
14
Whether the First Amendment to the
Constitution will permit officials to order
observance of ritual of this nature does
not depend upon whether as a voluntary
exercise we would think it to be good,
bad or merely innocuous. Any credo of
nationalism is likely to include what some
disapprove or to omit what others think
essential, and to give off different
overtones as it takes on different accents
or interpretations.14 If official power
exists to coerce acceptance of any
patriotic creed, what it shall contain
cannot be decided by courts, but must be
largely discretionary with the ordaining
authority, whose power to prescribe
would no doubt include power to amend.
Hence validity of the asserted power to
force an American citizen publicly to
profess any statement of belief or to
engage in any ceremony of assent to one
presents questions of power that must
be considered independently of any idea
we may have as to the utility of the
ceremony in question.
15
Nor does the issue as we see it turn on
one's possession of particular religious
views or the sincerity with which they are
held. While religion supplies appellees'
motive for enduring the discomforts of
making the issue in this case, many
citizens who do not share these religious
views hold such a compulsory rite to
infringe constitutional liberty of the
individual.15 It is not necessary to
inquire whether non-conformist beliefs
will exempt from the duty to salute
unless we first find power to make the
salute a legal duty.
16
The Gobitis decision, however, assumed,
as did the argument in that case and in
this, that power exists in the State to
impose the flag salute discipline upon
school children in general. The Court only
examined and rejected a claim based on
religious beliefs of immunity from an
unquestioned general rule.16 The
question which underlies the flag salute
controversy is whether such a ceremony
so touching matters of opinion and
political attitude may be imposed upon
the individual by official authority under
powers committed to any political
organization under our Constitution. We
examine rather than assume existence of
this power and, against this broader
definition of issues in this case, re-
examine specific grounds assigned for
the Gobitis decision.
17
1. It was said that the flag-salute
controversy confronted the Court with
'the problem which Lincoln cast in
memorable dilemma: 'Must a
government of necessity be too strong
for the liberties of its people, or too weak
to maintain its own existence?" and that
the answer must be in favor of strength.
Minersville School District v. Gobitis,
supra, 310 U.S. at page 596, 60 S.Ct. at
page 1013, 84 L.Ed. 1375, 127 A.L.R.
1493.
18
We think these issues may be examined
free of pressure or restraint growing out
of such considerations.
19
It may be doubted whether Mr. Lincoln
would have thought that the strength of
government to maintain itself would be
impressively vindicated by our confirming
power of the state to expel a handful of
children from school. Such
oversimplification, so handy in political
debate, often lacks the precision
necessary to postulates of judicial
reasoning. If validly applied to this
problem, the utterance cited would
resolve every issue of power in favor of
those in authority and would require us The Fourteenth Amendment, as now
to override every liberty thought to applied to the States, protects the citizen
weaken or delay execution of their against the State itself and all of its
policies. creatures—Boards of Education not
excepted. These have, of course,
20
important, delicate, and highly
Government of limited power need not
discretionary functions, but none that
be anemic government. Assurance that
they may not perform within the limits of
rights are secure tends to diminish fear
the Bill of Rights. That they are
and jealousy of strong government, and
educating the young for citizenship is
by making us feel safe to live under it
reason for scrupulous protection of
makes for its better support. Without
Constitutional freedoms of the individual,
promise of a limiting Bill of Rights it is
if we are not to strangle the free mind at
doubtful if our Constitution could have
its source and teach youth to discount
mustered enough strength to enable its
important principles of our government
ratification. To enforce those rights today
as mere platitudes.
is not to choose weak government over
strong government. It is only to adhere 24
as a means of strength to individual Such Boards are numerous and their
freedom of mind in preference to territorial jurisdiction often small. But
officially disciplined uniformity for which small and local authority may feel less
history indicates a disappointing and sense of responsibility to the
disastrous end. Constitution, and agencies of publicity
may be less vigilent in calling it to
21
account. The action of Congress in
The subject now before us exemplifies
making flag observance voluntary17 and
this principle. Free public education, if
respecting the conscience of the objector
faithful to the ideal of secular instruction
in a matter so vital as raising the
and political neutrality, will not be
Army18 contrasts sharply with these local
partisan or enemy of any class, creed,
regulations in matters relatively trivial to
party, or faction. If it is to impose any
the welfare of the nation. There are
ideological discipline, however, each
village tyrants as well as village
party or denomination must seek to
Hampdens, but none who acts under
control, or failing that, to weaken the
color of law is beyond reach of the
influence of the educational system.
Constitution.
Observance of the limitations of the
Constitution will not weaken government 25
in the field appropriate for its exercise. 3. The Gobitis opinion reasoned that this
is a field 'where courts possess no
22
marked and certainly no controlling
2. It was also considered in the Gobitis
competence,' that it is committed to the
case that functions of educational officers
legislatures as well as the courts to
in states, counties and school districts
guard cherished liberties and that it is
were such that to interfere with their
constitutionally appropriate to 'fight out
authority 'would in effect make us the
the wise use of legislative authority in
school board for the country.' Id., 310
the forum of public opinion and before
U.S. at page 598, 60 S.Ct. at page 1015,
legislative assemblies rather than to
84 L.Ed. 1375, 127 A.L.R. 1493.
transfer such a contest to the judicial
23 arena,' since all the 'effective means of
inducing political changes are left free.'
Id., 310 U.S. at page 597, 598, 600, 60
S.Ct. at pages 1014, 1016, 84 L.Ed.
1375, 127 A.L.R. 1493.
26
The very purpose of a Bill of Rights was
to withdraw certain subjects from the
vicissitudes of political controversy, to
place them beyond the reach of
majorities and officials and to establish
them as legal principles to be applied by
the courts. One's right to life, liberty, and
property, to free speech, a free press,
freedom of worship and assembly, and
other fundamental rights may not be
submitted to vote; they depend on the
outcome of no elections.
27
In weighing arguments of the parties it is
important to distinguish between the due
process clause of the Fourteenth
Amendment as an instrument for
transmitting the principles of the First
Amendment and those cases in which it
is applied for its own sake. The test of
legislation which collides with
the Fourteenth Amendment, because it
also collides with the principles of the
First, is much more definite than the test
when only the Fourteenth is involved.
Much of the vagueness of the due
process clause disappears when the
specific prohibitions of the First become
its standard. The right of a State to
regulate, for example, a public utility
may well include, so far as the due
process test is concerned, power to
impose all of the restrictions which a
legislature may have a 'rational basis' for
adopting. But freedoms of speech and of
press, of assembly, and of worship may
not be infringed on such slender
grounds. They are susceptible of
restriction only to prevent grave and
immediate danger to interests which the
state may lawfully protect. It is
important to note that while it is
the Fourteenth Amendment which bears
directly upon the State it is the more
specific limiting principles of the First
Amendment that finally govern this case.
28
Nor does our duty to apply the Bill of
Rights to assertions of official authority
depend upon our possession of marked
competence in the field where the
invasion of rights occurs. True, the task
of translating the majestic generalities of
the Bill of Rights, conceived as part of
the pattern of liberal government in the
eighteenth century, into concrete
restraints on officials dealing with the
problems of the twentieth century, is one
to disturb self-confidence. These
principles grew in soil which also
produced a philosophy that the individual
was the center of society, that his liberty
was attainable through mere absence of
governmental restraints, and that
government should be entrusted with
few controls and only the mildest
supervision over men's affairs. We must
transplant these rights to a soil in which
the laissez-faire concept or principle of
non-interference has withered at least as
to economic affairs, and social
advancements are increasingly sought
through closer integration of society and
through expanded and strengthened
governmental controls. These changed
conditions often deprive precedents of
reliability and cast us more than we
would choose upon our own judgment.
But we act in these matters not by
authority of our competence but by force
of our commissions. We cannot, because
of modest estimates of our competence
in such specialties as public education,
withhold the judgment that history
authenticates as the function of this
Court when liberty is infringed.
29
4. Lastly, and this is the very heart of the
Gobitis opinion, it reasons that 'National
unity is the basis of national security,'
that the authorities have 'the right to
select appropriate means for its
attainment,' and hence reaches the
conclusion that such compulsory
measures toward 'national unity' are
constitutional. Id., 310 U.S. at page 595,
60 S.Ct. at page 1013, 84 L.Ed. 1375,
127 A.L.R. 1493. Upon the verity of this
assumption depends our answer in this
case.
30
National unity as an end which officials
may foster by persuasion and example is
not in question. The problem is whether
under our Constitution compulsion as
here employed is a permissible means
for its achievement.
31
Struggles to coerce uniformity of
sentiment in support of some end
thought essential to their time and
country have been waged by many good
as well as by evil men. Nationalism is a
relatively recent phenomenon but at
other times and places the ends have
been racial or territorial security, support
of a dynasty or regime, and particular
plans for saving souls. As first and
moderate methods to attain unity have
failed, those bent on its accomplishment
must resort to an ever-increasing
severity. As governmental pressure
toward unity becomes greater, so strife
becomes more bitter as to whose unity it
shall be. Probably no deeper division of
our people could proceed from any
provocation than from finding it
necessary to choose what doctrine and
whose program public educational
officials shall compel youth to unite in
embracing. Ultimate futility of such
attempts to compel coherence is the
lesson of every such effort from the
Roman drive to stamp out Christianity as
a disturber of its pagan unity, the
Inquisition, as a means to religious and
dynastic unity, the Siberian exiles as a
means to Russian unity, down to the fast
failing efforts of our present totalitarian
enemies. Those who begin coercive
elimination of dissent soon find
themselves exterminating dissenters.
Compulsory unification of opinion
achieves only the unanimity of the
graveyard.
32
It seems trite but necessary to say that
the First Amendment to our Constitution
was designed to avoid these ends by
avoiding these beginnings. There is no
mysticism in the American concept of the
State or of the nature or origin of its
authority. We set up government by
consent of the governed, and the Bill of
Rights denies those in power any legal
opportunity to coerce that consent.
Authority here is to be controlled by
public opinion, not public opinion by
authority.
33
The case is made difficult not b ecause
the principles of its decision are obscure
but because the flag involved is our own.
Nevertheless, we apply the limitations of
the Constitution with no fear that
freedom to be intellectually and
spiritually diverse or even contrary will
disintegrate the social organization. To
believe that patriotism will not flourish if
patriotic ceremonies are voluntary and
spontaneous instead of a compulsory
routine is to make an unflattering
estimate of the appeal of our institutions
to free minds. We can have intellectual
individualism and the rich cultural
diversities that we owe to exceptional
minds only at the price of occasional
eccentricity and abnormal attitudes.
When they are so harmless to others or
to the State as those we deal with here,
the price is not too great. But freedom to
differ is not limited to things that do not
matter much. That would be a mere
shadow of freedom. The test of its
substance is the right to differ as to
things that touch the heart of the
existing order.
34
If there is any fixed star in our
constitutional constellation, it is that no
official, high or petty, can prescribe what
shall be orthodox in politics, nationalism,
religion, or other matters of opinion or
force citizens to confess by word or act
their faith therein. If there are any
circumstances which permit an
exception, they do not now occur to
us.19
35
We think the action of the local
authorities in compelling the flag salute
and pledge transcends constitutional
limitations on their power and invades
the sphere of intellect and spirit which it
is the purpose of the First Amendment to
our Constitution to reserve from all
official control.
36
The decision of this Court in Minersville
School District v. Gobitis and the
holdings of those few per curiam
decisions which preceded and
foreshadowed it are overruled, and the
judgment enjoining enforcement of the
West Virginia Regulation is affirmed.
37
Affirmed.
38
Mr. Justice ROBERTS and Mr. Justice
REED adhere to the views expressed by
the Court in Minersville School District v.
Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84
L.Ed. 1375, 127 A.L.R. 1493, and are of
the opinion that the judgment below
should be reversed.
39
Mr. Justice BLACK and Mr. Justice
DOUGLAS, concurring.
40
We are substantially in agreement with
the opinion just read, but since we
originally joined with the Court in the
Gobitis case, it is appropriate that we
make a brief statement of reasons for
our change of view.
41
Reluctance to make the Federal
Constitution a rigid bar against state
regulation of conduct thought inimical to
the public welfare was the controlling
influence which moved us to consent to
the Gobitis decision. Long reflection
convinced us that although the principle
is sound, its application in the particular
case was wrong. Jones v. Opelika, 316
U.S. 584, 623, 62 S.Ct. 1231, 1251, 86
L.Ed. 1691, 141 A.L.R. 514. We believe
that the statute before us fails to accord
full scope to the freedom of religion
secured to the appellees by the First
and Fourteenth Amendments.
42
The statute requires the appellees to
participate in a ceremony aimed at
inculcating respect for the flag and for
this country. The Jehovah's Witnesses,
without any desire to show disrespect for
either the flag or the country, interpret
the Bible as commanding, at the risk of
God's displeasure, that they not go
through the form of a pledge of
allegiance to any flag. The devoutness of
their belief is evidenced by their
willingness to suffer persecution and
punishment, rather than make the
pledge.
43
No well-ordered society can leave to the
individuals an absolute right to make
final decisions, unassailable by the State,
as to everything they will or will not do.
The First Amendment does not go so far.
Religious faiths, honestly held, do not
free individuals from responsibility to
conduct themselves obediently to laws
which are either imperatively necessary
to protect society as a whole from grave
and pressingly imminent dangers or
which, without any general prohibition,
merely regulate time, place or manner of
religious activity. Decision as to the
constitutionality of particular laws which
strike at the substance of religious tenets
and practices must be made be this
Court. The duty is a solemn one, and in
meeting it we cannot say that a failure,
because of religious scruples, to assume
a particular physical position and to
repeat the words of a patriotic formula
creates a grave danger to the nation.
Such a statutory exaction is a form of
test oath, and the test oath has always
been abhorrent in the United States.
44
Words uttered under coercion are proof
of loyalty to nothing but self-interest.
Love of country must spring from willing
hearts and free minds, inspired by a fair
administration of wise laws enacted by
the people's elected representatives
within the bounds of express
constitutional prohibitions. These laws
must, to be consistent with the First
Amendment, permit the widest toleration
of conflicting viewpoints consistent with a
society of free men.
45
Neither our domestic tranquillity in peace
nor our martial effort in war depend on
compelling little children to participate in
a ceremony which ends in nothing for
them but a fear of spiritual
condemnation. If, as we think, their fears
are groundless, time and reason are the
proper antidotes for their errors. The
ceremonial, when enforced against
conscientious objectors, more likely to
defeat than to serve its high purpose, is
a handy implement for disguised
religious persecution. As such, it is
inconsistent with our Constitution's plan
and purpose.
46
Mr. Justice MURPHY, concurring.
47
I agree with the opinion of the Court and
join in it.
48
The complaint challenges an order of the
State Board of Education which requires
teachers and pupils to participate in the
prescribed salute to the flag. For refusal
to conform with the requirement the
State law prescribes expulsion. The
offender is required by law to be treated
as unlawfully absent from school and the
parent or guardian is made liable to
prosecution and punishment for such
absence. Thus not only is the privilege of
public education conditioned on
compliance with the requirement, but
non-compliance is virtually made
unlawful. In effect compliance is
compulsory and not optional. It is the
claim of appellees that the regulation is
invalid as a restriction on religious
freedom and freedom of speech, secured
to them against State infringement by
the First and Fourteenth Amendments to
the Constitution of the United States. DP
A reluctance to interfere with considered
state action, the fact that the end sought
is a desirable one, the emotion aroused
by the flag as a symbol for which we
have fought and are now fighting again,
—all of these are understandable. But
there is before us the right of freedom to
believe, freedom to worship one's Maker
according to the dictates of one's
conscience, a right which the
Constitution specifically shelters.
Reflection has convinced me that as a
judge I have no loftier duty or
responsibility than to uphold that
spiritual freedom to its farthest reaches.
49
The right of freedom of thought and of
religion as guaranteed by the
Constitution against State action includes
both the right to speak freely and the
right to refrain from speaking at all,
except in so far as essential operations of
government may require it for the
preservation of an orderly society,—as in
the case of compulsion to give evidence
in court. Without wishing to disparage
the purposes and intentions of those who
hope to inculcate sentiments of loyalty
nd patriotism by requiring a declaration
of allegiance as a feature of public
education, or unduly belittle the benefits
that may accrue therefrom, I am
impelled to conclude that such a
requirement is not essential to the
maintenance of effective government
and orderly society. To many it is deeply
distasteful to join in a public chorus of
affirmation of private belief. By some,
including the members of this sect, it is
apparently regarded as incompatible with
a primary religious obligation and
therefore a restriction on religious
freedom. Official compulsion to affirm
what is contrary to one's religious beliefs
is the antithesis of freedom of worship
which, it is well to recall, was achieved in
this country only after what Jefferson
characterized as the 'severest contests in
which I have ever been engaged.'20
50
I am unable to agree that the benefits
that may accrue to society from the
compulsory flag salute are sufficiently
definite and tangible to justify the
invasion of freedom and privacy that it
entailed or to compensate for a restraint
on the freedom of the individual to be
vocal or silent according to his
conscience or personal inclination. The
trenchant words in the preamble to the
Virginia Statute for Religious Freedom
remain unanswerable: '* * * all attempts
to influence (the mind) by temporal
punishment, or burthens, or by civil
incapacitations, tend only to beget habits
of hypocrisy and meanness, * * *.' Code
Va.1919, § 34. Any spark of love for
country which may be generated in a
child or his associates by forcing him to
make what is to him an empty gesture
and recite words wrung from him
contrary to his religious beliefs is
overshadowed by the desirability of
preserving freedom of conscience to the
full. It is in that freedom and the
example of persuasion, not in force and
compulsion, that the real unity of
America lies.
Classification of Rights
a) Civil Rights
b) Political Rights
c) Social and Economic Rights
Hierarchy of Rights
5) PBM Employees Org. vs. PBM Co., Inc. [51 SCRA 189
(1973)]
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees
Organization (hereinafter referred to as PBMEO) is a
legitimate labor union composed of the employees of
the respondent Philippine Blooming Mills Co., Inc.,
and petitioners Nicanor Tolentino, Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu and
Rodulfo Munsod are officers and members of the
petitioner Union.
Petitioners claim that on March 1, 1969, they decided
to stage a mass demonstration at Malacañang on
March 4, 1969, in protest against alleged abuses of
the Pasig police, to be participated in by the workers
in the first shift (from 6 A.M. to 2 P.M.) as well as
those in the regular second and third shifts (from 7
A.M. to 4 P.M. and from 8 A.M. to 5 P.M.,
respectively); and that they informed the respondent
Company of their proposed demonstration.
The questioned order dated September 15, 1969, of
Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation
of facts of the parties — parties —
3. That on March 2, 1969 complainant
company learned of the projected
mass demonstration at Malacañang in
protest against alleged abuses of the
Pasig Police Department to be
participated by the first shift (6:00 AM-
2:00 PM) workers as well as those
working in the regular shifts (7:00 A.M.
to 4:00 PM and 8:00 AM to 5:00 PM)
in the morning of March 4, 1969;
4. That a meeting was called by the
Company on March 3, 1969 at about
11:00 A.M. at the Company's canteen,
and those present were: for the
Company: (1) Mr. Arthur L. Ang (2)
Atty. S. de Leon, Jr., (3) and all
department and section heads. For
the PBMEO (1) Florencio Padrigano,
(2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5)
Bonifacio Vacuna and (6) Benjamin
Pagcu.
5. That the Company asked the union
panel to confirm or deny said
projected mass demonstration at
Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who
acted as spokesman of the union
panel, confirmed the planned
demonstration and stated that the
demonstration or rally cannot be
cancelled because it has already been
agreed upon in the meeting. Pagcu
explained further that the
demonstration has nothing to do with
the Company because the union has
no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S.
de Leon, Company personnel
manager, informed PBMEO that the
demonstration is an inalienable right of
the union guaranteed by the
Constitution but emphasized,
however, that any demonstration for
that matter should not unduly
prejudice the normal operation of the
Company. For which reason, the
Company, thru Atty. C.S. de Leon
warned the PBMEO representatives
that workers who belong to the first
and regular shifts, who without
previous leave of absence approved
by the Company, particularly , the
officers present who are the
organizers of the demonstration, who
shall fail to report for work the
following morning (March 4, 1969)
shall be dismissed, because such
failure is a violation of the existing
CBA and, therefore, would be
amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3,
1969, another meeting was convoked
Company represented by Atty. C.S. de
Leon, Jr. The Union panel was
composed of: Nicanor Tolentino,
Rodolfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company
reiterated and appealed to the
PBMEO representatives that while all
workers may join the Malacañang
demonstration, the workers for the first
and regular shift of March 4, 1969
should be excused from joining the
demonstration and should report for
work; and thus utilize the workers in
the 2nd and 3rd shifts in order not to
violate the provisions of the CBA,
particularly Article XXIV: NO
LOCKOUT — NO STRIKE'. All those
who will not follow this warning of the
Company shall be dismiss; De Leon
reiterated the Company's warning that
the officers shall be primarily liable
being the organizers of the mass
demonstration. The union panel
countered that it was rather too late to
change their plans inasmuch as the
Malacañang demonstration will be
held the following morning; and
8. That a certain Mr. Wilfredo Ariston,
adviser of PBMEO sent a cablegram
to the Company which was received
9:50 A.M., March 4, 1969, the
contents of which are as follows:
'REITERATING REQUEST EXCUSE
DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.'
(Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members
numbering about 400 proceeded with the
demonstration despite the pleas of the respondent
Company that the first shift workers should not be
required to participate in the demonstration and that
the workers in the second and third shifts should be
utilized for the demonstration from 6 A.M. to 2 P.M. on
March 4, 1969, respondent Company prior notice of
the mass demonstration on March 4, 1969, with the
respondent Court, a charge against petitioners and
other employees who composed the first shift,
charging them with a "violation of Section 4(a)-6 in
relation to Sections 13 and 14, as well as Section 15,
all of Republic Act No. 875, and of the CBA providing
for 'No Strike and No Lockout.' " (Annex "A", pp. 19-
20, rec.). The charge was accompanied by the joint
affidavit of Arthur L. Ang and Cesareo de Leon, Jr.
(Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18,
1969, by Acting Chief Prosecutor Antonio T. Tirona
and Acting Prosecutor Linda P. Ilagan (Annex "C", pp.
25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners
claim that they did not violate the existing CBA
because they gave the respondent Company prior
notice of the mass demonstration on March 4, 1969;
that the said mass demonstration was a valid exercise
of their constitutional freedom of speech against the
alleged abuses of some Pasig policemen; and that
their mass demonstration was not a declaration of
strike because it was not directed against the
respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of
facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969,
found herein petitioner PBMEO guilty of bargaining in
bad faith and herein petitioners Florencio Padrigano,
Rufino Roxas, Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu, Nicanor
Tolentino and Rodulfo Munsod as directly responsible
for perpetrating the said unfair labor practice and
were, as a consequence, considered to have lost their
status as employees of the respondent Company
(Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on
September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because
September 28, 1969 fell on Sunday (p. 59, rec.), a
motion for reconsideration of said order dated
September 15, 1969, on the ground that it is contrary
to law and the evidence, as well as asked for ten (10)
days within which to file their arguments pursuant to
Sections 15, 16 and 17 of the Rules of the CIR, as
amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on
October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September
22, 1969, the order dated September 17 (should be
September 15), 1969; that under Section 15 of the
amended Rules of the Court of Industrial Relations,
herein petitioners had five (5) days from September
22, 1969 or until September 27, 1969, within which to
file their motion for reconsideration; and that because
their motion for reconsideration was two (2) days late,
it should be accordingly dismissed, invoking Bien vs.
Castillo,  which held among others, that a motion for
1 article of faith of our civilization. The inviolable
extension of the five-day period for the filing of a
motion for reconsideration should be filed before the
said five-day period elapses (Annex "M", pp. 61-64,
rec.).
Subsequently, herein petitioners filed on October 14,
1969 their written arguments dated October 11, 1969,
in support of their motion for reconsideration (Annex
"I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the
respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro
forma as it was filed beyond the reglementary period
prescribed by its Rules (Annex "J", pp. 74-75, rec.),
which herein petitioners received on October 28, 196
(pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October
9, 1969, which was released on October 24, 1969 and
addressed to the counsels of the parties (pp. 75-76,
rec.), appear the requirements of Sections 15, 16 and
17, as amended, of the Rules of the Court of
Industrial Relations, that a motion for reconsideration
shall be filed within five (5) days from receipt of its
decision or order and that an appeal from the
decision, resolution or order of the C.I.R., sitting en
banc, shall be perfected within ten (10) days from
receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the
respondent court a petition for relief from the order
dated October 9, 1969, on the ground that their failure
to file their motion for reconsideration on time was
due to excusable negligence and honest mistake
committed by the president of the petitioner Union
and of the office clerk of their counsel, attaching
thereto the affidavits of the said president and clerk
(Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for
relief from the order dated October 9, 1969, herein
petitioners filed on November 3, 1969, with the
Supreme Court, a notice of appeal (Annex "L", pp. 88-
89, rec.).
I
There is need of briefly restating basic concepts and
principles which underlie the issues posed by the
case at bar.
(1) In a democracy, the preservation and
enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal
character of man as an individual must be "protected
to the largest possible extent in his thoughts and in
his beliefs as the citadel of his person."
2
(2) The Bill of Rights is designed to preserve the
ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the
passing hour, the erosion of small encroachments,
and the scorn and derision of those who have no
patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson,
the purpose of the Bill of Rights is to withdraw "certain
subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and
officials, and to establish them as legal principles to
be applied by the courts. One's rights to life, liberty
and property, to free speech, or free press, freedom
of worship and assembly, and other fundamental
rights may not be submitted to a vote; they depend on
the outcome of no elections."  Laski proclaimed that
4
"the happiness of the individual, not the well-being of
the State, was the criterion by which its behaviour
was to be judged. His interests, not its power, set the
limits to the authority it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as
well as the right to petition are included among the
immunities reserved by the sovereign people, in the
rhetorical aphorism of Justice Holmes, to protect the
ideas that we abhor or hate more than the ideas we
cherish; or as Socrates insinuated, not only to protect
the minority who want to talk, but also to benefit the
majority who refuse to listen.  And as Justice Douglas
6
cogently stresses it, the liberties of one are the
liberties of all; and the liberties of one are not safe
unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and
petition, are not only civil rights but also political rights
essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.
Thru these freedoms the citizens can participate not
merely in the periodic establishment of the
government through their suffrage but also in the
administration of public affairs as well as in the
discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for
redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and
employees.
(5) While the Bill of Rights also protects property
rights, the primacy of human rights over property
rights is recognized.  Because these freedoms are
8
"delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions
may deter their exercise almost as potently as the
actual application of sanctions," they "need breathing
space to survive," permitting government regulation
only "with narrow specificity." 9
Property and property rights can be lost thru
prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of
oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free
expression and of assembly occupy a preferred
position as they are essential to the preservation and
vitality of our civil and political institutions;   and such
10
priority "gives these liberties the sanctity and the
sanction not permitting dubious intrusions."  11
The superiority of these freedoms over property rights
is underscored by the fact that a mere reasonable or
rational relation between the means employed by the
law and its object or purpose — that the law is neither
arbitrary nor discriminatory nor oppressive — would
suffice to validate a law which restricts or impairs
property rights.   On the other hand, a constitutional
12
or valid infringement of human rights requires a more
stringent criterion, namely existence of a grave and
immediate danger of a substantive evil which the
State has the right to prevent. So it has been stressed
in the main opinion of Mr. Justice Fernando
in Gonzales vs. Comelec and reiterated by the writer
of the opinion in Imbong vs. Ferrer.   It should be
13
added that Mr. Justice Barredo in Gonzales vs.
Comelec, supra, like Justices Douglas, Black and
Goldberg in N.Y. Times Co. vs. Sullivan,   believes 14
that the freedoms of speech and of the press as well
as of peaceful assembly and of petition for redress of
grievances are absolute when directed against public
officials or "when exercised in relation to our right to
choose the men and women by whom we shall be
governed,"   even as Mr. Justice Castro relies on the
15
balancing-of-interests test.   Chief Justice Vinson is
16
partial to the improbable danger rule formulated by
Chief Judge Learned Hand, viz. — whether the
gravity of the evil, discounted by its improbability,
justifies such invasion of free expression as is
necessary to avoid the danger.  17
II
The respondent Court of Industrial Relations, after
opining that the mass demonstration was not a
declaration of strike, concluded that by their
"concerted act and the occurrence temporary
stoppage of work," herein petitioners are guilty
bargaining in bad faith and hence violated the
collective bargaining agreement with private
respondent Philippine Blooming Mills Co., inc.. Set
against and tested by foregoing principles governing a
democratic society, such conclusion cannot be
sustained. The demonstration held petitioners on
March 4, 1969 before Malacañang was against
alleged abuses of some Pasig policemen, not against
their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise
of their freedom expression in general and of their
right of assembly and petition for redress of
grievances in particular before appropriate
governmental agency, the Chief Executive, again the
police officers of the municipality of Pasig. They
exercise their civil and political rights for their mutual
aid protection from what they believe were police
excesses. As matter of fact, it was the duty of herein
private respondent firm to protect herein petitioner
Union and its members fro the harassment of local
police officers. It was to the interest herein private
respondent firm to rally to the defense of, and take up
the cudgels for, its employees, so that they can report
to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective
tasks enhance its productivity as well as profits.
Herein respondent employer did not even offer to
intercede for its employees with the local police. Was
it securing peace for itself at the expenses of its
workers? Was it also intimidated by the local police or
did it encourage the local police to terrorize or vex its
workers? Its failure to defend its own employees all
the more weakened the position of its laborers the
alleged oppressive police who might have been all the
more emboldened thereby subject its lowly
employees to further indignities.
In seeking sanctuary behind their freedom of
expression well as their right of assembly and of
petition against alleged persecution of local
officialdom, the employees and laborers of herein
private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them by
the Constitution — the untrammelled enjoyment of
their basic human rights. The pretension of their
employer that it would suffer loss or damage by
reason of the absence of its employees from 6 o'clock
in the morning to 2 o'clock in the afternoon, is a plea
for the preservation merely of their property rights.
Such apprehended loss or damage would not spell
the difference between the life and death of the firm or
its owners or its management. The employees'
pathetic situation was a stark reality — abused,
harassment and persecuted as they believed they
were by the peace officers of the municipality. As
above intimated, the condition in which the employees
found themselves vis-a-vis the local police of Pasig,
was a matter that vitally affected their right to
individual existence as well as that of their families.
Material loss can be repaired or adequately
compensated. The debasement of the human being
broken in morale and brutalized in spirit-can never be
fully evaluated in monetary terms. The wounds fester
and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial
of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights —
freedom of expression, of peaceful assembly and of
petition for redress of grievances — over property
rights has been sustained.   Emphatic reiteration of
18
this basic tenet as a coveted boon — at once the
shield and armor of the dignity and worth of the
human personality, the all-consuming ideal of our
enlightened civilization — becomes Our duty, if
freedom and social justice have any meaning at all for
him who toils so that capital can produce economic
goods that can generate happiness for all. To regard
the demonstration against police officers, not against
the employer, as evidence of bad faith in collective
bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal
from employment of the demonstrating employees,
stretches unduly the compass of the collective
bargaining agreement, is "a potent means of inhibiting
speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition.  19
The collective bargaining agreement which fixes the
working shifts of the employees, according to the
respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the
Court of Industrial Relations that a stipulated working
shifts deny the workers the right to stage mass
demonstration against police abuses during working
hours, constitutes a virtual tyranny over the mind and
life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated
on such a slender ground.
The mass demonstration staged by the employees on
March 4, 1969 could not have been legally enjoined
by any court, such an injunction would be trenching
upon the freedom expression of the workers, even if it
legally appears to be illegal picketing or strike.   The
20
respondent Court of Industrial Relations in the case at
bar concedes that the mass demonstration was not a
declaration of a strike "as the same not rooted in any
industrial dispute although there is concerted act and
the occurrence of a temporary stoppage work."
(Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for
all its employees to participate in the demonstration
and that they suggested to the Union that only the first
and regular shift from 6 A.M. to 2 P.M. should report
for work in order that loss or damage to the firm will
be averted. This stand failed appreciate the sine qua
non of an effective demonstration especially by a
labor union, namely the complete unity of the Union
members as well as their total presence at the
demonstration site in order to generate the maximum
sympathy for the validity of their cause but also
immediately action on the part of the corresponding
government agencies with jurisdiction over the issues
they raised against the local police. Circulation is one
of the aspects of freedom of expression.   If 21
demonstrators are reduced by one-third, then by that
much the circulation of the issues raised by the
demonstration is diminished. The more the
participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-
third of their members will be regarded as a
substantial indication of disunity in their ranks which
will enervate their position and abet continued alleged
police persecution. At any rate, the Union notified the
company two days in advance of their projected
demonstration and the company could have made
arrangements to counteract or prevent whatever
losses it might sustain by reason of the absence of its
workers for one day, especially in this case when the
Union requested it to excuse only the day-shift
employees who will join the demonstration on March
4, 1969 which request the Union reiterated in their
telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass
demonstration (pp. 42-43, rec.). There was a lack of
human understanding or compassion on the part of
the firm in rejecting the request of the Union for
excuse from work for the day shifts in order to carry
out its mass demonstration. And to regard as a
ground for dismissal the mass demonstration held
against the Pasig police, not against the company, is
gross vindictiveness on the part of the employer,
which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair
labor practice. Because the refusal on the part of the
respondent firm to permit all its employees and
workers to join the mass demonstration against
alleged police abuses and the subsequent separation
of the eight (8) petitioners from the service constituted
an unconstitutional restraint on the freedom of
expression, freedom of assembly and freedom
petition for redress of grievances, the respondent firm
committed an unfair labor practice defined in Section
4(a-1) in relation to Section 3 of Republic Act No. 875,
otherwise known as the Industrial Peace Act. Section
3 of Republic Act No. 8 guarantees to the employees
the right "to engage in concert activities for ... mutual
aid or protection"; while Section 4(a-1) regards as an
unfair labor practice for an employer interfere with,
restrain or coerce employees in the exercise their
rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass
demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their
mutual aid and protection against alleged police
abuses, denial of which was interference with or
restraint on the right of the employees to engage in
such common action to better shield themselves
against such alleged police indignities. The insistence
on the part of the respondent firm that the workers for
the morning and regular shift should not participate in
the mass demonstration, under pain of dismissal, was
as heretofore stated, "a potent means of inhibiting
speech." 22
Such a concerted action for their mutual help and
protection deserves at least equal protection as the
concerted action of employees in giving publicity to a
letter complaint charging bank president with
immorality, nepotism, favoritism an discrimination in
the appointment and promotion of ban
employees.   We further ruled in the Republic Savings
23
Bank case, supra, that for the employees to come
within the protective mantle of Section 3 in relation to
Section 4(a-1) on Republic Act No. 875, "it is not
necessary that union activity be involved or that
collective bargaining be contemplated," as long as the
concerted activity is for the furtherance of their
interests. 
24
As stated clearly in the stipulation of facts embodied
in the questioned order of respondent Court dated
September 15, 1969, the company, "while expressly
acknowledging, that the demonstration is an
inalienable right of the Union guaranteed by the
Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly
prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers
who belong to the first and regular shifts, who without
previous leave of absence approved by the Company,
particularly the officers present who are the
organizers of the demonstration, who shall fail to
report for work the following morning (March 4, 1969)
shall be dismissed, because such failure is a violation
of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's
brief). Such threat of dismissal tended to coerce the
employees from joining the mass demonstration.
However, the issues that the employees raised
against the local police, were more important to them
because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The
most that could happen to them was to lose a day's
wage by reason of their absence from work on the
day of the demonstration. One day's pay means much
to a laborer, more especially if he has a family to
support. Yet, they were willing to forego their one-day
salary hoping that their demonstration would bring
about the desired relief from police abuses. But
management was adamant in refusing to recognize
the superior legitimacy of their right of free speech,
free assembly and the right to petition for redress.
Because the respondent company ostensibly did not
find it necessary to demand from the workers proof of
the truth of the alleged abuses inflicted on them by
the local police, it thereby concedes that the evidence
of such abuses should properly be submitted to the
corresponding authorities having jurisdiction over their
complaint and to whom such complaint may be
referred by the President of the Philippines for proper
investigation and action with a view to disciplining the
local police officers involved.
On the other hand, while the respondent Court of
Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the
complainant company," the respondent Court of
Industrial Relations did not make any finding as to the
fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm
did not sustain any loss or damage. It did not present
evidence as to whether it lost expected profits for
failure to comply with purchase orders on that day; or
that penalties were exacted from it by customers
whose orders could not be filled that day of the
demonstration; or that purchase orders were
cancelled by the customers by reason of its failure to
deliver the materials ordered; or that its own
equipment or materials or products were damaged
due to absence of its workers on March 4, 1969. On
the contrary, the company saved a sizable amount in
the form of wages for its hundreds of workers, cost of
fuel, water and electric consumption that day. Such
savings could have amply compensated for
unrealized profits or damages it might have sustained
by reason of the absence of its workers for only one
day.
IV
Apart from violating the constitutional guarantees of
free speech and assembly as well as the right to
petition for redress of grievances of the employees,
the dismissal of the eight (8) leaders of the workers
for proceeding with the demonstration and
consequently being absent from work, constitutes a
denial of social justice likewise assured by the
fundamental law to these lowly employees. Section 5
of Article II of the Constitution imposes upon the State
"the promotion of social justice to insure the well-
being and economic security of all of the people,"
which guarantee is emphasized by the other directive
in Section 6 of Article XIV of the Constitution that "the
State shall afford protection to labor ...". Respondent
Court of Industrial Relations as an agency of the State
is under obligation at all times to give meaning and
substance to these constitutional guarantees in favor
of the working man; for otherwise these constitutional
safeguards would be merely a lot of "meaningless
constitutional patter." Under the Industrial Peace Act,
the Court of Industrial Relations is enjoined to effect
the policy of the law "to eliminate the causes of
industrial unrest by encouraging and protecting the
exercise by employees of their right to self-
organization for the purpose of collective bargaining
and for the promotion of their moral, social and
economic well-being." It is most unfortunate in the
case at bar that respondent Court of Industrial
Relations, the very governmental agency designed
therefor, failed to implement this policy and failed to
keep faith with its avowed mission — its raison
d'etre — as ordained and directed by the Constitution.
V
It has been likewise established that a violation of a
constitutional right divests the court of jurisdiction; and
as a consequence its judgment is null and void and
confers no rights. Relief from a criminal conviction
secured at the sacrifice of constitutional liberties, may
be obtained through habeas corpus proceedings even
long after the finality of the judgment. Thus, habeas
corpus is the remedy to obtain the release of an
individual, who is convicted by final judgment through
a forced confession, which violated his constitutional
right against self-incrimination;   or who is denied the
25
right to present evidence in his defense as a
deprivation of his liberty without due process of
law,   even after the accused has already served
26
sentence for twenty-two years.  27
Both the respondents Court of Industrial Relations
and private firm trenched upon these constitutional
immunities of petitioners. Both failed to accord
preference to such rights and aggravated the
inhumanity to which the aggrieved workers claimed
they had been subjected by the municipal police.
Having violated these basic human rights of the
laborers, the Court of Industrial Relations ousted itself
of jurisdiction and the questioned orders it issued in
the instant case are a nullity. Recognition and
protection of such freedoms are imperative on all
public offices including the courts   as well as private
28
citizens and corporations, the exercise and enjoyment
of which must not be nullified by mere procedural rule
promulgated by the Court Industrial Relations
exercising a purely delegate legislative power, when
even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights.
There is no time limit to the exercise of the freedoms.
The right to enjoy them is not exhausted by the
delivery of one speech, the printing of one article or
the staging of one demonstration. It is a continuing
immunity to be invoked and exercised when exigent
and expedient whenever there are errors to be
rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of
Rights would be vitiated by rule on procedure
prescribing the period for appeal. The battle then
would be reduced to a race for time. And in such a
contest between an employer and its laborer, the
latter eventually loses because he cannot employ the
best an dedicated counsel who can defend his
interest with the required diligence and zeal, bereft as
he is of the financial resources with which to pay for
competent legal services.  -a
28
VI
The Court of Industrial Relations rule prescribes that
motion for reconsideration of its order or writ should
filed within five (5) days from notice thereof and that
the arguments in support of said motion shall be filed
within ten (10) days from the date of filing of such
motion for reconsideration (Sec. 16). As above
intimated, these rules of procedure were promulgated
by the Court of Industrial Relations pursuant to a
legislative delegation. 
29
The motion for reconsideration was filed on
September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September
15, 1969 or two (2) days late. Petitioners claim that
they could have filed it on September 28, 1969, but it
was a Sunday.
Does the mere fact that the motion for reconsideration
was filed two (2) days late defeat the rights of the
petitioning employees? Or more directly and
concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural
rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated
pursuant to a legislative delegation, prevail over
constitutional rights? The answer should be obvious
in the light of the aforecited cases. To accord
supremacy to the foregoing rules of the Court of
Industrial Relations over basic human rights sheltered
by the Constitution, is not only incompatible with the
basic tenet of constitutional government that the
Constitution is superior to any statute or subordinate
rules and regulations, but also does violence to
natural reason and logic. The dominance and
superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule
of necessity should be affirmed. Such a Court of
Industrial Relations rule as applied in this case does
not implement or reinforce or strengthen the
constitutional rights affected,' but instead constrict the
same to the point of nullifying the enjoyment thereof
by the petitioning employees. Said Court of Industrial
Relations rule, promulgated as it was pursuant to a
mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days
within which to file a motion for reconsideration is too
short, especially for the aggrieved workers, who
usually do not have the ready funds to meet the
necessary expenses therefor. In case of the Court of
Appeals and the Supreme Court, a period of fifteen
(15) days has been fixed for the filing of the motion for
re hearing or reconsideration (See. 10, Rule 51; Sec.
1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court).
The delay in the filing of the motion for
reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact
accentuates the unreasonableness of the Court of
Industrial are concerned.
It should be stressed here that the motion for
reconsideration dated September 27, 1969, is based
on the ground that the order sought to be
reconsidered "is not in accordance with law, evidence
and facts adduced during the hearing," and likewise
prays for an extension of ten (10) days within which to
file arguments pursuant to Sections 15, 16 and 17 of
the Rules of the Court of Industrial Relations (Annex
"G", pp. 57-60, rec.); although the arguments were
actually filed by the herein petitioners on October 14,
1969 (Annex "I", pp. 70-73, rec.), long after the 10-
day period required for the filing of such supporting
arguments counted from the filing of the motion for
reconsideration. Herein petitioners received only on
October 28, 1969 the resolution dated October 9,
1969 dismissing the motion for reconsideration for
being pro forma since it was filed beyond the
reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a
motion to reconsider is filed out of time, or where the
arguments in suppf such motion are filed beyond the
10 day reglementary period provided for by the Court
of Industrial Relations rules, the order or decision
subject of -a reconsideration becomes final and
29
unappealable. But in all these cases, the
constitutional rights of free expression, free assembly
and petition were not involved.
It is a procedural rule that generally all causes of
action and defenses presently available must be
specifically raised in the complaint or answer; so that
any cause of action or defense not raised in such
pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for
the first time on appeal, if it appears that the
determination of the constitutional issue is necessary
to a decision of the case, the very lis mota of the case
without the resolution of which no final and complete
determination of the dispute can be made.   It is thus
30
seen that a procedural rule of Congress or of the
Supreme Court gives way to a constitutional right. In
the instant case, the procedural rule of the Court of
Industrial Relations, a creature of Congress, must
likewise yield to the constitutional rights invoked by
herein petitioners even before the institution of the
unfair labor practice charged against them and in their
defense to the said charge.
In the case at bar, enforcement of the basic human
freedoms sheltered no less by the organic law, is a
most compelling reason to deny application of a Court
of Industrial Relations rule which impinges on such
human rights.  -a
30
It is an accepted principle that the Supreme Court has
the inherent power to "suspend its own rules or to
except a particular case from its operation, whenever
the purposes of justice require."  -b Mr. Justice
30
Barredo in his concurring opinion in Estrada vs. Sto.
Domingo.  -c reiterated this principle and added that
30
Under this authority, this Court is
enabled to cove with all situations
without concerning itself about
procedural niceties that do not square
with the need to do justice, in any
case, without further loss of time,
provided that the right of the parties to
a full day in court is not substantially
impaired. Thus, this Court may treat
an appeal as a certiorari and vice-
versa. In other words, when all the
material facts are spread in the
records before Us, and all the parties
have been duly heard, it matters little
that the error of the court a quo is of
judgment or of jurisdiction. We can
then and there render the appropriate
judgment. Is within the contemplation
of this doctrine that as it is perfectly
legal and within the power of this
Court to strike down in an appeal acts
without or in excess of jurisdiction or
committed with grave abuse of
discretion, it cannot be beyond the
admit of its authority, in appropriate
cases, to reverse in a certain proceed
in any error of judgment of a court a
quo which cannot be exactly
categorized as a flaw of jurisdiction. If
there can be any doubt, which I do not
entertain, on whether or not the errors
this Court has found in the decision of
the Court of Appeals are short of
being jurisdiction nullities or excesses,
this Court would still be on firm legal
grounds should it choose to reverse
said decision here and now even if
such errors can be considered as
mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so
as to avoid the unnecessary return of
this case to the lower court for the sole
purpose of pursuing the ordinary
course of an appeal. (Emphasis
supplied).  -d
30
Insistence on the application of the questioned Court
industrial Relations rule in this particular case at bar
would an unreasoning adherence to "Procedural
niceties" which denies justice to the herein laborers,
whose basic human freedoms, including the right to
survive, must be according supremacy over the
property rights of their employer firm which has been
given a full hearing on this case, especially when, as
in the case at bar, no actual material damage has be
demonstrated as having been inflicted on its property
rights.
If We can disregard our own rules when justice
requires it, obedience to the Constitution renders
more imperative the suspension of a Court of
Industrial Relations rule that clash with the human
rights sanctioned and shielded with resolution
concern by the specific guarantees outlined in the
organic law. It should be stressed that the application
in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein
respondent firm is unreasonable and therefore such
application becomes unconstitutional as it subverts
the human rights of petitioning labor union and
workers in the light of the peculiar facts and
circumstances revealed by the record.
The suspension of the application of Section 15 of the
Court of Industrial Relations rules with reference to
the case at is also authorized by Section 20 of
Commonwealth Act No. 103, the C.I.R. charter, which
enjoins the Court of Industrial Relations to "act
according to justice and equity and substantial merits
of the case, without regard to technicalities or legal
forms ..."
On several occasions, We emphasized this doctrine
which was re-stated by Mr. Justice Barredo, speaking
for the Court, in the 1970 case of Kapisanan, etc. vs.
Hamilton, etc., et. al.,  -e thus:
30
As to the point that the evidence being
offered by the petitioners in the motion
for new trial is not "newly discovered,"
as such term is understood in the
rules of procedure for the ordinary
courts, We hold that such criterion is
not binding upon the Court of
Industrial Relations. Under Section 20
of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall
adopt its, rules or procedure and shall
have such other powers as generally
 pertain to a court of justice: Provided,
however, That in the hearing,
investigation and determination of any
question or controversy and in
exercising any duties and power under
this Act, the Court shall act according
to justice and equity and substantial
merits of the case, without regard to
technicalities or legal forms and shall
not be bound by any technical rules of
legal evidence but may inform its mind
in such manner as it may deem just
and equitable.' By this provision the
industrial court is disengaged from the
rigidity of the technicalities applicable
to ordinary courts. Said court is not
even restricted to the specific relief
demanded by the parties but may
issue such orders as may be deemed
necessary or expedient for the
purpose of settling the dispute or
dispelling any doubts that may give
rise to future disputes. (Ang Tibay v.
C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil.
Labor, 71 Phil. 124.) For these
reasons, We believe that this provision
is ample enough to have enabled the
respondent court to consider whether
or not its previous ruling that
petitioners constitute a minority was
founded on fact, without regard to the
technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16
Phil. 315; Chua Kiong v. Whitaker, 46
Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial
Relations rules with "pedantic rigor" in the instant
case is to rule in effect that the poor workers, who can
ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to
them by the fundamental law, simply because their
counsel — erroneously believing that he received a
copy of the decision on September 23, 1969, instead
of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which
practically is only one day late considering that
September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure
technicalities when they ceased to be instruments of
justice, for the attainment of which such rules have
been devised. Summarizing the jurisprudence on this
score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta,  -f Stated:
30
As was so aptly expressed by Justice
Moreland in Alonso v. Villamor (16
Phil. 315 [1910]. The Villamor decision
was cited with approval in Register of
Deeds v. Phil. Nat. Bank, 84 Phil. 600
[1949]; Potenciano v. Court of
Appeals, 104 Phil. 156 [1958] and Uy
v. Uy, 14243, June 30, 1961, 2 SCRA
675.), decided as far back as 1910,
"technicality. when it deserts its
proper-office as an aid to justice and
becomes its great hindrance and chief
enemy, deserves scant consideration
from courts." (Ibid., p, 322.) To that
norm, this Court has remained
committed. The late Justice Recto in
Blanco v. Bernabe, (63 Phil. 124
[1936]) was of a similar mind. For him
the interpretation of procedural rule
should never "sacrifice the ends
justice." While "procedural laws are no
other than technicalities" view them in
their entirety, 'they were adopted not
as ends themselves for the
compliance with which courts have
organized and function, but as means
conducive to the realization the
administration of the law and of justice
(Ibid., p.,128). We have remained
steadfastly opposed, in the highly
rhetorical language Justice Felix, to "a
sacrifice of substantial rights of a
litigant in altar of sophisticated
technicalities with impairment of the
sacred principles of justice."
(Potenciano v. Court of Appeals, 104
Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should
give way to the realities of the
situation." (Urbayan v. Caltex, L-
15379, Aug. 31, 1962, 5 SCRA 1016,
1019). In the latest decision in point
promulgated in 1968, (Udan v. Amon,
(1968, 23 SCRA citing McEntee v.
Manotok, L-14968, Oct. 27, 1961, 3
SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of
Justice Labrador that rules of
procedure "are not to be applied in a
very rigid, technical sense"; but are
intended "to help secure substantial
justice." (Ibid., p. 843) ...  -g
30
Even if the questioned Court of Industrial Relations
orders and rule were to be given effect, the dismissal
or termination of the employment of the petitioning
eight (8) leaders of the Union is harsh for a one-day
absence from work. The respondent Court itself
recognized the severity of such a sanction when it did
not include the dismissal of the other 393 employees
who are members of the same Union and who
participated in the demonstration against the Pasig
police. As a matter of fact, upon the intercession of
the Secretary of Labor, the Union members who are
not officers, were not dismissed and only the Union
itself and its thirteen (13) officers were specifically
named as respondents in the unfair labor practice
charge filed against them by the firm (pp. 16-20,
respondent's Brief; Annexes "A", "B" and "C", pp. 20-
30, rec.). Counsel for respondent firm insinuates that
not all the 400 or so employee participated in the
demonstration, for which reason only the Union and
its thirteen (13) officers were specifically named in the
unfair labor practice charge (p. 20, respondent's
brief). If that were so, then many, if not all, of the
morning and regular shifts reported for work on March
4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain
any damage.
The appropriate penalty — if it deserves any penalty
at all — should have been simply to charge said one-
day absence against their vacation or sick leave. But
to dismiss the eight (8) leaders of the petitioner Union
is a most cruel penalty, since as aforestated the
Union leaders depend on their wages for their daily
sustenance as well as that of their respective families
aside from the fact that it is a lethal blow to unionism,
while at the same time strengthening the oppressive
hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes
frequently not from those who
consciously seek to destroy our
system of Government, but from men
of goodwill — good men who allow
their proper concerns to blind them to
the fact that what they propose to
accomplish involves an impairment of
liberty.
... The Motives of these men are often
commendable. What we must
remember, however, is
that preservation of liberties does not
depend on motives. A suppression of
liberty has the same effect whether
the suppress or be a reformer or an
outlaw. The only protection against
misguided zeal is a constant alertness
of the infractions of the guarantees of
liberty contained in our
Constitution. Each surrender of liberty
to the demands of the moment makes
easier another, larger surrender. The
battle over the Bill of Rights is a never
ending one.
... The liberties of any person are the
liberties of all of us.
... In short, the Liberties of none are
safe unless the liberties of all are
protected.
... But even if we should sense no
danger to our own liberties, even if we
feel secure because we belong to a
group that is important and respected,
we must recognize that our Bill of
Rights is a code of fair play for the
less fortunate that we in all honor and
good conscience must be observe.  31
The case at bar is worse.
Management has shown not only lack of good-will or
good intention, but a complete lack of sympathetic
understanding of the plight of its laborers who claim
that they are being subjected to indignities by the
local police, It was more expedient for the firm to
conserve its income or profits than to assist its
employees in their fight for their freedoms and
security against alleged petty tyrannies of local police
officers. This is sheer opportunism. Such opportunism
and expediency resorted to by the respondent
company assaulted the immunities and welfare of its
employees. It was pure and implement selfishness, if
not greed.
Of happy relevance is the 1967 case of Republic
Savings Bank vs. C.I.R.,   where the petitioner Bank
32
dismissed eight (8) employees for having written and
published "a patently libelous letter ... to the Bank
president demanding his resignation on the grounds
of immorality, nepotism in the appointment and
favoritism as well as discrimination in the promotion of
bank employees." Therein, thru Mr. Justice Castro,
We ruled:
It will avail the Bank none to gloat over
this admission of the respondents.
Assuming that the latter acted in their
individual capacities when they wrote
the letter-charge they were
nonetheless protected for they were
engaged in concerted activity, in the
exercise of their right of self
organization that includes concerted
activity for mutual aid and protection,
(Section 3 of the Industrial Peace
Act ...) This is the view of some
members of this Court. For, as has
been aptly stated, the joining in
protests or demands, even by a small
group of employees, if in furtherance
 of their interests as such, is a
concerted activity protected by the
Industrial Peace Act. It is not
necessary that union activity be
involved or that collective bargaining
be contemplated. (Annot., 6 A.L.R. 2d
416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank
should have allowed the respondents
to air their grievances.
xxx xxx xxx
The Bank defends its action by
invoking its right to discipline for what
it calls the respondents' libel in giving
undue publicity to their letter-charge.
To be sure, the right of self-
organization of employees is not
unlimited (Republic Aviation Corp. vs.
NLRB 324 U.S. 793 [1945]), as the
right of the employer to discharge for
cause (Philippine Education Co. v.
Union of Phil. Educ. Employees, L-
13773, April 29, 1960) is undenied.
The Industrial Peace Act does not
touch the normal exercise of the right
of the employer to select his
employees or to discharge them. It is
directed solely against the abuse of
that right by interfering with the
countervailing right of self organization
(Phelps Dodge Corp. v. NLRB 313
U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this
Court is in unanimity that the Bank's
conduct, identified as an interference
with the employees' right of self-
organization or as a retaliatory
action, and/or as a refusal to bargain
collectively, constituted an unfair labor
practice within the meaning and
intendment of section 4(a) of the
Industrial Peace Act. (Emphasis
supplied.) 33
If free expression was accorded recognition and
protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed
the morality and integrity of the bank president no
less, such recognition and protection for free speech,
free assembly and right to petition are rendered all the
more justifiable and more imperative in the case at
bar, where the mass demonstration was not against
the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the
respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and
(2) directing the re instatement of the herein eight (8)
petitioners, with full back pay from the date of their
separation from the service until re instated, minus
one day's pay and whatever earnings they might have
realized from other sources during their separation
from the service.
With costs against private respondent Philippine
Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.
6) Ermita-Malate Hotel and Motel Operators Association,
Inc. vs. City of Manila (G.R. No. L-24693, July 31, 1967)
FERNANDO, J.:
The principal question in this appeal from a judgment
of the lower court in an action for prohibition is
whether Ordinance No. 4760 of the City of Manila is
violative of the due process clause. The lower court
held that it is and adjudged it "unconstitutional, and,
therefore, null and void." For reasons to be more
specifically set forth, such judgment must be
reversed, there being a failure of the requisite
showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No.
4760 was filed on July 5, 1963 by the petitioners,
Ermita-Malate Hotel and Motel Operators Association,
one of its members, Hotel del Mar Inc., and a certain
Go Chiu, who is "the president and general manager
of the second petitioner" against the respondent
Mayor of the City of Manila who was sued in his
capacity as such "charged with the general power and
duty to enforce ordinances of the City of Manila and to
give the necessary orders for the faithful execution
and enforcement of such ordinances." (par. 1). It was
alleged that the petitioner non-stock corporation is
dedicated to the promotion and protection of the
interest of its eighteen (18) members "operating
hotels and motels, characterized as legitimate
businesses duly licensed by both national and city
authorities, regularly paying taxes, employing and
giving livelihood to not less than 2,500 person and
representing an investment of more than P3
million."1 (par. 2). It was then alleged that on June 13,
1963, the Municipal Board of the City of Manila
enacted Ordinance No. 4760, approved on June 14,
1963 by the then Vice-Mayor Herminio Astorga, who
was at the time acting as Mayor of the City of Manila.
(par. 3).
After which the alleged grievances against the
ordinance were set forth in detail. There was the
assertion of its being beyond the powers of the
Municipal Board of the City of Manila to enact insofar
as it would regulate motels, on the ground that in the
revised charter of the City of Manila or in any other
law, no reference is made to motels; that Section 1 of
the challenged ordinance is unconstitutional and void
for being unreasonable and violative of due process
insofar as it would impose P6,000.00 fee per annum
for first class motels and P4,500.00 for second class
motels; that the provision in the same section which
would require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or lodging
house to refrain from entertaining or accepting any
guest or customer or letting any room or other quarter
to any person or persons without his filling up the
prescribed form in a lobby open to public view at all
times and in his presence, wherein the surname,
given name and middle name, the date of birth, the
address, the occupation, the sex, the nationality, the
length of stay and the number of companions in the
room, if any, with the name, relationship, age and sex
would be specified, with data furnished as to his
residence certificate as well as his passport number, if
any, coupled with a certification that a person signing
such form has personally filled it up and affixed his
signature in the presence of such owner, manager,
keeper or duly authorized representative, with such
registration forms and records kept and bound
together, it also being provided that the premises and
facilities of such hotels, motels and lodging houses
would be open for inspection either by the City Mayor,
or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on
due process grounds, not only for being arbitrary,
unreasonable or oppressive but also for being vague,
indefinite and uncertain, and likewise for the alleged
invasion of the right to privacy and the guaranty
against self-incrimination; that Section 2 of the
challenged ordinance classifying motels into two
classes and requiring the maintenance of certain
minimum facilities in first class motels such as a
telephone in each room, a dining room or, restaurant
and laundry similarly offends against the due process
clause for being arbitrary, unreasonable and
oppressive, a conclusion which applies to the portion
of the ordinance requiring second class motels to
have a dining room; that the provision of Section 2 of
the challenged ordinance prohibiting a person less
than 18 years old from being accepted in such hotels,
motels, lodging houses, tavern or common inn unless
accompanied by parents or a lawful guardian and
making it unlawful for the owner, manager, keeper or
duly authorized representative of such establishments
to lease any room or portion thereof more than twice
every 24 hours, runs counter to the due process
guaranty for lack of certainty and for its unreasonable,
arbitrary and oppressive character; and that insofar as
the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause
the automatic cancellation of the license of the
offended party, in effect causing the destruction of the
business and loss of its investments, there is once
again a transgression of the due process clause.
There was a plea for the issuance of preliminary
injunction and for a final judgment declaring the above
ordinance null and void and unenforceable. The lower
court on July 6, 1963 issued a writ of preliminary
injunction ordering respondent Mayor to refrain from
enforcing said Ordinance No. 4760 from and after
July 8, 1963.
In the a answer filed on August 3, 1963, there was an
admission of the personal circumstances regarding
the respondent Mayor and of the fact that petitioners
are licensed to engage in the hotel or motel business
in the City of Manila, of the provisions of the cited
Ordinance but a denial of its alleged nullity, whether
on statutory or constitutional grounds. After setting
forth that the petition did fail to state a cause of action
and that the challenged ordinance bears a reasonable
relation, to a proper purpose, which is to curb
immorality, a valid and proper exercise of the police
power and that only the guests or customers not
before the court could complain of the alleged
invasion of the right to privacy and the guaranty
against self incrimination, with the assertion that the
issuance of the preliminary injunction ex parte was
contrary to law, respondent Mayor prayed for, its
dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties,
there was submitted a stipulation of facts dated
September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel
and Motel Operators Association, Inc. and
Hotel del Mar Inc. are duly organized and
existing under the laws of the Philippines,
both with offices in the City of Manila, while
the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and
the intervenor Victor Alabanza is a resident of
Baguio City, all having the capacity to sue and
be sued;
 2. That the respondent Mayor is the duly
elected and incumbent City Mayor and chief
executive of the City of Manila charged with
the general power and duty to enforce
ordinances of the City of Manila and to give
the necessary orders for the faithful execution
and enforcement of such ordinances;
3. That the petitioners are duly licensed to
engage in the business of operating hotels
and motels in Malate and Ermita districts in
Manila;
4. That on June 13, 1963, the Municipal Board
of the City of Manila enacted Ordinance No.
4760, which was approved on June 14, 1963,
by Vice-Mayor Herminio Astorga, then the
acting City Mayor of Manila, in the absence of
the respondent regular City Mayor, amending
sections 661, 662, 668-a, 668-b and 669 of
the compilation of the ordinances of the City of
Manila besides inserting therein three new
sections. This ordinance is similar to the one
vetoed by the respondent Mayor (Annex A) for
the reasons stated in its 4th Indorsement
dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then
Councilor Herminio Astorga was submitted
with the proposed ordinance (now Ordinance
4760) to the Municipal Board, copy of which is
attached hereto as Annex C;
6. That the City of Manila derived in 1963 an
annual income of P101,904.05 from license
fees paid by the 105 hotels and motels
(including herein petitioners) operating in the
City of Manila.
1äwphï1.ñët
Thereafter came a memorandum for respondent on
January 22, 1965, wherein stress was laid on the
presumption of the validity of the challenged
ordinance, the burden of showing its lack of
conformity to the Constitution resting on the party who
assails it, citing not only U.S. v. Salaveria, but likewise
applicable American authorities. Such a
memorandum likewise refuted point by point the
arguments advanced by petitioners against its validity.
Then barely two weeks later, on February 4, 1965, the
memorandum for petitioners was filed reiterating in
detail what was set forth in the petition, with citations
of what they considered to be applicable American
authorities and praying for a judgment declaring the
challenged ordinance "null and void and
unenforceable" and making permanent the writ of
preliminary injunction issued.
After referring to the motels and hotels, which are
members of the petitioners association, and referring
to the alleged constitutional questions raised by the
party, the lower court observed: "The only remaining
issue here being purely a question of law, the parties,
with the nod of the Court, agreed to file memoranda
and thereafter, to submit the case for decision of the
Court." It does appear obvious then that without any
evidence submitted by the parties, the decision
passed upon the alleged infirmity on constitutional
grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection
on the alleged lack of authority of the City of Manila to
regulate motels, and came to the conclusion that "the
challenged Ordinance No. 4760 of the City of Manila,
would be unconstitutional and, therefore, null and
void." It made permanent the preliminary injunction
issued against respondent Mayor and his agents "to
restrain him from enforcing the ordinance in question."
Hence this appeal.
As noted at the outset, the judgment must be
reversed. A decent regard for constitutional doctrines
of a fundamental character ought to have admonished
the lower court against such a sweeping
condemnation of the challenged ordinance. Its
decision cannot be allowed to stand, consistently with
what has hitherto been the accepted standards of
constitutional adjudication, in both procedural and
substantive aspects.
Primarily what calls for a reversal of such a decision is
the absence of any evidence to offset the
presumption of validity that attaches to a challenged
statute or ordinance. As was expressed categorically
by Justice Malcolm: "The presumption is all in favor of
validity x x x . The action of the elected
representatives of the people cannot be lightly set
aside. The councilors must, in the very nature of
things, be familiar with the necessities of their
particular municipality and with all the facts and
circumstances which surround the subject and
necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that
the regulations are essential to the well being of the
people x x x . The Judiciary should not lightly set
aside legislative action when there is not a clear
invasion of personal or property rights under the guise
of police regulation.2
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.,3 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
resumption 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.
Nor may petitioners assert with plausibility that on its
face the ordinance is fatally defective as being
repugnant to the due process clause of the
Constitution. The mantle of protection associated with
the due process guaranty does not cover petitioners.
This particular manifestation of a police power
measure being specifically aimed to safeguard public
morals is immune from such imputation of nullity
resting purely on conjecture and unsupported by
anything of substance. 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,4 extending as it does "to all the great public
needs."5 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 genera
welfare.6 Negatively put, police power is "that inherent
and plenary power in the State which enables it to
prohibit all that is hurt full to the comfort, safety, and
welfare of society.7
There is no question but that the challenged
ordinance was precisely enacted to minimize certain
practices hurtful to public morals. The explanatory
note of the Councilor Herminio Astorga included as
annex to the stipulation of facts, speaks of the
alarming increase in the rate of prostitution, adultery
and fornication in Manila traceable in great part to the
existence of motels, which "provide a necessary
atmosphere for clandestine entry, presence and exit"
and thus become the "ideal haven for prostitutes and
thrill-seekers." The challenged ordinance then
proposes to check the clandestine harboring of
transients and guests of these establishments by
requiring these transients and guests to fill up a
registration form, prepared for the purpose, in a lobby
open to public view at all times, and by introducing
several other amendatory provisions calculated to
shatter the privacy that characterizes the registration
of transients and guests." Moreover, the increase in
the licensed fees was intended to discourage
"establishments of the kind from operating for purpose
other than legal" and at the same time, to increase
"the income of the city government." It would appear
therefore that the stipulation of facts, far from
sustaining any attack against the validity of the
ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably
stamped with the seal of its approval, ordinances
punishing vagrancy and classifying a pimp or procurer
as a vagrant;8 provide a license tax for and regulating
the maintenance or operation of public dance
halls;9 prohibiting gambling;10 prohibiting jueteng;11 and
monte;12 prohibiting playing of panguingui on days
other than Sundays or legal holidays;13 prohibiting the
operation of pinball machines;14 and prohibiting any
person from keeping, conducting or maintaining an
opium joint or visiting a place where opium is smoked
or otherwise used,15 all of which are intended to
protect public morals.
On the legislative organs of the government, whether
national or local, primarily rest the exercise of the
police power, which, it cannot be too often
emphasized, is the power to prescribe regulations to
promote the health, morals, peace, good order, safety
and general welfare of the people. In view of the
requirements of due process, equal protection and
other applicable constitutional guaranties however,
the exercise of such police power insofar as it may
affect the life, liberty or property of any person is
subject to judicial inquiry. Where such exercise of
police power may be considered as either capricious,
whimsical, unjust or unreasonable, a denial of due
process or a violation of any other applicable
constitutional guaranty may call for correction by the
courts.
We are thus led to considering the insistent, almost
shrill tone, in which the objection is raised to the
question of due process.16 There is no controlling and
precise definition of due process. It furnishes though a
standard to which the governmental action should
conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. What
then is the standard of due process which must exist
both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal
infirmity sufficient to spell its doom? It is
responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is
thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as
freedom from arbitrariness. It is the embodiment of
the sporting idea of fair play.17 It exacts fealty "to those
strivings for justice" and judges the act of officialdom
of whatever branch "in the light of reason drawn from
considerations of fairness that reflect [democratic]
traditions of legal and political thought."18 It is not a
narrow or "technical conception with fixed content
unrelated to time, place and
circumstances,"19 decisions based on such a clause
requiring a "close and perceptive inquiry into
fundamental principles of our society."20 Questions of
due process are not to be treated narrowly or
pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an
ordinance enacted precisely to meet what a municipal
lawmaking body considers an evil of rather serious
proportion an arbitrary and capricious exercise of
authority. It would seem that what should be deemed
unreasonable and what would amount to an
abdication of the power to govern is inaction in the
face of an admitted deterioration of the state of public
morals. To be more specific, the Municipal Board of
the City of Manila felt the need for a remedial
measure. It provided it with the enactment of the
challenged ordinance. A strong case must be found in
the records, and, as has been set forth, none is even
attempted here to attach to an ordinance of such
character the taint of nullity for an alleged failure to
meet the due process requirement. Nor does it lend
any semblance even of deceptive plausibility to
petitioners' indictment of Ordinance No. 4760 on due
process grounds to single out such features as the
increased fees for motels and hotels, the curtailment
of the area of freedom to contract, and, in certain
particulars, its alleged vagueness.
Admittedly there was a decided increase of the
annual license fees provided for by the challenged
ordinance for hotels and motels, 150% for the former
and over 200% for the latter, first-class motels being
required to pay a P6,000 annual fee and second-class
motels, P4,500 yearly. It has been the settled law
however, as far back as 1922 that municipal license
fees could be classified into those imposed for
regulating occupations or regular enterprises, for the
regulation or restriction of non-useful occupations or
enterprises and for revenue purposes only.22 As was
explained more in detail in the above Cu Unjieng
case: (2) Licenses for non-useful occupations are also
incidental to the police power and the right to exact a
fee may be implied from the power to license and
regulate, but in fixing amount of the license fees the
municipal corporations are allowed a much wider
discretion in this class of cases than in the former,
and aside from applying the well-known legal principle
that municipal ordinances must not be unreasonable,
oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The
desirability of imposing restraint upon the number of
persons who might otherwise engage in non-useful
enterprises is, of course, generally an important factor
in the determination of the amount of this kind of
license fee. Hence license fees clearly in the nature of
privilege taxes for revenue have frequently been
upheld, especially in of licenses for the sale of liquors.
In fact, in the latter cases the fees have rarely been
declared unreasonable.23
Moreover in the equally leading case of Lutz v.
Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court that
taxation may be made to implement the state's police
power. Only the other day, this Court had occasion to
affirm that the broad taxing authority conferred by the
Local Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a wide
range of subjects with the only limitation that the tax
so levied is for public purposes, just and uniform. 25
As a matter of fact, even without reference to the wide
latitude enjoyed by the City of Manila in imposing
licenses for revenue, it has been explicitly held in one
case that "much discretion is given to municipal
corporations in determining the amount," here the
license fee of the operator of a massage clinic, even if
it were viewed purely as a police power
measure.26 The discussion of this particular matter
may fitly close with this pertinent citation from another
decision of significance: "It is urged on behalf of the
plaintiffs-appellees that the enforcement of the
ordinance could deprive them of their lawful
occupation and means of livelihood because they can
not rent stalls in the public markets. But it appears
that plaintiffs are also dealers in refrigerated or cold
storage meat, the sale of which outside the city
markets under certain conditions is permitted x x x .
And surely, the mere fact, that some individuals in the
community may be deprived of their present business
or a particular mode of earning a living cannot prevent
the exercise of the police power. As was said in a
case, persons licensed to pursue occupations which
may in the public need and interest be affected by the
exercise of the police power embark in these
occupations subject to the disadvantages which may
result from the legal exercise of that power." 27
Nor does the restriction on the freedom to contract,
insofar as the challenged ordinance makes it unlawful
for the owner, manager, keeper or duly authorized
representative of any hotel, motel, lodging house,
tavern, common inn or the like, to lease or rent room
or portion thereof more than twice every 24 hours,
with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a
limitation cannot be viewed as a transgression against
the command of due process. It is neither
unreasonable nor arbitrary. Precisely it was intended
to curb the opportunity for the immoral or illegitimate
use to which such premises could be, and, according
to the explanatory note, are being devoted. How could
it then be arbitrary or oppressive when there appears
a correspondence between the undeniable existence
of an undesirable situation and the legislative attempt
at correction. Moreover, petitioners cannot be
unaware that every regulation of conduct amounts to
curtailment of liberty which as pointed out by Justice
Malcolm cannot be absolute. Thus: "One thought
which runs through all these different conceptions of
liberty is plainly apparent. It is this: 'Liberty' as
understood in democracies, is not license; it is 'liberty
regulated by law.' Implied in the term is restraint by
law for the good of the individual and for the greater
good of the peace and order of society and the
general well-being. No man can do exactly as he
pleases. Every man must renounce unbridled license.
The right of the individual is necessarily subject to
reasonable restraint by general law for the common
good x x x The liberty of the citizen may be restrained
in the interest of the public health, or of the public
order and safety, or otherwise within the proper scope
of the police power."28
A similar observation was made by Justice Laurel:
"Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to
promote the general welfare may interfere with
personal liberty, with property, and with business and
occupations. Persons and property may be subjected
to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of
the state x x x To this fundamental aim of our
Government the rights of the individual are
subordinated. Liberty is a blessing without which life is
a misery, but liberty should not be made to prevail
over authority because then society will fall into
anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into
slavery. The citizen should achieve the required
balance of liberty and authority in his mind through
education and personal discipline, so that there may
be established the resultant equilibrium, which means
peace and order and happiness for all.29
It is noteworthy that the only decision of this Court
nullifying legislation because of undue deprivation of
freedom to contract, People v. Pomar,30 no longer
"retains its virtuality as a living principle. The policy
of laissez faire has to some extent given way to the
assumption by the government of the right of
intervention even in contractual relations affected with
public interest.31 What may be stressed sufficiently is
that if the liberty involved were freedom of the mind or
the person, the standard for the validity of
governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects at the
most rights of property, the permissible scope of
regulatory measure is wider.32 How justify then the
allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance
on another due process ground by invoking the
principles of vagueness or uncertainty. It would
appear from a recital in the petition itself that what
seems to be the gravamen of the alleged grievance is
that the provisions are too detailed and specific rather
than vague or uncertain. Petitioners, however, point to
the requirement that a guest should give the name,
relationship, age and sex of the companion or
companions as indefinite and uncertain in view of the
necessity for determining whether the companion or
companions referred to are those arriving with the
customer or guest at the time of the registry or
entering the room With him at about the same time or
coming at any indefinite time later to join him; a
proviso in one of its sections which cast doubt as to
whether the maintenance of a restaurant in a motel is
dependent upon the discretion of its owners or
operators; another proviso which from their standpoint
would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof
means a full day's or merely a half-day's rate. It may
be asked, do these allegations suffice to render the
ordinance void on its face for alleged vagueness or
uncertainty? To ask the question is to answer it.
From Connally v. General Construction
Co.33 to Adderley v. Florida,34 the principle has been
consistently upheld that what makes a statute
susceptible to such a charge is an enactment either
forbidding or requiring the doing of an act that men of
common intelligence must necessarily guess at its
meaning and differ as to its application. Is this the
situation before us? A citation from Justice Holmes
would prove illuminating: "We agree to all the
generalities about not supplying criminal laws with
what they omit but there is no canon against using
common sense in construing laws as saying what
they obviously mean."35
That is all then that this case presents. As it stands,
with all due allowance for the arguments pressed with
such vigor and determination, the attack against the
validity of the challenged ordinance cannot be
considered a success. Far from it. Respect for
constitutional law principles so uniformly held and so
uninterruptedly adhered to by this Court compels a
reversal of the appealed decision.
Wherefore, the judgment of the lower court is
reversed and the injunction issued lifted forthwith.
With costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar,
Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.

Accountability
7) People vs. Marti (G.R. No. 81561, January 18, 1991)
BIDIN, J.:
This is an appeal from a decision * rendered by the
Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to
Section 4, Article 11 and Section 2 (e) (i), Article 1 of
Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act.
The facts as summarized in the brief of the
prosecution are as follows:
On August 14, 1987, between 10:00 and
11:00 a.m., the appellant and his common-law
wife, Shirley Reyes, went to the booth of the
"Manila Packing and Export Forwarders" in
the Pistang Pilipino Complex, Ermita, Manila,
carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and
no relation to Shirley Reyes) attended to
them. The appellant informed Anita Reyes
that he was sending the packages to a friend
in Zurich, Switzerland. Appellant filled up the
contract necessary for the transaction, writing
therein his name, passport number, the date
of shipment and the name and address of the
consignee, namely, "WALTER FIERZ,
Mattacketr II, 8052 Zurich, Switzerland"
(Decision, p. 6)
Anita Reyes then asked the appellant if she
could examine and inspect the packages.
Appellant, however, refused, assuring her that
the packages simply contained books, cigars,
and gloves and were gifts to his friend in
Zurich. In view of appellant's representation,
Anita Reyes no longer insisted on inspecting
the packages. The four (4) packages were
then placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-foam
was placed at the bottom and on top of the
packages before the box was sealed with
masking tape, thus making the box ready for
shipment (Decision, p. 8).
Before delivery of appellant's box to the
Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and
husband of Anita (Reyes), following standard
operating procedure, opened the boxes for
final inspection. When he opened appellant's
box, a peculiar odor emitted therefrom. His
curiousity aroused, he squeezed one of the
bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the
gloves. He made an opening on one of the
cellophane wrappers and took several grams
of the contents thereof (tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter
reporting the shipment to the NBI and
requesting a laboratory examination of the
samples he extracted from the cellophane
wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of
appellant's shipment to the Narcotics Section
of the National Bureau of Investigation (NBI),
at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section.
Job Reyes informed the NBI that the rest of
the shipment was still in his office. Therefore,
Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at
Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which
appellant's packages were placed and, in the
presence of the NBI agents, opened the top
flaps, removed the styro-foam and took out
the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to
have been contained inside the cellophane
wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
The package which allegedly contained books
was likewise opened by Job Reyes. He
discovered that the package contained bricks
or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera
cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6,
1987).
The NBI agents made an inventory and took
charge of the box and of the contents thereof,
after signing a "Receipt"
acknowledging custody of the said effects
(tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant
but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the
agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while
claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day
the Narcotics Section of the NBI submitted the dried
leaves to the Forensic Chemistry Section for
laboratory examination. It turned out that the dried
leaves were marijuana flowering tops as certified by
the forensic chemist. (Appellee's Brief, pp. 9-
11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant
for violation of RA 6425, otherwise known as the
Dangerous Drugs Act.
After trial, the court a quo rendered the assailed
decision.
In this appeal, accused/appellant assigns the
following errors, to wit:
THE LOWER COURT ERRED IN
ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS
CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN
CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS
UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED.
THE LOWER COURT ERRED IN NOT
GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON
HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1; Rollo,
p. 55)
1. Appellant contends that the evidence subject of the
imputed offense had been obtained in violation of his
constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3,
Art. III, Constitution) and therefore argues that the
same should be held inadmissible in evidence (Sec. 3
(2), Art. III).
Sections 2 and 3, Article III of the Constitution
provide:
Sec. 2. The right of the people to be secure in
their persons, houses, papers and effects
against unreasonable searches and seizures
of whatever nature and for any purpose shall
be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except
upon lawful order of the court, or when public
safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this
or the preceding section shall be inadmissible
for any purpose in any proceeding.
Our present constitutional provision on the guarantee
against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not
be violated, and no warrants shall issue but
upon probable cause, to be determined by the
judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3],
Article III)
was in turn derived almost verbatim from the Fourth
Amendment ** to the United States Constitution. As
such, the Court may turn to the pronouncements of
the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in
this jurisdiction.
Thus, following the exclusionary rule laid down
in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081
[1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure
warrant, abandoning in the process the ruling earlier
adopted in Moncado v. People's Court (80 Phil. 1
[1948]) wherein the admissibility of evidence was not
affected by the illegality of its seizure. The 1973
Charter (Sec. 4 [2], Art. IV) constitutionalized
the Stonehill ruling and is carried over up to the
present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the
exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v.
Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66
SCRA 299 [1975]; People v. Burgos, 144 SCRA 1
[1986]; Roan v. Gonzales, 145 SCRA 687
[1987]; See also Salazar v. Hon. Achacoso, et al., GR
No. 81510, March 14, 1990).
It must be noted, however, that in all those cases
adverted to, the evidence so obtained were invariably
procured by the State acting through the medium of
its law enforcers or other authorized government
agencies.
On the other hand, the case at bar assumes a
peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a
private person, acting in a private capacity and
without the intervention and participation of State
authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional
right against unreasonable searches and seizure has
been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of
governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48
SCRA 345 [1972]:
1. This constitutional right (against
unreasonable search and seizure) refers to
the immunity of one's person, whether citizen
or alien, from interference by government,
included in which is his residence, his papers,
and other possessions. . . .
. . . There the state, however powerful, does
not as such have the access except under the
circumstances above noted, for in the
traditional formulation, his house, however
humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which
is called upon to refrain from any invasion of
his dwelling and to respect the privacies of his
life. . . . (Cf. Schermerber v. California, 384
US 757 [1966] and Boyd v. United States, 116
US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct.
547; 65 L.Ed. 1048), the Court there in construing the
right against unreasonable searches and seizures
declared that:
(t)he Fourth Amendment gives protection
against unlawful searches and seizures, and
as shown in previous cases, its protection
applies to governmental action. Its origin and
history clearly show that it was intended as a
restraint upon the activities of sovereign
authority, and was not intended to be a
limitation upon other than governmental
agencies; as against such authority it was the
purpose of the Fourth Amendment to secure
the citizen in the right of unmolested
occupation of his dwelling and the possession
of his property, subject to the right of seizure
by process duly served.
The above ruling was reiterated in State v. Bryan (457
P.2d 661 [1968]) where a parking attendant who
searched the automobile to ascertain the owner
thereof found marijuana instead, without the
knowledge and participation of police authorities, was
declared admissible in prosecution for illegal
possession of narcotics.
And again in the 1969 case of Walker v. State (429
S.W.2d 121), it was held that the search and seizure
clauses are restraints upon the government and its
agents, not upon private individuals (citing People v.
Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965);
State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373
F.2d 517 (1967). The Court there said:
The search of which appellant complains,
however, was made by a private citizen — the
owner of a motel in which appellant stayed
overnight and in which he left behind a travel
case containing the evidence*** complained
of. The search was made on the motel
owner's own initiative. Because of it, he
became suspicious, called the local police,
informed them of the bag's contents, and
made it available to the authorities.
The fourth amendment and the case law
applying it do not require exclusion of
evidence obtained through a search by a
private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into
possession of the Government without the latter
transgressing appellant's rights against unreasonable
search and seizure, the Court sees no cogent reason
why the same should not be admitted against him in
the prosecution of the offense charged.
Appellant, however, would like this court to believe
that NBI agents made an illegal search and seizure of
the evidence later on used in prosecuting the case
which resulted in his conviction.
The postulate advanced by accused/appellant needs
to be clarified in two days. In both instances, the
argument stands to fall on its own weight, or the lack
of it.
First, the factual considerations of the case at bar
readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of
the forwarding agency, who made search/inspection
of the packages. Said inspection was reasonable and
a standard operating procedure on the part of Mr.
Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of
Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8;
Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box
containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to
his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and
entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to the
postulate of accused/appellant.
Second, the mere presence of the NBI agents did not
convert the reasonable search effected by Reyes into
a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which
is in plain sight is not a search. Having observed that
which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v.
State, 429 SW2d 135). Where the contraband articles
are identified without a trespass on the part of the
arresting officer, there is not the search that is
prohibited by the constitution (US v. Lee 274 US 559,
71 L.Ed. 1202 [1927]; Ker v. State of California 374
US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429
SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was
likewise held that where the property was taken into
custody of the police at the specific request of the
manager and where the search was initially made by
the owner there is no unreasonable search and
seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is
not meant to be invoked against acts of private
individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must
always be subject to protection. But protection against
whom? Commissioner Bernas in his sponsorship
speech in the Bill of Rights answers the query which
he himself posed, as follows:
First, the general reflections. The protection of
fundamental liberties in the essence of
constitutional democracy. Protection against
whom? Protection against the state. The Bill
of Rights governs the relationship between
the individual and the state. Its concern is not
the relation between individuals, between a
private individual and other individuals. What
the Bill of Rights does is to declare some
forbidden zones in the private sphere
inaccessible to any power holder.
(Sponsorship Speech of Commissioner
Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)
The constitutional proscription against unlawful
searches and seizures therefore applies as a restraint
directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could
only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise
of power is imposed.
If the search is made upon the request of law
enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if
the search is made at the behest or initiative of the
proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without
the intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked
for only the act of private individual, not the law
enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals so
as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions
of the 1935 Constitution has been modified by the
present phraseology found in the 1987 Charter,
expressly declaring as inadmissible any evidence
obtained in violation of the constitutional prohibition
against illegal search and seizure, it matters not
whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).
The argument is untenable. For one thing, the
constitution, in laying down the principles of the
government and fundamental liberties of the people,
does not govern relationships between individuals.
Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re:
Sec. 2, Art. III) relate to the issuance of either a
search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof
(See Soliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No. 12
[June 30, 1987]. The modifications introduced deviate
in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed
against. The restraint stayed with the State and did
not shift to anyone else.
Corolarilly, alleged violations against unreasonable
search and seizure may only be invoked against the
State by an individual unjustly traduced by the
exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation
of the Bill of Rights should also be construed as an
act of the State would result in serious legal
complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured
by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional
rights to privacy and communication.
2. In his second assignment of error, appellant
contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the
constitution while under custodial investigation were
not observed.
Again, the contention is without merit, We have
carefully examined the records of the case and found
nothing to indicate, as an "undisputed fact", that
appellant was not informed of his constitutional rights
or that he gave statements without the assistance of
counsel. The law enforcers testified that
accused/appellant was informed of his constitutional
rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence,
there being no evidence to the contrary. What is clear
from the records, on the other hand, is that appellant
refused to give any written statement while under
investigation as testified by Atty. Lastimoso of the
NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs.
Job Reyes. What about the accused here, did
you investigate the accused together with the
girl?
WITNESS:
Yes, we have interviewed the accused
together with the girl but the accused availed
of his constitutional right not to give any
written statement, sir. (TSN, October 8, 1987,
p. 62; Original Records, p. 240)
The above testimony of the witness for the
prosecution was not contradicted by the defense on
cross-examination. As borne out by the records,
neither was there any proof by the defense that
appellant gave uncounselled confession while being
investigated. What is more, we have examined the
assailed judgment of the trial court and nowhere is
there any reference made to the testimony of
appellant while under custodial investigation which
was utilized in the finding of conviction. Appellant's
second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of
error, appellant would like us to believe that he was
not the owner of the packages which contained
prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along
Ermita, Manila: that in the course of their 30-minute
conversation, Michael requested him to ship the
packages and gave him P2,000.00 for the cost of the
shipment since the German national was about to
leave the country the next day (October 15, 1987,
TSN, pp. 2-10).
Rather than give the appearance of veracity, we find
appellant's disclaimer as incredulous, self-serving and
contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger
struck in half an hour could not have pushed a man to
entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily
accede to comply with the undertaking without first
ascertaining its contents. As stated by the trial court,
"(a) person would not simply entrust contraband and
of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a
complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such
undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-
so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony
of credible witnesses who testify on affirmative
matters (People v. Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect
considering that, as per records of the Interpol, he
was previously convicted of possession of hashish by
the Kleve Court in the Federal Republic of Germany
on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss
national, was likewise convicted for drug abuse and is
just about an hour's drive from appellant's residence
in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p.
93).
Evidence to be believed, must not only proceed from
the mouth of a credible witness, but it must be
credible in itself such as the common experience and
observation of mankind can approve as probable
under the circumstances (People v. Alto, 26 SCRA
342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg.
130; see also People v. Sarda, 172 SCRA 651 [1989];
People v. Sunga, 123 SCRA 327 [1983]); Castañares
v. CA, 92 SCRA 567 [1979]). As records further show,
appellant did not even bother to ask Michael's full
name, his complete address or passport number.
Furthermore, if indeed, the German national was the
owner of the merchandise, appellant should have so
indicated in the contract of shipment (Exh. "B",
Original Records, p. 40). On the contrary, appellant
signed the contract as the owner and shipper thereof
giving more weight to the presumption that things
which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule
131). At this point, appellant is therefore estopped to
claim otherwise.
Premises considered, we see no error committed by
the trial court in rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding
appellant guilty beyond reasonable doubt of the crime
charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
8) Yrasegui vs. Philippine Airlines (G.R. No. 168081,
October 17, 2008)
REYES, R.T., J.:
THIS case portrays the peculiar story of an
international flight steward who was dismissed
because of his failure to adhere to the weight
standards of the airline company.
He is now before this Court via a petition for review on
certiorari claiming that he was illegally dismissed. To
buttress his stance, he argues that (1) his dismissal
does not fall under 282(e) of the Labor Code; (2)
continuing adherence to the weight standards of the
company is not a bona fide occupational qualification;
and (3) he was discriminated against because other
overweight employees were promoted instead of
being disciplined.
After a meticulous consideration of all
arguments pro and con, We uphold the legality of
dismissal. Separation pay, however, should be
awarded in favor of the employee as an act of social
justice or based on equity. This is so because his
dismissal is not for serious misconduct. Neither is it
reflective of his moral character.
The Facts
Petitioner Armando G. Yrasuegui was a
former international flight steward of Philippine
Airlines, Inc. (PAL). He stands five feet and eight
inches (5’8") with a large body frame. The proper
weight for a man of his height and body structure is
from 147 to 166 pounds, the ideal weight being 166
pounds, as mandated by the Cabin and Crew
Administration Manual1 of PAL.
The weight problem of petitioner dates back to 1984.
Back then, PAL advised him to go on an extended
vacation leave from December 29, 1984 to March 4,
1985 to address his weight concerns. Apparently,
petitioner failed to meet the company’s weight
standards, prompting another leave without pay from
March 5, 1985 to November 1985.
After meeting the required weight, petitioner was
allowed to return to work. But petitioner’s weight
problem recurred. He again went on leave without pay
from October 17, 1988 to February 1989.
On April 26, 1989, petitioner weighed 209 pounds, 43
pounds over his ideal weight. In line with company
policy, he was removed from flight duty effective May
6, 1989 to July 3, 1989. He was formally requested to
trim down to his ideal weight and report for weight
checks on several dates. He was also told that he
may avail of the services of the company physician
should he wish to do so. He was advised that his case
will be evaluated on July 3, 1989.2
On February 25, 1989, petitioner underwent weight
check. It was discovered that he gained, instead of
losing, weight. He was overweight at 215 pounds,
which is 49 pounds beyond the limit. Consequently,
his off-duty status was retained.
On October 17, 1989, PAL Line Administrator Gloria
Dizon personally visited petitioner at his residence to
check on the progress of his effort to lose weight.
Petitioner weighed 217 pounds, gaining 2 pounds
from his previous weight. After the visit, petitioner
made a commitment3 to reduce weight in a letter
addressed to Cabin Crew Group Manager Augusto
Barrios. The letter, in full, reads:
Dear Sir:
I would like to guaranty my commitment towards a
weight loss from 217 pounds to 200 pounds from
today until 31 Dec. 1989.
From thereon, I promise to continue reducing at a
reasonable percentage until such time that my ideal
weight is achieved.
Likewise, I promise to personally report to your office
at the designated time schedule you will set for my
weight check.
Respectfully Yours,
F/S Armando Yrasuegui 4 held where petitioner manifested that he was
Despite the lapse of a ninety-day period given him to
reach his ideal weight, petitioner remained
overweight. On January 3, 1990, he was informed of
the PAL decision for him to remain grounded until
such time that he satisfactorily complies with the
weight standards. Again, he was directed to report
every two weeks for weight checks.
Petitioner failed to report for weight checks. Despite
that, he was given one more month to comply with the
weight requirement. As usual, he was asked to report
for weight check on different dates. He was reminded
that his grounding would continue pending
satisfactory compliance with the weight standards. 5
Again, petitioner failed to report for weight checks,
although he was seen submitting his passport for
processing at the PAL Staff Service Division.
On April 17, 1990, petitioner was formally warned that
a repeated refusal to report for weight check would be
dealt with accordingly. He was given another set of
weight check dates.6 Again, petitioner ignored the
directive and did not report for weight checks. On
June 26, 1990, petitioner was required to explain his
refusal to undergo weight checks.7
When petitioner tipped the scale on July 30, 1990, he
weighed at 212 pounds. Clearly, he was still way over
his ideal weight of 166 pounds.
From then on, nothing was heard from petitioner until
he followed up his case requesting for leniency on the
latter part of 1992. He weighed at 219 pounds on
August 20, 1992 and 205 pounds on November 5,
1992.
On November 13, 1992, PAL finally served petitioner
a Notice of Administrative Charge for violation of
company standards on weight requirements. He was
given ten (10) days from receipt of the charge within
which to file his answer and submit controverting
evidence.8
On December 7, 1992, petitioner submitted his
Answer.9 Notably, he did not deny being overweight.
What he claimed, instead, is that his violation, if any,
had already been condoned by PAL since "no action
has been taken by the company" regarding his case
"since 1988." He also claimed that PAL discriminated
against him because "the company has not been fair
in treating the cabin crew members who are similarly
situated."
On December 8, 1992, a clarificatory hearing was
undergoing a weight reduction program to lose at
least two (2) pounds per week so as to attain his ideal
weight.10
On June 15, 1993, petitioner was formally informed by
PAL that due to his inability to attain his ideal weight,
"and considering the utmost leniency" extended to
him "which spanned a period covering a total of
almost five (5) years," his services were considered
terminated "effective immediately."11
His motion for reconsideration having been
denied,12 petitioner filed a complaint for illegal
dismissal against PAL.
Labor Arbiter, NLRC and CA Dispositions
On November 18, 1998, Labor Arbiter Valentin C.
Reyes ruled13 that petitioner was illegally dismissed.
The dispositive part of the Arbiter ruling runs as
follows:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered, declaring the complainant’s
dismissal illegal, and ordering the respondent to
reinstate him to his former position or substantially
equivalent one, and to pay him:
a. Backwages of Php10,500.00 per month from his
dismissal on June 15, 1993 until reinstated, which for
purposes of appeal is hereby set from June 15, 1993
up to August 15, 1998 at ₱651,000.00;
b. Attorney’s fees of five percent (5%) of the total
award.
SO ORDERED.14
The Labor Arbiter held that the weight standards of
PAL are reasonable in view of the nature of the job of
petitioner.15 However, the weight standards need not
be complied with under pain of dismissal since his
weight did not hamper the performance of his
duties.16 Assuming that it did, petitioner could be
transferred to other positions where his weight would
not be a negative factor.17 Notably, other overweight
employees, i.e., Mr. Palacios, Mr. Cui, and Mr.
Barrios, were promoted instead of being disciplined. 18
Both parties appealed to the National Labor Relations
Commission (NLRC).19
On October 8, 1999, the Labor Arbiter issued a writ of
execution directing the reinstatement of petitioner
without loss of seniority rights and other benefits. 20
On February 1, 2000, the Labor Arbiter denied 21 the
Motion to Quash Writ of Execution22 of PAL.
On March 6, 2000, PAL appealed the denial of its
motion to quash to the NLRC.23
On June 23, 2000, the NLRC rendered judgment 24 in
the following tenor:
WHEREFORE, premises considered[,] the Decision
of the Arbiter dated 18 November 1998 as modified
by our findings herein, is hereby AFFIRMED and that
part of the dispositive portion of said decision
concerning complainant’s entitlement to backwages
shall be deemed to refer to complainant’s entitlement
to his full backwages, inclusive of allowances and to
his other benefits or their monetary equivalent instead
of simply backwages, from date of dismissal until his
actual reinstatement or finality hereof. Respondent is
enjoined to manifests (sic) its choice of the form of the
reinstatement of complainant, whether physical or
through payroll within ten (10) days from notice failing
which, the same shall be deemed as complainant’s
reinstatement through payroll and execution in case
of non-payment shall accordingly be issued by the
Arbiter. Both appeals of respondent thus,
are DISMISSED for utter lack of merit.25
According to the NLRC, "obesity, or the tendency to
gain weight uncontrollably regardless of the amount of
food intake, is a disease in itself."26 As a
consequence, there can be no intentional defiance or
serious misconduct by petitioner to the lawful order of
PAL for him to lose weight.27
Like the Labor Arbiter, the NLRC found the weight
standards of PAL to be reasonable. However, it found
as unnecessary the Labor Arbiter holding that
petitioner was not remiss in the performance of his
duties as flight steward despite being overweight.
According to the NLRC, the Labor Arbiter should have
limited himself to the issue of whether the failure of
petitioner to attain his ideal weight constituted willful
defiance of the weight standards of PAL.28
PAL moved for reconsideration to no avail.29 Thus,
PAL elevated the matter to the Court of Appeals (CA)
via a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure.30
By Decision dated August 31, 2004, the CA
reversed31 the NLRC:
WHEREFORE, premises considered, we hereby
GRANT the petition. The assailed NLRC decision is
declared NULL and VOID and is hereby SET ASIDE.
The private respondent’s complaint is hereby
DISMISSED. No costs.
SO ORDERED.32
The CA opined that there was grave abuse of
discretion on the part of the NLRC because it "looked
at wrong and irrelevant considerations"33 in evaluating
the evidence of the parties. Contrary to the NLRC
ruling, the weight standards of PAL are meant to be
a continuing qualification for an employee’s
position.34 The failure to adhere to the weight
standards is an analogous cause for the dismissal of
an employee under Article 282(e) of the Labor Code
in relation to Article 282(a). It is not willful
disobedience as the NLRC seemed to suggest.35 Said
the CA, "the element of willfulness that the NLRC
decision cites is an irrelevant consideration in arriving
at a conclusion on whether the dismissal is legally
proper."36 In other words, "the relevant question to ask
is not one of willfulness but one of reasonableness of
the standard and whether or not the employee
qualifies or continues to qualify under this standard." 37
Just like the Labor Arbiter and the NLRC, the CA held
that the weight standards of PAL are
reasonable.38 Thus, petitioner was legally dismissed
because he repeatedly failed to meet the prescribed
weight standards.39 It is obvious that the issue of
discrimination was only invoked by petitioner for
purposes of escaping the result of his dismissal for
being overweight.40
On May 10, 2005, the CA denied petitioner’s motion
for reconsideration.41 Elaborating on its earlier ruling,
the CA held that the weight standards of PAL are
a bona fide occupational qualification which, in case
of violation, "justifies an employee’s separation from
the service."42
Issues
In this Rule 45 petition for review, the following issues
are posed for resolution:
I.
WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ERRED IN HOLDING
THAT PETITIONER’S OBESITY CAN BE A
GROUND FOR DISMISSAL UNDER PARAGRAPH
(e) OF ARTICLE 282 OF THE LABOR CODE OF
THE PHILIPPINES;
II.
WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ERRED IN HOLDING
THAT PETITIONER’S DISMISSAL FOR OBESITY
CAN BE PREDICATED ON THE "BONA FIDE
OCCUPATIONAL QUALIFICATION (BFOQ)
DEFENSE";
III.
WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ERRED IN HOLDING THAT PETITIONER
WAS NOT UNDULY DISCRIMINATED AGAINST
WHEN HE WAS DISMISSED WHILE OTHER
OVERWEIGHT CABIN ATTENDANTS WERE
EITHER GIVEN FLYING DUTIES OR PROMOTED;
IV.
WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ERRED WHEN IT BRUSHED ASIDE
PETITIONER’S CLAIMS FOR REINSTATEMENT
[AND] WAGES ALLEGEDLY FOR BEING MOOT
AND ACADEMIC.43 (Underscoring supplied)
Our Ruling
I. The obesity of petitioner is a ground for
dismissal under Article 282(e) 44 of the Labor
Code.
A reading of the weight standards of PAL would lead
to no other conclusion than that they constitute a
continuing qualification of an employee in order to
keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with his
ideal weight as prescribed by the weight standards.
The dismissal of the employee would thus fall under
Article 282(e) of the Labor Code. As explained by the
CA:
x x x [T]he standards violated in this case were not
mere "orders" of the employer; they were the
"prescribed weights" that a cabin crew
must maintain in order to qualify for and keep his
or her position in the company. In other words, they
were standards that establish continuing
qualifications for an employee’s position. In this
sense, the failure to maintain these standards does
not fall under Article 282(a) whose express terms
require the element of willfulness in order to be a
ground for dismissal. The failure to meet the
employer’s qualifying standards is in fact a ground
that does not squarely fall under grounds (a) to (d)
and is therefore one that falls under Article 282(e) –
the "other causes analogous to the foregoing."
By its nature, these "qualifying standards" are norms
that apply prior to and after an employee is hired.
They apply prior to employment because these are
the standards a job applicant must initially meet in
order to be hired. They apply after hiring because an
employee must continue to meet these standards
while on the job in order to keep his job. Under this
perspective, a violation is not one of the faults for
which an employee can be dismissed pursuant to
pars. (a) to (d) of Article 282; the employee can be
dismissed simply because he no longer "qualifies" for
his job irrespective of whether or not the failure to
qualify was willful or intentional. x x x45
Petitioner, though, advances a very interesting
argument. He claims that obesity is a "physical
abnormality and/or illness."46 Relying on Nadura v.
Benguet Consolidated, Inc.,47 he says his dismissal is
illegal:
Conscious of the fact that Nadura’s case cannot be
made to fall squarely within the specific causes
enumerated in subparagraphs 1(a) to (e), Benguet
invokes the provisions of subparagraph 1(f) and says
that Nadura’s illness – occasional attacks of asthma –
is a cause analogous to them.
Even a cursory reading of the legal provision under
consideration is sufficient to convince anyone that, as
the trial court said, "illness cannot be included as an
analogous cause by any stretch of imagination."
It is clear that, except the just cause mentioned in
sub-paragraph 1(a), all the others expressly
enumerated in the law are due to the voluntary and/or
willful act of the employee. How Nadura’s illness
could be considered as "analogous" to any of them is
beyond our understanding, there being no claim or
pretense that the same was contracted through his
own voluntary act.48
The reliance on Nadura is off-tangent. The factual
milieu in Nadura is substantially different from the
case at bar. First, Nadura was not decided under the
Labor Code. The law applied in that case was
Republic Act (RA) No. 1787. Second, the issue of
flight safety is absent in Nadura, thus, the rationale
there cannot apply here. Third, in Nadura, the
employee who was a miner, was laid off from work
because of illness, i.e., asthma. Here, petitioner was
dismissed for his failure to meet the weight standards
of PAL. He was not dismissed due to illness. Fourth,
the issue in Nadura is whether or not the dismissed
employee is entitled to separation pay and damages.
Here, the issue centers on the propriety of the
dismissal of petitioner for his failure to meet the
weight standards of PAL. Fifth, in Nadura, the
employee was not accorded due process. Here,
petitioner was accorded utmost leniency. He was
given more than four (4) years to comply with the
weight standards of PAL.
In the case at bar, the evidence on record militates
against petitioner’s claims that obesity is a disease.
That he was able to reduce his weight from 1984 to
1992 clearly shows that it is possible for him to lose
weight given the proper attitude, determination, and
self-discipline. Indeed, during the clarificatory hearing
on December 8, 1992, petitioner himself claimed that
"[t]he issue is could I bring my weight down to ideal
weight which is 172, then the answer is yes. I can do
it now."49
True, petitioner claims that reducing weight is costing
him "a lot of expenses."50 However, petitioner has only
himself to blame. He could have easily availed the
assistance of the company physician, per the advice
of PAL.51 He chose to ignore the suggestion. In fact,
he repeatedly failed to report when required to
undergo weight checks, without offering a valid
explanation. Thus, his fluctuating weight indicates
absence of willpower rather than an illness.
Petitioner cites Bonnie Cook v. State of Rhode Island,
Department of Mental Health, Retardation and
Hospitals,52 decided by the United States Court of
Appeals (First Circuit). In that case, Cook worked
from 1978 to 1980 and from 1981 to 1986 as an
institutional attendant for the mentally retarded at the
Ladd Center that was being operated by respondent.
She twice resigned voluntarily with an unblemished
record. Even respondent admitted that her
performance met the Center’s legitimate expectations.
In 1988, Cook re-applied for a similar position. At that
time, "she stood 5’2" tall and weighed over 320
pounds." Respondent claimed that the morbid obesity
of plaintiff compromised her ability to evacuate
patients in case of emergency and it also put her at
greater risk of serious diseases.
Cook contended that the action of respondent
amounted to discrimination on the basis of a
handicap. This was in direct violation of Section
504(a) of the Rehabilitation Act of 1973,53 which
incorporates the remedies contained in Title VI of the
Civil Rights Act of 1964. Respondent claimed,
however, that morbid obesity could never constitute a
handicap within the purview of the Rehabilitation Act.
Among others, obesity is a mutable condition, thus
plaintiff could simply lose weight and rid herself of
concomitant disability.
The appellate Court disagreed and held that morbid
obesity is a disability under the Rehabilitation Act and
that respondent discriminated against Cook based on
"perceived" disability. The evidence included expert
testimony that morbid obesity is a physiological
disorder. It involves a dysfunction of both the
metabolic system and the neurological appetite –
suppressing signal system, which is capable of
causing adverse effects within the musculoskeletal,
respiratory, and cardiovascular systems. Notably, the
Court stated that "mutability is relevant only in
determining the substantiality of the limitation flowing
from a given impairment," thus "mutability only
precludes those conditions that an individual can
easily and quickly reverse by behavioral alteration."
Unlike Cook, however, petitioner is not morbidly
obese. In the words of the District Court for the
District of Rhode Island, Cook was sometime before
1978 "at least one hundred pounds more than what is
considered appropriate of her height." According to
the Circuit Judge, Cook weighed "over 320 pounds" in
1988. Clearly, that is not the case here. At his
heaviest, petitioner was only less than 50 pounds
over his ideal weight.
In fine, We hold that the obesity of petitioner, when
placed in the context of his work as flight attendant,
becomes an analogous cause under Article 282(e) of
the Labor Code that justifies his dismissal from the
service. His obesity may not be unintended, but is
nonetheless voluntary. As the CA correctly puts it,
"[v]oluntariness basically means that the just cause is
solely attributable to the employee without any
external force influencing or controlling his actions.
This element runs through all just causes under
Article 282, whether they be in the nature of a
wrongful action or omission. Gross and habitual
neglect, a recognized just cause, is considered
voluntary although it lacks the element of intent found
in Article 282(a), (c), and (d)."54
II. The dismissal of petitioner can be predicated on
the bona fide occupational qualification defense.
Employment in particular jobs may not be limited to
persons of a particular sex, religion, or national origin
unless the employer can show that sex, religion, or
national origin is an actual qualification for performing
the job. The qualification is called a bona fide
occupational qualification (BFOQ).55 In the United
States, there are a few federal and many state job
discrimination laws that contain an exception allowing
an employer to engage in an otherwise unlawful form
of prohibited discrimination when the action is based
on a BFOQ necessary to the normal operation of a
business or enterprise.56
Petitioner contends that BFOQ is a statutory defense.
It does not exist if there is no statute providing for
it.57 Further, there is no existing BFOQ statute that
could justify his dismissal.58
Both arguments must fail.
First, the Constitution,59 the Labor Code,60 and RA No.
727761 or the Magna Carta for Disabled
Persons62 contain provisions similar to BFOQ.
Second, in British Columbia Public Service Employee
Commission (BSPSERC) v. The British Columbia
Government and Service Employee’s Union
(BCGSEU),63 the Supreme Court of Canada adopted
the so-called "Meiorin Test" in determining whether an
employment policy is justified. Under this test, (1) the
employer must show that it adopted the standard for a
purpose rationally connected to the performance of
the job;64 (2) the employer must establish that the
standard is reasonably necessary65 to the
accomplishment of that work-related purpose; and (3)
the employer must establish that the standard is
reasonably necessary in order to accomplish the
legitimate work-related purpose. Similarly, in Star
Paper Corporation v. Simbol,66 this Court held that in
order to justify a BFOQ, the employer must prove that
(1) the employment qualification is reasonably related
to the essential operation of the job involved; and (2)
that there is factual basis for believing that all or
substantially all persons meeting the qualification
would be unable to properly perform the duties of the
job.67
In short, the test of reasonableness of the company
policy is used because it is parallel to BFOQ.68 BFOQ
is valid "provided it reflects an inherent quality
reasonably necessary for satisfactory job
performance."69
In Duncan Association of Detailman-PTGWTO v.
Glaxo Wellcome Philippines, Inc.,70 the Court did not
hesitate to pass upon the validity of a company policy
which prohibits its employees from marrying
employees of a rival company. It was held that the
company policy is reasonable considering that its
purpose is the protection of the interests of the
company against possible competitor infiltration on its
trade secrets and procedures.
Verily, there is no merit to the argument that BFOQ
cannot be applied if it has no supporting statute. Too,
the Labor Arbiter,71 NLRC,72 and CA73 are one in
holding that the weight standards of PAL are
reasonable. A common carrier, from the nature of its
business and for reasons of public policy, is bound to
observe extraordinary diligence for the safety of the
passengers it transports.74 It is bound to carry its
passengers safely as far as human care and foresight
can provide, using the utmost diligence of very
cautious persons, with due regard for all the
circumstances.75
The law leaves no room for mistake or oversight on
the part of a common carrier. Thus, it is only logical to
hold that the weight standards of PAL show its effort
to comply with the exacting obligations imposed upon
it by law by virtue of being a common carrier.
The business of PAL is air transportation. As such, it
has committed itself to safely transport its
passengers. In order to achieve this, it must
necessarily rely on its employees, most particularly
the cabin flight deck crew who are on board the
aircraft. The weight standards of PAL should be
viewed as imposing strict norms of discipline upon its
employees.
In other words, the primary objective of PAL in the
imposition of the weight standards for cabin crew
is flight safety. It cannot be gainsaid that cabin
attendants must maintain agility at all times in order to
inspire passenger confidence on their ability to care
for the passengers when something goes wrong. It is
not farfetched to say that airline companies, just like
all common carriers, thrive due to public confidence
on their safety records. People, especially the riding
public, expect no less than that airline companies
transport their passengers to their respective
destinations safely and soundly. A lesser performance
is unacceptable.
The task of a cabin crew or flight attendant is not
limited to serving meals or attending to the whims and
caprices of the passengers. The most important
activity of the cabin crew is to care for the safety of
passengers and the evacuation of the aircraft when
an emergency occurs. Passenger safety goes to the
core of the job of a cabin attendant. Truly, airlines
need cabin attendants who have the necessary
strength to open emergency doors, the agility to
attend to passengers in cramped working conditions,
and the stamina to withstand grueling flight
schedules.
On board an aircraft, the body weight and size of a
cabin attendant are important factors to consider in
case of emergency. Aircrafts have constricted cabin
space, and narrow aisles and exit doors. Thus, the
arguments of respondent that "[w]hether the airline’s
flight attendants are overweight or not has no direct
relation to its mission of transporting passengers to
their destination"; and that the weight standards "has
nothing to do with airworthiness of respondent’s
airlines," must fail.
The rationale in Western Air Lines v. Criswell76 relied
upon by petitioner cannot apply to his case. What was
involved there were two (2) airline pilots who were
denied reassignment as flight engineers upon
reaching the age of 60, and a flight engineer who was
forced to retire at age 60. They sued the airline
company, alleging that the age-60 retirement for flight
engineers violated the Age Discrimination in
Employment Act of 1967. Age-based BFOQ and
being overweight are not the same. The case of
overweight cabin attendants is another matter. Given
the cramped cabin space and narrow aisles and
emergency exit doors of the airplane, any overweight
cabin attendant would certainly have difficulty
navigating the cramped cabin area.
In short, there is no need to individually evaluate their
ability to perform their task. That an obese cabin
attendant occupies more space than a slim one is an
unquestionable fact which courts can judicially
recognize without introduction of evidence.77 It would
also be absurd to require airline companies to
reconfigure the aircraft in order to widen the aisles
and exit doors just to accommodate overweight cabin
attendants like petitioner.
The biggest problem with an overweight cabin
attendant is the possibility of impeding passengers
from evacuating the aircraft, should the occasion call
for it. The job of a cabin attendant during emergencies
is to speedily get the passengers out of the aircraft
safely. Being overweight necessarily impedes
mobility. Indeed, in an emergency situation, seconds
are what cabin attendants are dealing with, not
minutes. Three lost seconds can translate into three
lost lives. Evacuation might slow down just because a
wide-bodied cabin attendant is blocking the narrow
aisles. These possibilities are not remote.
Petitioner is also in estoppel. He does not dispute that
the weight standards of PAL were made known to him
prior to his employment. He is presumed to know the
weight limit that he must maintain at all times.78 In
fact, never did he question the authority of PAL when
he was repeatedly asked to trim down his
weight. Bona fides exigit ut quod convenit fiat. Good
faith demands that what is agreed upon shall be
done. Kung ang tao ay tapat kanyang tutuparin
ang napagkasunduan.
Too, the weight standards of PAL provide for separate
weight limitations based on height and body frame for
both male and female cabin attendants. A progressive
discipline is imposed to allow non-compliant cabin
attendants sufficient opportunity to meet the weight
standards. Thus, the clear-cut rules obviate any
possibility for the commission of abuse or arbitrary
action on the part of PAL.
III. Petitioner failed to substantiate his claim that
he was discriminated against by PAL.
Petitioner next claims that PAL is using passenger
safety as a convenient excuse to discriminate against
him.79 We are constrained, however, to hold
otherwise. We agree with the CA that "[t]he element
of discrimination came into play in this case as a
secondary position for the private respondent in order
to escape the consequence of dismissal that being
overweight entailed. It is a confession-and-avoidance
position that impliedly admitted the cause of
dismissal, including the reasonableness of the
applicable standard and the private respondent’s
failure to comply."80 It is a basic rule in evidence that
each party must prove his affirmative allegation.81
Since the burden of evidence lies with the party who
asserts an affirmative allegation, petitioner has to
prove his allegation with particularity. There is nothing
on the records which could support the finding of
discriminatory treatment. Petitioner cannot establish
discrimination by simply naming the supposed cabin
attendants who are allegedly similarly situated with
him. Substantial proof must be shown as to how and
why they are similarly situated and the differential
treatment petitioner got from PAL despite the
similarity of his situation with other employees.
Indeed, except for pointing out the names of the
supposed overweight cabin attendants, petitioner
miserably failed to indicate their respective ideal
weights; weights over their ideal weights; the periods
they were allowed to fly despite their being
overweight; the particular flights assigned to them; the
discriminating treatment they got from PAL; and other
relevant data that could have adequately established
a case of discriminatory treatment by PAL. In the
words of the CA, "PAL really had no substantial case
of discrimination to meet."82
We are not unmindful that findings of facts of
administrative agencies, like the Labor Arbiter and the
NLRC, are accorded respect, even finality.83 The
reason is simple: administrative agencies are experts
in matters within their specific and specialized
jurisdiction.84 But the principle is not a hard and fast
rule. It only applies if the findings of facts are duly
supported by substantial evidence. If it can be shown
that administrative bodies grossly misappreciated
evidence of such nature so as to compel a conclusion
to the contrary, their findings of facts must necessarily
be reversed. Factual findings of administrative
agencies do not have infallibility and must be set
aside when they fail the test of arbitrariness.85
Here, the Labor Arbiter and the NLRC inexplicably
misappreciated evidence. We thus annul their
findings.
To make his claim more believable, petitioner invokes
the equal protection clause guaranty 86 of the
Constitution. However, in the absence of
governmental interference, the liberties guaranteed by
the Constitution cannot be invoked.87 Put differently,
the Bill of Rights is not meant to be invoked against
acts of private individuals.88 Indeed, the United States
Supreme Court, in interpreting the Fourteenth
Amendment,89 which is the source of our equal
protection guarantee, is consistent in saying that the
equal protection erects no shield against private
conduct, however discriminatory or wrongful.90 Private
actions, no matter how egregious, cannot violate the
equal protection guarantee.91
IV. The claims of petitioner for reinstatement and
wages are moot.
As his last contention, petitioner avers that his claims
for reinstatement and wages have not been mooted.
He is entitled to reinstatement and his full backwages,
"from the time he was illegally dismissed" up to the
time that the NLRC was reversed by the CA.92
At this point, Article 223 of the Labor Code finds
relevance:
In any event, the decision of the Labor Arbiter
reinstating a dismissed or separated employee,
insofar as the reinstatement aspect is concerned,
shall immediately be executory, even pending appeal.
The employee shall either be admitted back to work
under the same terms and conditions prevailing prior
to his dismissal or separation or, at the option of the
employer, merely reinstated in the payroll. The
posting of a bond by the employer shall not stay the
execution for reinstatement provided herein.
The law is very clear. Although an award or order of
reinstatement is self-executory and does not require a
writ of execution,93 the option to exercise actual
reinstatement or payroll reinstatement belongs to the
employer. It does not belong to the employee, to the
labor tribunals, or even to the courts.
Contrary to the allegation of petitioner that PAL "did
everything under the sun" to frustrate his "immediate
return to his previous position," 94 there is evidence
that PAL opted to physically reinstate him to a
substantially equivalent position in accordance with
the order of the Labor Arbiter.95 In fact, petitioner duly
received the return to work notice on February 23,
2001, as shown by his signature. 96
Petitioner cannot take refuge in the pronouncements
of the Court in a case97 that "[t]he unjustified refusal of
the employer to reinstate the dismissed employee
entitles him to payment of his salaries effective from
the time the employer failed to reinstate him despite
the issuance of a writ of execution" 98 and ""even if the
order of reinstatement of the Labor Arbiter is reversed
on appeal, it is obligatory on the part of the employer
to reinstate and pay the wages of the employee
during the period of appeal until reversal by the higher
court."99 He failed to prove that he complied with the
return to work order of PAL. Neither does it appear on
record that he actually rendered services for PAL from
the moment he was dismissed, in order to insist on
the payment of his full backwages.
In insisting that he be reinstated to his actual
position despite being overweight, petitioner in effect
wants to render the issues in the present case moot.
He asks PAL to comply with the impossible. Time and
again, the Court ruled that the law does not exact
compliance with the impossible.100
V. Petitioner is entitled to separation pay.
Be that as it may, all is not lost for petitioner.
Normally, a legally dismissed employee is not entitled Meaning of Life, Liberty, and Property
to separation pay. This may be deduced from the
language of Article 279 of the Labor Code that "[a]n
employee who is unjustly dismissed from work shall Art. 40, 41, 44, Civil Code
be entitled to reinstatement without loss of seniority
rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or 10) Darthmouth College vs. Woodward (4 Wheaton 518)
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of
his actual reinstatement." Luckily for petitioner, this is 11) Ynot vs. IAC (G.R. No. 74457, March 20, 1987)
not an ironclad rule.

12) Ichong vs. Hernandez (G.R. No. L-7995, May 31, 1957)
Exceptionally, separation pay is granted to a legally
dismissed employee as an act "social justice,"101 or
based on "equity."102 In both instances, it is required 13) Villegas vs. Hiu Chong Tsai Pao Ho (86 SCRA 270)
that the dismissal (1) was not for serious misconduct;
and (2) does not reflect on the moral character of the
employee.103 14) South Bell & Co. vs. Natividad (40 Phil. 136)

Here, We grant petitioner separation pay equivalent to

one-half (1/2) month’s pay for every year of 15) Buck vs. Bell (274 US 200)
service.104 It should include regular allowances which
he might have been receiving. 105 We are not blind to
the fact that he was not dismissed for any serious 16) People vs. Fajardo (104 SCRA 443)
misconduct or to any act which would reflect on his
moral character. We also recognize that his
employment with PAL lasted for more or less a 17) Rubi vs. Prov. Board of Mindanao [39 Phil. 660 (1919)]
decade.

WHEREFORE, the appealed Decision of the Court of 18) Torraco vs. Thompson (263 US 197
Appeals is AFFIRMED but MODIFIED in that
petitioner Armando G. Yrasuegui is entitled to
separation pay in an amount equivalent to one-half 19) Hurtado vs. California [110 U.S. 516 (1884)]
(1/2) month’s pay for every year of service, which
should include his regular allowances.
Relativity of Due Process

SO ORDERED
20) Secretary of Justice vs. Lantion (G.R. No. 139466,
October 17, 2000)
9) Zulueta vs. CA (G.R. No. 107383, February 20, 1996)

21) Morrissey vs. Brewer (408 US 471) 22) Cafeteria and

Restaurant Workers Union vs. McElroy [367 US 886 (1961)]

DUE PROCESS

Art. III, Sec. 1

Void for Vagueness/Overbreadth Doctrine

Art. III, Sec. 14 (1)

23) Cafeteria and Restaurant Workers Union vs. McElroy
[367 US 886 (1961)]
Definition, Nature, Scope and Evolution

Purpose of the Guarantee 24) David vs. Arroyo (G.R. No. 171390, May 3, 2006)

25) Ong vs. Sandiganbayan (G.R. No. 126858, September
16, 2005)
Tinga, J.:
This Petition for Certiorari,1 dated December 13, 1996
seeks the nullification of the Resolutions of the
Sandiganbayan dated August 18, 19942 and October
22, 1996.3 The first assailed Resolution denied
petitioners’ motion to dismiss the petition for forfeiture
filed against them, while the second
questioned Resolution denied their motion for
reconsideration.
The antecedents are as follows:
Congressman Bonifacio H. Gillego executed
a Complaint-Affidavit4 on February 4, 1992, claiming
that petitioner Jose U. Ong, then Commissioner of the
Bureau of Internal Revenue (BIR), has amassed
properties worth disproportionately more than his
lawful income. The complaint pertinently states:
In his Statement of Assets and Liabilities as of
December 31, 1989 (Annex "A"), Commissioner Jose
U. Ong declared ₱750,000.00 as his cash on hand
and in banks. Within a short period thereafter, he was
able to acquire prime real estate properties mostly in
the millionaires choice areas in Alabang, Muntinglupa,
Metro Manila costing millions of pesos as follows:
1. A house and lot in Alabang bought on October 9,
1990 for ₱5,500,000.00, now titled in the name of
Jose U. Ong under Transfer Certificate of Title No.
172168, Registry of Deeds for Makati (Annexes "B" &
"C");
2. Another lot in Alabang bought for ₱5,700,000.00,
now titled in the name of Jose U. Ong and Nelly M.
Ong under Transfer Certificate of Title No. 173901.
Registered on January 25, 1991 in the Registry of
Deeds for Makati (Annex "D");
3. Still another lot in Alabang bought for
₱4,675,000.00 on January 16, 1991, now titled in the
name of spouses Jose U. Ong and Nelly Mercado
Ong under Transfer Certificate of Title No. 173760 in
the Registry of Deeds for Makati (Annexes "E" and
"F");
4. Again, another lot in Alabang bought on December
3, 1990 for ₱5,055,000.00, now titled in the name of
the Children of Commissioner Ong and his son-in-law
under transfer Certificate of Title No. 173386 in the
Registry of Deeds for Makati (Annex "G" and "H");
5. Again, a lot in Makati bought for ₱832,000.00 on
July 1, 1990, now titled in the name of the Daughter of
Commissioner Ong and his son-in-law under transfer
certificate of title No. 171210 in the Registry of Deeds
of Makati (Annex "I" & "J").
The above documented purchases of Commissioner
Ong alone which are worth millions of pesos are
obviously disproportionate to his income of just a little
more than ₱200,000.00 per annum. 5
Ong submitted an explanation and analysis of fund
sourcing, reporting his net worth covering the
calendar years 1989 to 1991 and showing his sources
and uses of funds, the sources of the increase in his
net worth and his net worth as of December 13,
1991.6
The Director* of the Fact-Finding and Intelligence
Bureau of the Office of the Ombudsman
(Ombudsman) ordered the conduct of a pre-charge
investigation on the matter. A Fact-Finding
Report7 was promptly submitted* with the following
recommendation:
1. Forfeiture Proceedings be instituted against the
properties of Jose U. Ong which he illegitimately
acquired in just a span of two (2) years as
Commissioner of the Bureau of Internal Revenue.
Such properties are briefly specified as follows:
a) House and lot in Ayala Alabang bought on October
9, 1990 for ₱5.5 million under TCT No. 172168 of the
Registry of Deeds for Makati, Metro Manila;
b) Lot in Ayala Alabang bought on January 23, 1991
for ₱5.5 million under TCT No. 173901;
c) Lot in Ayala Alabang bought on January 16, 1991
for ₱4,675,000.00 under TCT No. 173760;
d) Lot in Ayala Alabang bought on December 3, 1990
for ₱5,055,000.00 under TCT No. 173386; and
e) Condominium Unit 804, located at the eight floor of
the Asian Mansion, bought for ₱744,585.00 under
CCT No. 20735 of the Registry of Deeds for Makati,
Metro Manila.8
Finding that a preliminary inquiry under Sec. 2 of
Republic Act No. 1379 (RA 1379) should be
conducted, Ong was directed to submit his counter-
affidavit and other controverting evidence in
the Order9 dated November 18, 1992. For this
purpose, Ong was furnished copies of
Gillego’s Complaint-Affidavit and the Fact-Finding
Report, with annexes and supporting documents.
Ong filed a Counter-Affidavit10 dated December 21,
1992, submitting his Statement of Assets and
Liabilities for the years 1988-1990, income tax return
for 1988, bank certificate showing that he obtained a
loan from Allied Banking Corporation (Allied Bank),
certificate from SGV & Co. (SGV) showing that he
received retirement benefits from the latter, a
document entitled Acknowledgement of Trust showing
that he acquired one of the questioned assets for his
brother-in-law, and other documents explaining the
sources of funds with which he acquired the
questioned assets.
In view of Ong’s arguments, the Ombudsman issued
another Order11 dated February 11, 1993, the
pertinent portions of which state:
Results of the subpoena duces tecum ad
testificandum issued to Allied Banking Corporation,
Sycip, Gorres, Velayo & Co., including the BIR insofar
as it pertains to the production of the documents that
respondents claimed in justification of the sources of
his funding/income, proved negative since Allied Bank
could not produce documents that would show
availment of the loan, nor could SGV itemize the
documents/vouchers that would, indeed signify the
grant and receipt of the claimed retirement benefits,
as well as the BIR insofar as it pertains on
respondent’s filed income tax returns for the years
1987, 1988, 1989, 1990 and 1991.
Such being the case, and in line with respondent’s
defense as claimed in his counter-affidavit that all his
acquisitions were from legitimate and valid sources
based from his (respondent’s) salary and other
sources of income, and he being the recipient thereof,
copies of which he is entitled as a matter of right and
party recipient on the claimed loan and retirement
benefits, respondent Jose U. Ong, is hereby directed
to submit in writing within a period of fifteen (15) days
from receipt of this ORDER, the following, namely:--
a) all documents in his possession relevant to the
approval by the Allied Banking Corporation on the
P6.5 million term loan including documents in
availment of the loan such as the execution of
promissory note/s, execution of real/chattel
mortgage/s and the fact of its registration with the
Register of Deeds, credit agreements, receipt of
payment on amortization of the loan, if any, and such
other pertinent documents that will show existence
and availment of the loan granted;
b) All documents in his possession that he was
indeed granted by SGV and Co. ₱7.8 million as
retirement benefits including such additional benefits
as claimed as evidenced by vouchers, accounting
records, computation of benefits, that would signify
fact of receipt of the claimed retirement benefits;
c) All documents showing the money market
placements such as but not limited to the (a)
confirmation sale on the placements and (b)
confirmation of the purchase on the placements;
d) Income tax returns as filed in the Bureau of Internal
Revenue for the years, 1987, 1988, 1989, 1990 and
1991.
Failure of the respondent to comply with this ORDER
within the period hereinabove prescribed shall be
deemed a waiver on his part to submit the required
controverting evidence and that he has no evidence
on hand to show proof on the existence of the claimed
defenses as above set forth and that this case shall
be considered for resolution without further notice. 12
Instead of complying with the Order, Ong filed
a Motion,13 dated February 17, 1993 for its recall, the
voluntary inhibition of the handling investigators, and
reassignment of the case. Ong objected to the
proceedings taken thus far, claiming that he was not
notified of the subpoenas issued to SGV and Allied
Bank requiring them to substantiate Ong’s claims.
The Order allegedly violates his right to due process
and to be presumed innocent because it requires him
to produce evidence to exculpate himself.
A Resolution14 dated May 31, 1993 was thereafter
issued finding that Ong "miserably failed to
substantiate his claim that the sources of financing his
said acquisition came from his other lawful income,
taking into account his annual salary of ₱200,000.00
more or less and his cash standing at the time, even
without considering his normal expenses befitting his
stature and position in the Government, as well as his
acquisition of movable properties for the calendar
year[s] 1989 to 1991, totaling ₱930,000.00," and
concluding "that the properties acquired by him in a
matter of ELEVEN (11) MONTHS from October, 1990
to September, 1991, during his incumbency as
Commissioner of the Bureau of Internal Revenue, are
manifestly and grossly disproportionate to his salary
as a public official and his other lawful income."15
The Resolution directed the filing by the Ombudsman,
in collaboration with the Office of the Solicitor General
(OSG), of a petition for recovery of ill-
gotten/unexplained wealth under RA 1379, in relation
to RAs 3019 and 6770, against Ong and all other
persons concerned.
The Resolution was reviewed by the Office of the
Special Prosecutor (Special Prosecutor) which
concurred with the findings and recommendation of
the Ombudsman.16
A Petition17 dated November 15, 1993 for forfeiture of
unlawfully acquired property was accordingly filed
before the Sandiganbayan by the Republic, through
the Special Prosecutor and the Deputy Ombudsman
for Luzon,18 against Ong and his wife, petitioner Nelly
Ong, and docketed as Civil Case No. 0160.
The Petition alleged that the total value of the
questioned assets is ₱21,474,585.00 which is grossly
disproportionate to Ong’s lawful income from his
public employment and other sources amounting to
₱1,060,412.50, considering that Nelly Ong has no
visible means of income. This circumstance allegedly
gave rise to the presumption under Sec. 2 of RA 1379
that the questioned properties were unlawfully
acquired.
In its Order19 dated November 17, 1993, the
Sandiganbayan directed the issuance of a writ of
preliminary attachment against the properties of
petitioners. The writ, issued on November 18, 1993,
was duly served and implemented as shown in the
Sheriff’s Return dated December 1, 1993.20
Petitioners Jose and Nelly Ong filed
an Answer21 dated January 27, 1994, denying that
their lawful income is grossly disproportionate to the
cost of the real properties they acquired during the
incumbency of Ong as BIR Commissioner. According
to them, the Special Prosecutor and the Ombudsman
intentionally failed to consider the retirement and
separation pay Ong received from SGV and other
lawful sources of funds used in the acquisition of the
questioned properties.
They presented several affirmative defenses, such as
the alleged deprivation of their right to due process
considering that no preliminary investigation was
conducted as regards Nelly Ong, and the nullity of the
proceedings before the Ombudsman because the
latter, who acted both as investigator and adjudicator
in the determination of the existence of probable
cause for the filing of the case, will also prosecute the
same. Moreover, the Petition also allegedly failed to
state a cause of action because RA 1379 is
unconstitutional as it is vague and does not
sufficiently define ill-gotten wealth and how it can be
determined in violation of the non-delegation of
legislative power provision, and insofar as it
disregards the presumption of innocence by requiring
them to show cause why the properties in question
should not be declared property of the state. They
also objected to the fact that they were not notified of
the Resolution directing the filing of the case and
were thereby prevented from filing a motion for
reconsideration.
A hearing of petitioners’ affirmative defenses was
conducted as in a motion to dismiss, after which the
Sandiganbayan issued the assailed Resolution dated
August 18, 1994. The Sandiganbayan ruled that a
petition for forfeiture is an action in rem, civil in
character. As such, the participation of Nelly Ong in
the inquiry to determine whether the properties
acquired by her husband are manifestly
disproportionate to his salary and other lawful income
is not a mandatory requirement. Neither is the
conduct of a preliminary investigation as regards Nelly
Ong required. Further, Nelly Ong was only impleaded
in the petition as a formal party.
The court held that the power of the Ombudsman to
investigate and prosecute unexplained wealth cases
is founded on RAs 1379, 3019 and 6770. The
Sandiganbayan, moreover, declared that
the Petition sufficiently states a cause of action.
Petitioners filed a Motion for Reconsideration22 dated
September 11, 1994, averring that although a
forfeiture proceeding is technically a civil action, it is in
substance a criminal proceeding as forfeiture is
deemed a penalty for the violation of RA 1379.
Hence, Nelly Ong is entitled to a preliminary
investigation. To proceed against her conjugal share
of the questioned assets without giving her the
opportunity to present her side in a preliminary
investigation violates her right to due process.
Petitioners reiterated their argument that they were
not notified of the Resolution directing the filing of the
petition for forfeiture and were consequently deprived
of their right to file a motion for reconsideration under
RA 6770 and pertinent rules.
The Sandiganbayan issued the second
assailed Resolution dated October 22, 1996, directing
the Ombudsman to furnish petitioners with a copy of
the Resolution to file the forfeiture case and giving
them a period of five (5) days from receipt of
the Resolution within which to file a motion for
reconsideration. The Ombudsman was given a period
of sixty (60) days to resolve the motion for
reconsideration and to report to the court the action it
has taken thereon.
Instead of awaiting the Ombudsman’s compliance
with the Resolution, petitioners filed the
instant Petition for Certiorari contending that the
Sandiganbayan gravely abused its discretion in ruling
that Nelly Ong is not entitled to preliminary
investigation; failing to annul the proceedings taken
before the Ombudsman despite the alleged bias and
prejudice exhibited by the latter and the
disqualification of the Ombudsman from acting both
as prosecutor and judge in the determination of
probable cause against petitioners; and failing to
declare RA 1379 unconstitutional.
The OSG filed a Comment23 dated December 10,
1997, averring that the reason why Nelly Ong was not
made a party to the proceedings before the
Ombudsman is because her husband never
mentioned any specific property acquired solely and
exclusively by her. What he stated was that all the
acquisitions were through his own efforts. Hence, the
Sandiganbayan correctly held that Nelly Ong is a
mere formal party.
Furthermore, the presumption of innocence clause of
the Constitution refers to criminal prosecutions and
not to forfeiture proceedings which are civil actions in
rem. The Constitution is likewise not violated by RA
1379 because statutes which declare that as a matter
of law a particular inference follows from the proof of
a particular fact, one fact becoming prima
facie evidence of another, are not necessarily invalid,
the effect of the presumption being merely to shift the
burden of proof upon the adverse party.
Neither is the constitutional authority of the Supreme
Court to "promulgate rules concerning the protection
and enforcement of constitutional rights, pleading,
practice and procedure in all courts" violated by RA
1379 merely by authorizing the OSG to grant
immunity from criminal prosecution to any person who
testifies to the unlawful manner in which a respondent
has acquired any property. There is no showing that
the OSG or the Ombudsman is about to grant
immunity to anybody under RA 1379. At any rate, the
power to grant immunity in exchange for testimony
has allegedly been upheld by the Court.
The OSG further argued that the Ombudsman did not
exhibit any bias and partiality against Ong. It
considered his claim that he received retirement
benefits from SGV, obtained a loan from Allied Bank,
and had high yielding money market placements,
although it found that these claims were
unsubstantiated based on its investigation. Moreover,
the sending of subpoenas to SGV and Allied Bank
was in accordance with the powers of the
Ombudsman under RA 6770.
The OSG likewise alleged that RA 1379 is not vague
as it defines legitimately acquired property and
specifies that the acquisition of property out of
proportion to the legitimate income of a public officer
is proscribed.
Petitioners filed a Reply to Comment24 dated April 1,
1998, reiterating their arguments.
In the Resolution25 dated April 14, 1999, the Court
gave due course to the petition and required the
parties to submit their respective memoranda.
Accordingly, petitioners filed
their Memorandum26 dated June 29, 1999,
while the OSG submitted its Memorandum27 dated
September 27, 1999. The Special Prosecutor
submitted its own Memorandum28 dated June 20,
1999.
We deny the petition.
Petitioners contend that Nelly Ong was denied due
process inasmuch as no separate notices or
subpoena were sent to her during the preliminary
investigation conducted by the Ombudsman. They
aver that Nelly Ong is entitled to a preliminary
investigation because a forfeiture proceeding is
criminal in nature.
On the other hand, the OSG and the Ombudsman
contend that Nelly Ong is not entitled to preliminary
investigation, first, because forfeiture proceedings
under RA 1379 are in the nature of civil actions in
rem and preliminary investigation is not
required; second, because even assuming that the
proceeding is penal in character, the right to a
preliminary investigation is a mere statutory privilege
which may be, and was in this case, withheld by law;
and third, because a preliminary investigation would
serve no useful purpose considering that none of the
questioned assets are claimed to have been acquired
through Nelly Ong’s funds.
In Republic v. Sandiganbayan, 29 we ruled that
forfeiture proceedings under RA 1379 are civil in
nature and not penal or criminal in character, as they
do not terminate in the imposition of a penalty but
merely in the forfeiture of the properties illegally
acquired in favor of the State. Moreover, the
procedure outlined in the law is that provided for in a
civil action, viz:
Sec. 3. The petition.—The petition shall contain the
following information:
(a) The name and address of the respondent.
(b) The public office or employment he holds and
such other public officer or employment which he has
previously held.
(c) The approximate amount of property he has
acquired during his incumbency in his past and
present offices and employments.
(d) A description of said property, or such thereof as
has been identified by the Solicitor General.
(e) The total amount of his government salary and
other proper earnings and incomes from legitimately
acquired property, and
(f) Such other information as may enable the court to
determine whether or not the respondent has
unlawfully acquired property during his incumbency.
Sec. 4. Period for the answer.—The respondent shall
have a period of fifteen days within which to present
his answer.
Sec. 5. Hearing.—The court shall set a date for a
hearing which may be open to the public, and during
which the respondent shall be given ample
opportunity to explain, to the satisfaction of the court,
how he has acquired the property in question.
Sec. 6. Judgment.—If the respondent is unable to
show to the satisfaction of the court that he has
lawfully acquired the property in question, then the
court shall declare such property, forfeited in favor of
the State, and by virtue of such judgment the property
aforesaid shall become property of the
State: Provided, that no judgment shall be rendered
within six months before any general election or within
three months before any special election. The court
may, in addition, refer this case to the
corresponding Executive Department for
administrative or criminal action, or
both. [Emphasis supplied.]
Hence, unlike in a criminal proceeding, there is to be
no reading of the information, arraignment, trial and
reading of the judgment in the presence of the
accused.30
In the earlier case of Cabal v. Kapunan,31 however,
we declared that forfeiture to the State of property of a
public official or employee partakes of the nature of a
penalty and proceedings for forfeiture of property,
although technically civil in form, are deemed criminal
or penal. We clarified therein that the doctrine laid
down in Almeda v. Perez32 that forfeiture proceedings
are civil in nature applies purely to the procedural
aspect of such proceedings and has no bearing on
the substantial rights of the respondents therein. This
ruling was reiterated in Katigbak v. Solicitor
General,33 where we held that the forfeiture of
property provided for in RA 1379 is in the nature of a
penalty.
It is in recognition of the fact that forfeiture partakes
the nature of a penalty that RA 1379 affords the
respondent therein the right to a previous
inquiry similar to a preliminary investigation in criminal
cases.
Preliminary investigation is an inquiry or proceeding 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. Although the right
to a preliminary investigation is not a fundamental
right guaranteed by the Constitution but a mere
statutory privilege, it is nonetheless considered a
component part of due process in criminal justice.34
It is argued, however, that even if RA 1379 is
considered a criminal proceeding, Nelly Ong is still
not entitled to a preliminary investigation because the
law itself withholds such right from a respondent who
is not himself or herself a public officer or employee,
such as Nelly Ong.
RA 1379, entitled "An Act Declaring Forfeiture in
Favor of the State of Any Property Found to Have
Been Unlawfully Acquired by Any Public Officer or
Employee and Providing for the Procedure Therefor,"
expressly affords a respondent public officer or
employee the right to a previous inquiry similar to
preliminary investigation in criminal cases, but is silent
as to whether the same right is enjoyed by a co-
respondent who is not a public officer or employee.
Sec. 2 thereof provides:
Sec. 2. Filing of petition.—Whenever any public
officer or employee has acquired during his
incumbency an amount of property which is
manifestly out of proportion to his salary as such
public officer or employee and to his other lawful
income and the income from legitimately acquired
property, said property shall be presumed prima
facie to have been unlawfully acquired. The Solicitor
General, upon complaint by any taxpayer to the city or
provincial fiscal who shall conduct a previous
inquiry similar to preliminary investigations in
criminal cases and shall certify to the Solicitor
General that there is reasonable ground to believe
that there has been committed a violation of this Act
and the respondent is probably guilty thereof, shall
file, in the name and on behalf of the Republic of the
Philippines, in the Court of First Instance of the city or
province where said public officer or employee
resides or holds office, a petition for a writ
commanding said officer or employee to show cause
why the property aforesaid, or any part thereof,
should not be declared property of the
State: Provided, That no such petition shall be filed
within one year before any general election or within
three months before any special election….[Emphasis
supplied.]
Is this silence to be construed to mean that the right
to a preliminary investigation is withheld by RA 1379
from a co-respondent, such as Nelly Ong, who is not
herself a public officer or employee?
The answer is no.
It is a significant fact in this case that the questioned
assets are invariably registered under the names of
both Jose and Nelly Ong owing to their conjugal
partnership. Thus, even as RA 1379 appears to be
directed only against the public officer or employee
who has acquired during his incumbency an amount
of property which is manifestly out of proportion to his
salary as such public officer or employee and his
other lawful income and the income from legitimately
acquired property, the reality that the application of
the law is such that the conjugal share of Nelly Ong
stands to be subjected to the penalty of forfeiture
grants her the right, in line with the due process
clause of the Constitution, to a preliminary
investigation.
There is in this case, however, another legal
complexion which we have to deal with. As the OSG
noted, there is nothing in the affidavits and pleadings
filed by petitioners which attributes the acquisition of
any of the questioned assets to Nelly Ong.
In his Counter-Affidavit, Ong explained that the
questioned assets were purchased
using his retirement benefits from SGV amounting to
₱7.8 Million, various money market placements, and
loan from Allied Bank in the amount of ₱6.5 Million.
He averred:
6. To fully explain the valid and legal acquisition of the
foregoing listed property pointing out the sources of
funding, circumstances and details of acquisition, the
following information is related:
A. As to the acquisition of the lot covered by TCT No.
172168, located at Ayala Alabang, Muntinlupa, Metro
Manila, for ₱5,500,000.00 on October 9, 1990.
Respondent’s sources for the ₱5,500,000.00 were:
a. Interest from his money market placements up to
September 30, 1990 --------------₱2,404,643
b. Partial liquidation of money market placements
-------------------------------------------------₱3,095,357
Total -----------------------------------------₱5,500,000
A brief historical narration of the money placements
made by Respondent is included in the "Report on the
Statement of Net Worth of Com. Jose U. Ong
Calendar Year 1989 to 1991," submitted by him to the
Office of the Ombudsman, on or about March 24,
1992.
After the acquisition of the above property,
Respondent’s money market placements were
reduced to P4,365,834 (inclusive of interest which
was not used to finance the above acquisition, and
which remaining balance was rolled over as part of
the placements.
B. As to the acquisition of the lot covered by TCT No.
173386, located at Ayala Alabang, Muntinlupa, Metro
Manila, on December 3, 1990, for ₱5,055,000.00.
Respondent was offered this lot, and finding the same
to be a good investment, he obtained a loan from the
Allied Banking Corporation for ₱6,500,000.00.
₱5,500,000 was used by him in the purchase of the
above property. Respondent’s credit worthiness is self
evident from his Statement of Assets and Liabilities as
of end of December, 1989 where his net worth is duly
reflected to be ₱10.9 Million.
Xerox copy of the Certification executed by the
Corporate Secretary of Allied Banking Corporation
attesting to the grant of a five (5) year Term Loan of
P6.5 Million pesos to Respondent on October 24,
1990, is attached and incorporated as Annex "3".
C. As to the acquisition of the lot covered by TCT No.
173760, located at Ayala Alabang, Muntinlupa, Metro
Manila, on January 16, 1991, for ₱4,675,000.00.
After the acquisition of the property described in the
next preceding sub-paragraph B, Respondent had
available investible funds, money market placements,
in the total sum of ₱5,894,815.00, the details of which
are as follows:
Balance of Money Market placements after
acquisition of the property covered by TCT No.
173386 ------------ 4,365,834.00
Interest earned in the above money market
placements up to December 31, 1990
------------------------ 83,981.00
Unused portion of the loan of ₱6.5 Million ----
………………………………………………….
₱1,445,000.00
Total --------------------------- ……………..₱5,894,815.00
From the foregoing balance of ₱5,894,815.00, came
the P4,375,000.00 with which Respondent purchased
the real property covered by TCT No. 173760. There
remained a balance of ₱1,219,815.00.
D. As to the acquisition in Respondent’s name of the
lot at Ayala Alabang, Muntinlupa, Metro Manila,
covered by TCT No. 173901, on July 1, 1990.
This is an acquisition that had to be made in
Respondent’s name for the benefit of Hamplish D.
Mercado (respondent’s brother-in-law) and Florentina
S. Mercado, Filipino/Americans, both residents of
Persippany, New Jersey, U.S.A. The funding of this
purchase came from Hamplish D. Mercado who
previously left funds with Respondent for the purpose
of acquiring suitable property where the Mercado
spouses could stay when they return to the
Philippines upon retirement. Due to circumstances
prevailing at the time when the sale was executed, it
was done in the name of Respondent and his wife.
Respondent immediately thereafter executed an
Acknowledgment of Trust stating the aforementioned
fact, duly notarized under date of 5 February 1991.
Respondent has likewise executed and signed a
Deed of Absolute Sale, confirming the truth of all the
foregoing. Xerox copy of the said Acknowledgment of
Trust dated February 5, 1991, and the duly signed
Deed of Absolute Sale still undated, are hereto
attached as Annexes "4" and "4-A", respectively.
E. As to the alleged acquisition of the lot at Makati,
Metro Manila, covered by TCT No. 171210 on July 1,
1990 for ₱832,000.00.
Regarding the aforementioned alleged acquisition,
there was even an acknowledgment of error in the
very making of the charge. Suffice it just to say that
the Fact-Finding Report itself stated, "Hence, the
accusation that it was Com. Ong who provided funds
for such acquisition is DEVOID of merit."
F. As to the acquisition of Condominium Unit covered
by CCT No. 20785.
Though not included in the Complaint-Affidavit, this
was added by Investigator Soguilon, and who
unilaterally and arbitrarily declared its acquisition by
Respondent as coming from illegal means without
affording Respondent his constitutional right to due
process. Had respondent been afforded the
opportunity to comment on the acquisition of subject
Condominium Unit, he could have readily explained
the purchase price of ₱744,585.00. Under No. 6-C of
this statement, it appears that there still remained an
unused balance of ₱1,219,815.60. Thus, even
Respondent’s remaining investible funds easily
covered the purchase price.
He acknowledges the unintentional omission of the
Condominium Unit in the listing of the same in his
Statements of Assets and Liabilities. However, as
explained in the preceding paragraph the acquisition
cost of ₱744,585.00 is well within his readily available
balance for investment after the acquisition of the
property covered by TCT No. 173760, which is
₱1,219,815.60.35
Even as petitioners denied the allegation in the
petition for forfeiture that Nelly Ong has no visible
means of income with which she could have
purchased the questioned assets, there is neither
indication nor pretense that Nelly Ong had a hand in
the acquisition of the properties. Jose Ong clearly
declared that he purchased the properties
with his retirement funds, money market placements,
and proceeds from a bank loan. Whatever defenses
which Nelly Ong could have raised relative to the
sources of funds used in the purchase of the
questioned assets are deemed waived owing to the
fact that they are subsumed in the submissions of her
husband. Hence, even if she is entitled to a
preliminary investigation, such an inquiry would be an
empty ceremony.
We now consider Ong’s allegations of bias and
prejudice exhibited by the Ombudsman during the
preliminary investigation.
A perusal of the records reveals that the Graft
Investigation Officer duly considered Ong’s
explanation as to the sources of funds with which he
acquired the questioned assets. His averment that he
received retirement benefits from the SGV was
understandably disregarded because the only
supporting document he presented then was the
certification of the controller of SGV to the effect that
he received such benefits. Ong was likewise unable
to substantiate his claim that he had money market
placements as he did not present any document
evidencing such placements. Further, apart from a
certification from the corporate secretary of Allied
Bank to the effect that he obtained a loan from the
said bank, no other document, e.g., loan application,
credit investigation report, loan approval, schedule of
loan releases, real estate mortgage document,
promissory notes, cancelled checks, receipts for
amortization payments, and statement of account,
was presented to support the claim.
Ong was even given the opportunity to present the
documents in his possession relevant to the approval
of the Allied Bank loan, his receipt of retirement
benefits from SGV, and money market placements
which would have validated his assertion that all the
questioned acquisitions were from legitimate
sources.36 Up to this point, therefore, we find that the
Ombudsman did not make any unwarranted
conclusions or proceed with arbitrariness in the
conduct of the preliminary inquiry.
However, Ong calls the Court’s attention to the fact
that he was not notified of the subpoenas duces
tecum ad testificandum apparently issued to SGV,
Allied Bank and the BIR and the proceedings taken
thereon. This objection was raised in
his Motion37 dated February 17, 1993, which was,
unfortunately, perfunctorily denied.
The Rules of Procedure of the Office of the
Ombudsman38 provides that the "preliminary
investigation of cases falling under the jurisdiction of
the Sandiganbayan and Regional Trial Court shall be
conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the
following provisions:
… Allied Bank and the BIR.
(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
witness 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."
Ong, therefore, should have been notified of
the subpoenas duces tecum ad testificandum issued
to SGV, Allied Bank and the BIR. Although there is no
indication on record that clarificatory hearings were
conducted pursuant to the subpoenas, Ong is entitled
to be notified of the proceedings and to be present
thereat. The fact that he was not so notified is a denial
of fundamental fairness which taints the preliminary
investigation.
So, too, did the fact that Ong was not served a copy
of the Resolution directing the filing of a petition for
forfeiture deprive him of his statutory right to be
furnished with a copy of the Resolution to file a
petition for forfeiture and to file a motion for
reconsideration therefrom with the Ombudsman within
five (5) days from receipt of such Resolution pursuant
to Sec. 27 of RA 6770. The law provides:
Sec. 27. Effectivity and Finality of Decisions.—(1) All
provisionary orders of the Office of the Ombudsman
are immediately effective and executory.
A motion for reconsideration of any order, directive or
decision of the Office of the Ombudsman must be
filed within five (5) days after receipt of written notice .
...
For these reasons, we find that the Sandiganbayan, in
its second assailed Resolution, correctly ordered the
Ombudsman to immediately furnish petitioners a copy
of the Resolution to file the petition for forfeiture, and
gave petitioners a period of five (5) days from receipt
of such Resolution within which to file a motion for
reconsideration. Although the second
Sandiganbayan Resolution was only intended to
remedy the Ombudsman’s failure to give petitioners a
copy of the Resolution to file the petition for forfeiture,
it would also have served to cure the Ombudsman’s
failure to notify petitioners of the issuance
of subpoenas duces tecum ad testificandum to SGV,
Instead of awaiting the Ombudsman’s compliance
with the Resolution and filing their motion for
reconsideration therefrom, however, petitioners opted
to go directly to this Court. With this maneuver,
petitioners effectively deprived themselves of an
avenue of redress with the Sandiganbayan. They are
deemed to have waived their right to avail of the
remedy afforded by the second Resolution.
The next question is whether we should direct the
Ombudsman to rectify the errors committed during the
preliminary investigation, i.e., the failure to give Ong
notice of the subpoenas issued to SGV, Allied Bank
and the BIR and notice of the Resolution directing the
filing of the petition for forfeiture.
To so order the Ombudsman at this point would no
longer serve any useful purpose and would only
further delay the proceedings in this case. Verily,
petitioners have been allowed to fully plead their
arguments before this Court. After all has been said,
this case should now be allowed to proceed in its
course.
Nonetheless, we find this an opportune time to
admonish the Ombudsman to be more circumspect in
its conduct of preliminary investigation to the end that
participants therein are accorded the full measure of
their rights under the Constitution and our laws.
The other issues raised by petitioners concern the
alleged disqualification of the Ombudsman to file a
petition for forfeiture considering that it also
conducted the preliminary investigation to determine
probable cause. According to petitioners, the duality
of the functions of the Ombudsman, as investigator
and prosecutor, impairs its ability to act as a fair and
impartial magistrate in the determination of probable
cause.
Petitioners are the first to agree that the Ombudsman
is vested with jurisdiction to investigate and prosecute
any act or omission of a public officer or employee
when such act or omission appears to be illegal,
unjust, improper or inefficient. They recognize that the
Ombudsman has primary jurisdiction over cases,
such as the present one, cognizable by the
Sandiganbayan.
The problem with petitioners’ contention is their
assumption that the Ombudsman, a constitutionally-
created body, will not perform its functions faithfully.
The duality of roles which the Ombudsman exercises
does not necessarily warrant a conclusion that it will
be given to making a finding of probable cause in
every case.
At any rate, "[I]n the debates on this matter in the
Constitutional Commission, it was stressed by the
sponsors of the Office of the Ombudsman that,
whereas the original Tanodbayan was supposed to be
limited to the function of prosecution of cases against
public functionaries, generally for graft and corruption,
the former would be considered ‘the champion of the
citizen,’ to entertain complaints addressed to him and
to take all necessary action thereon." 39 This should
leave no doubt as regards the constitutionality and
propriety of the functions exercised by the
Ombudsman in this case.
Verily, the Court in Republic v.
Sandiganbayan,40 reviewed the powers of the
Ombudsman and held:
At present, the powers of the Ombudsman, as defined
by Republic Act No. 6770 corollary to Section 13,
Article XI of the 1987 Constitution, include, inter
alia, the authority 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 this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation
of such cases; and (2) investigate and intiate the
proper action for the recovery of ill-gotten wealth
and/or unexplained wealth amassed after February
25, 1986 and the prosecution of the parties involved
there.41
In the same case, we declared that the Ombudsman
has the correlative powers to investigate and initiate
the proper action for the recovery of ill-gotten and/or
unexplained wealth which were amassed after
February 25, 1986. There is therefore no merit in
petitioners’ contention that the absence of
participation of the OSG taints the petition for
forfeiture with nullity.
Finally, the attacks against the constitutionality of RA
1379 because it is vague, violates the presumption of
innocence and the right against self incrimination, and
breaches the authority and prerogative of the
Supreme Court to promulgate rules concerning the
protection and enforcement of constitutional rights,
are unmeritorious.
The law is not vague as it defines with sufficient
particularity unlawfully acquired property of a public
officer or employee as that "which is manifestly out of
proportion to his salary as such public officer or
employee and to his other lawful income and the
income from legitimately acquired property." It also
provides a definition of what is legitimately acquired
property. Based on these parameters, the public is
given fair notice of what acts are proscribed. The law,
therefore, does not offend the basic concept of
fairness and the due process clause of the
Constitution.
Neither is the presumption of innocence clause
violated by Sec. 2 of RA 1379 which states that
property acquired by a public officer or employee
during his incumbency in an amount which is
manifestly out of proportion to his salary as such
public officer or employee and to his other lawful
income and the income from legitimately acquired
property shall be presumed prima facie to have been
unlawfully acquired. As elaborated by Fr. Joaquin
Bernas, under the principle of presumption of
innocence, it is merely required of the State to
establish a prima facie case, after which the burden of
proof shifts to the accused.42 In People v.
Alicante,43 the Court held:
No rule has been better established in criminal law
than that every man is presumed to be innocent until
his guilt is proved beyond a reasonable doubt. In a
criminal prosecution, therefore, the burden is upon the
State to prove every fact and circumstance
constituting the crime charged, for the purpose of
showing the guilt of the accused.
While that is the rule, many of the States have
established a different rule and have provided that
certain facts only shall constitute prima
facie evidence, and that then the burden is put upon
the defendant to show or to explain that such facts or
acts are not criminal.
It has been frequently decided, in case of statutory
crimes, that no constitutional provision is violated by a
statute providing that proof by the State of some
material fact or facts shall constitute prima
facie evidence of guilt, and that then the burden is
shifted to the defendant for the purpose of showing
that such act or acts are innocent and are committed
without unlawful intention.
. . . The State having the right to declare what acts
are criminal, within certain well defined limitations,
has a right to specify what act or acts shall constitute
a crime, as well as what proof shall constitute prima
facie evidence of guilt, and then to put upon the
defendant the burden of showing that such act or acts
are innocent and are not committed with any criminal
intent or intention.44
The constitutional assurance of the right against self
incrimination likewise cannot be invoked by
petitioners. The right is a prohibition against the use
of physical or moral compulsion to extort
communications from the accused. It is simply a
prohibition against legal process to extract from the
accused’s own lips, against his will, admission of his
guilt.45 In this case, petitioners are not compelled to
present themselves as witnesses in rebutting the
presumption established by law. They may present
documents evidencing the purported bank loans,
money market placements and other fund sources in
their defense.
As regards the alleged infringement of the Court’s
authority to promulgate rules concerning the
protection and enforcement of constitutional rights,
suffice it to state that there is no showing that the
Ombudsman or the OSG is about to grant immunity to
anyone under RA 1379. The question, therefore, is
not ripe for adjudication.
WHEREFORE, the petition is hereby DISMISSED.
Costs against petitioners.
SO ORDERED.
DANTE O. TINGA Associate Justice
26) Estrada vs. Sandiganbayan [G.R. No. 148560,
November 19, 2001]
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty,
unleashes the full fury of his pen in defense of the
rights of the individual from the vast powers of the
State and the inroads of societal pressure. But even
as he draws a sacrosanct line demarcating the limits
on individuality beyond which the State cannot tread -
asserting that "individual spontaneity" must be
allowed to flourish with very little regard to social
interference - he veritably acknowledges that the
exercise of rights and liberties is imbued with a civic
obligation, which society is justified in enforcing at all
cost, against those who would endeavor to withhold
fulfillment. Thus he says -
The sole end for which mankind is warranted,
individually or collectively, in interfering with the liberty
of action of any of their number, is self-protection.
The only purpose for which power can be rightfully
exercised over any member of a civilized community,
against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and
illimitable right of the State to self-preservation. With
the end of maintaining the integrity and cohesiveness
of the body politic, it behooves the State to formulate
a system of laws that would compel obeisance to its
collective wisdom and inflict punishment for non-
observance.
The movement from Mill's individual liberalism to
unsystematic collectivism wrought changes in the
social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies.
In the process, the web of rights and State
impositions became tangled and obscured, enmeshed
in threads of multiple shades and colors, the skein
irregular and broken. Antagonism, often outright
collision, between the law as the expression of the will
of the State, and the zealous attempts by its members
to preserve their individuality and dignity, inevitably
followed. It is when individual rights are pitted against
State authority that judicial conscience is put to its
severest test.
Petitioner Joseph Ejercito Estrada, the highest-
ranking official to be prosecuted under RA 7080 (An
Act Defining and Penalizing the Crime of Plunder), as 1 
amended by RA 7659, wishes to impress upon us that
2 
the assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the
valid from the constitutionally infirm. He therefore
makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice
of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it
abolishes the element of mens rea in crimes already
punishable under The Revised Penal Code, all of
which are purportedly clear violations of the
fundamental rights of the accused to due process and
to be informed of the nature and cause of the
accusation against him.
Specifically, the provisions of the Plunder Law
claimed by petitioner to have transgressed
constitutional boundaries are Secs. 1, par. (d), 2 and
4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any
asset, property, business, enterprise or material
possession of any person within the purview of
Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents,
subordinates and/or business associates by any
combination or series of the following means or
similar schemes:
(1) Through misappropriation, conversion,
misuse, or malversation of public funds or
raids on the public treasury;
(2) By receiving, directly or indirectly, any
commission, gift, share, percentage,
kickbacks or any other form of pecuniary
benefit from any person and/or entity in
connection with any government contract or
project or by reason of the office or position of
the public office concerned;
(3) By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government or any of its subdivisions,
agencies or instrumentalities, or government
owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting
directly or indirectly any shares of stock,
equity or any other form of interest or
participation including the promise of future
employment in any business enterprise or
undertaking;
(5) By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or
special interests; or
(6) By taking advantage of official position,
authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of
the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder,
Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by
affinity or consanguinity, business associates,
subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal
acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million
pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua
to death. Any person who participated with the said
public officer in the commission of an offense
contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of
penalties, the degree of participation and the
attendance of mitigating and extenuating
circumstances as provided by the Revised Penal
Code shall be considered by the court. The court
shall declare any and all ill-gotten wealth and their
interests and other incomes and assets including the
properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the
State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act
done by the accused in furtherance of the scheme
or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful
scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed
before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558,
for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for
violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and
3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No.
26563, for violation of Sec. 7, par. (d), of RA 6713
(The Code of Conduct and Ethical Standards for
Public Officials and Employees); (d) Crim. Case No.
26564, for Perjury (Art. 183 of The Revised Penal
Code); and, (e) Crim. Case No. 26565, for Illegal Use
Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus
Motion for the remand of the case to the Ombudsman
for preliminary investigation with respect to
specification "d" of the charges in the Information in
Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an
opportunity to file counter-affidavits and other
documents necessary to prove lack of probable
cause. Noticeably, the grounds raised were only lack
of preliminary investigation,
reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the
vagueness of the law under which they are charged
were never raised in that Omnibus Motion thus
indicating the explicitness and comprehensibility of
the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division,
issued a Resolution in Crim. Case No. 26558 finding
that "a probable cause for the offense of PLUNDER
exists to justify the issuance of warrants for the arrest
of the accused." On 25 June 2001 petitioner's motion
for reconsideration was denied by the
Sandiganbayan.
On 14 June 2001 petitioner moved to quash the
Information in Crim. Case No. 26558 on the ground
that the facts alleged therein did not constitute an
indictable offense since the law on which it was based
was unconstitutional for vagueness, and that the
Amended Information for Plunder charged more than
one (1) offense. On 21 June 2001 the Government
filed its Opposition to the Motion to Quash, and five
(5) days later or on 26 June 2001 petitioner submitted
his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral
arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a)
The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for
proving the predicate crimes of plunder and therefore
violates the rights of the accused to due process; and,
(c) Whether Plunder as defined in RA 7080 is
a malum prohibitum, and if so, whether it is within the
power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is
presumed to be in harmony with the
Constitution. Courts invariably train their sights on this
3 
fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to
encroach upon the duties and powers of another.
Thus it has been said that the presumption is based
on the deference the judicial branch accords to its
coordinate branch - the legislature.
If there is any reasonable basis upon which the
legislation may firmly rest, the courts must assume
that the legislature is ever conscious of the borders
and edges of its plenary powers, and has passed the
law with full knowledge of the facts and for the
purpose of promoting what is right and advancing the
welfare of the majority. Hence in determining whether
the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial
restraint and act with caution and forbearance. Every
intendment of the law must be adjudged by the courts
in favor of its constitutionality, invalidity being a
measure of last resort. In construing therefore the
provisions of a statute, courts must first ascertain
whether an interpretation is fairly possible to sidestep
the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon we 4 
held that as long as there is some basis for the
decision of the court, the constitutionality of the
challenged law will not be touched and the case will
be decided on other available grounds. Yet the force
of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and
palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the
positive commands of the fundamental law be unduly
eroded.
Verily, the onerous task of rebutting the presumption
weighs heavily on the party challenging the validity of
the statute. He must demonstrate beyond any tinge of
doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be
no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain." And petitioner
5 
has miserably failed in the instant case to discharge
his burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains
ascertainable standards and well-defined parameters
which would enable the accused to determine the
nature of his violation. Section 2 is sufficiently explicit
in its description of the acts, conduct and conditions
required or forbidden, and prescribes the elements of
the crime with reasonable certainty and particularity.
Thus -
 1. That the offender is a public officer who
acts by himself or in connivance with
members of his family, relatives by affinity or
consanguinity, business associates,
subordinates or other persons;
2. That he amassed, accumulated or acquired
ill-gotten wealth through a combination or
series of the following overt or criminal acts:
(a) through misappropriation, conversion,
misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving,
directly or indirectly, any commission, gift,
share, percentage, kickback or any other form
of pecuniary benefits from any person and/or
entity in connection with any government
contract or project or by reason of the office or
position of the public officer; (c) by the illegal
or fraudulent conveyance or disposition of
assets belonging to the National Government
or any of its subdivisions, agencies or
instrumentalities of Government owned or
controlled corporations or their subsidiaries;
(d) by obtaining, receiving or accepting
directly or indirectly any shares of stock,
equity or any other form of interest or
participation including the promise of future
employment in any business enterprise or
undertaking; (e) by establishing agricultural,
industrial or commercial monopolies or other
combinations and/or implementation of
decrees and orders intended to benefit
particular persons or special interests; or (f)
by taking advantage of official position,
authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of
the Filipino people and the Republic of the
Philippines; and,
3. That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated or
acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible
guide or rule that would inform those who are subject
to it what conduct would render them liable to its
penalties, its validity will be sustained. It must
sufficiently guide the judge in its application; the
counsel, in defending one charged with its violation;
and more importantly, the accused, in identifying the
realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed
statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least
₱50,000,000.00 through a series or combination of
acts enumerated in Sec. 1, par. (d), of the Plunder
Law.
In fact, the amended Information itself closely tracks
the language of the law, indicating with reasonable
certainty the various elements of the offense which
petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-
Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,'
together with Jose 'Jinggoy' Estrada, Charlie 'Atong'
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
and John DOES & Jane Does, of the crime of
Plunder, defined and penalized under R.A. No. 7080,
as amended by Sec. 12 of R.A. No. 7659, committed
as follows:
That during the period from June, 1998 to January
2001, in the Philippines, and within the jurisdiction of
this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY wit
h his co-accused, WHO ARE MEMBERS OF HIS
FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there
willfully, unlawfully and criminally amass, accumulate
and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate
amount or TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF
OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS,
described as follows:
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT OF
FIVE HUNDRED FORTY-FIVE MILLION
PESOS (₱545,000,000.00), MORE OR LESS,
FROM ILLEGAL GAMBLING IN THE FORM
OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT, BY HIMSELF AND/OR in
connection with co-accused CHARLIE
'ATONG' ANG, Jose 'Jinggoy' Estrada,
Yolanda T. Ricaforte, Edward Serapio, AND
JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING,
misappropriating,
converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in
the amount of ONE HUNDRED THIRTY
MILLION PESOS (₱130,000,000.00), more or
less, representing a portion of the TWO
HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under
R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie 'Atong'
Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR
HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000
SHARES OF STOCKS, MORE OR LESS,
and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE
OR LESS, OF THE BELLE CORPORATION
IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION
NINE HUNDRED SIXTY FIVE THOUSAND
SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (₱1,102,965,607.50) AND
MORE OR LESS SEVEN HUNDRED FORTY
FOUR MILLION SIX HUNDRED TWELVE
THOUSAND AND FOUR HUNDRED FIFTY
PESOS (₱744,612,450.00), RESPECTIVELY,
OR A TOTAL OF MORE OR LESS ONE
BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND
FIFTY CENTAVOS (₱1,847,578,057.50);
AND BY COLLECTING OR RECEIVING,
DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, COMMISSIONS
OR PERCENTAGES BY REASON OF SAID
PURCHASES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (₱189,700,000.00)
MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF
THE DEPOSIT IN THE EQUITABLE-PCI
BANK UNDER THE ACCOUNT NAME
'JOSE VELARDE;'
(d) by unjustly enriching himself FROM
COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY
FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND
JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED
FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS
(₱3,233,104,173.17) AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI
BANK."
We discern nothing in the foregoing that is vague or
ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the
elements of the crime are easily understood and
provide adequate contrast between the innocent and
the prohibited acts. Upon such unequivocal
assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare
for an intelligent defense.
Petitioner, however, bewails the failure of the law to
provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found
in Sec. 1, par. (d), and Sec. 2, and the word "pattern"
in Sec. 4. These omissions, according to petitioner,
render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the
accusation against him, hence, violative of his
fundamental right to due process.
The rationalization seems to us to be pure sophistry.
A statute is not rendered uncertain and void merely
because general terms are used therein, or because
of the employment of terms without defining
them; much less do we have to define every word we
6 
use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define
each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and
its inability to so define the words employed in a
statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is
clear, or at least, can be gathered from the whole act,
which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be
interpreted in their natural, plain and ordinary
acceptation and signification, unless it is evident that
7 
the legislature intended a technical or special legal
meaning to those words. The intention of the
8 
lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in
such a manner is always presumed. Thus, Webster's
New Collegiate Dictionary contains the following
commonly accepted definition of the words
"combination" and "series:"
Combination - the result or product of combining; the
act or process of combining. To combine is to bring
into such close relationship as to obscure individual
characters.
Series - a number of things or events of the same
class coming one after another in spatial and
temporal succession.
That Congress intended the words "combination" and
"series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on
the bill which eventually became RA 7080 or the
Plunder Law:
DELIBERATIONS OF THE BICAMERAL
COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our
definition of plunder. We say THROUGH A
COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION
ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means,
we mean to say that number one and two or number
one and something else are included, how about a
series of the same act? For example, through
misappropriation, conversion, misuse, will these be
included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a
combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems
that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that
two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but
combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we
say combination, we mean, two different acts. It
cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated,
so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination.
Because when we say combination or series, we
seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from
ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may
fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x
xx
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term
"series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will
not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two
different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6
June 1989
SENATOR MACEDA: In line with our interpellations
that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would
the Sponsor consider deleting the words "a series of
overt or," to read, therefore: "or conspiracy
COMMITTED by criminal acts such as." Remove the
idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TANADA: That would mean a combination
of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies
several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to
be prosecuted under the particular crime. But when
we say "acts of plunder" there should be, at least, two
or more.
SENATOR ROMULO: In other words, that is already
covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination,"
it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec.
1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of
assets belonging to the National Government under
Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must
be two (2) or more overt or criminal acts falling under
the same category of enumeration found in Sec. 1,
par. (d), say, misappropriation, malversation and raids
on the public treasury, all of which fall under Sec. 1,
par. (d), subpar. (1). Verily, had the legislature
intended a technical or distinctive meaning for
"combination" and "series," it would have taken
greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan that this term is sufficiently defined in
9 
Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists
of at least a combination or series of overt or criminal
acts enumerated in subsections (1) to (6) of Sec. 1
(d). Secondly, pursuant to Sec. 2 of the law, the
pattern of overt or criminal acts is directed towards a
common purpose or goal which is to enable the public
officer to amass, accumulate or acquire ill-gotten
wealth. And thirdly, there must either be an 'overall
unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term
'overall unlawful scheme' indicates a 'general plan of
action or method' which the principal accused and
public officer and others conniving with him follow to
achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or
where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form
part of a conspiracy to attain a common goal.
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
10 
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
11 
doctrine cannot be invoked where the assailed statute
is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is
void for uncertainty is whether the language conveys
a sufficiently definite warning as to the proscribed
conduct when measured by common understanding
and practice. It must be stressed, however, that the
12 
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely
because it might have been more explicit in its
wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be
impossible to provide all the details in advance as in
all other statutes.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza
during the deliberations of the Court that the
allegations that the Plunder Law is vague and
overbroad do not justify a facial review of its validity -
The void-for-vagueness doctrine states that "a statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due process
of law." The overbreadth doctrine, on the other hand,
13  applied to the conduct of others." 19
decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms." 14
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all
society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making
the attack demonstrate that his own conduct could not
be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting
15  invalidated [only] 'as applied' to a particular
some unprotected speech to go unpunished is
outweighed by the possibility that the protected
speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory
effects of overly broad statutes.
This rationale does not apply to penal statutes.
Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law,
the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have
special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As
the U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of
the First Amendment." In Broadrick v. Oklahoma, the
16  17 
Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and,
again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to
protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the
challenger must establish that no set of
circumstances exists under which the Act would be
valid." As for the vagueness doctrine, it is said that a
18 
litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as
In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases
or, as they are called in American law, First
Amendment cases. They cannot be made to do
service when what is involved is a criminal statute.
With respect to such statute, the established rule is
that "one to whom application of a statute is
constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as
applying to other persons or other situations in which
its application might be unconstitutional." As has
20 
been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes
found vague as a matter of due process typically are
defendant." Consequently, there is no basis for
21 
petitioner's claim that this Court review the Anti-
Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court
whose activities are constitutionally protected. It 22 
constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions
to be made without concrete factual settings and in
sterile abstract contexts. But, as the U.S. Supreme
23 
Court pointed out in Younger v. Harris 24
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the
controversy, the impact on the legislative process of
the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of
case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of
statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a
last resort," and is generally disfavored. In
25  26 
determining the constitutionality of a statute,
therefore, its provisions which are alleged to have
been violated in a case must be examined in the light
of the conduct with which the defendant is charged. 27
In light of the foregoing disquisition, it is evident that
the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by
petitioner, is more imagined than real. Ambiguity,
where none exists, cannot be created by dissecting
parts and words in the statute to furnish support to
critics who cavil at the want of scientific precision in
the law. Every provision of the law should be
construed in relation and with reference to every other
part. To be sure, it will take more than nitpicking to
overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law.
A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators
who voted for its passage, petitioner must be aware
that the law was extensively deliberated upon by the
Senate and its appropriate committees by reason of
which he even registered his affirmative vote with full
knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan must 28 
be mentioned if only to illustrate and emphasize the
point that courts are loathed to declare a statute void
for uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no
reasonable construction that will support and give it
effect. In that case,
petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act for being vague. Petitioners
posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law
meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness,
Sec. 3, par. (e), violates due process in that it does
not give fair warning or sufficient notice of what it
seeks to penalize. Petitioners further argued that the
Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits
through manifest partiality; (b) giving of "unwarranted"
benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official
function and that their right to be informed of the
nature and cause of the accusation against them was
violated because they were left to guess which of the
three (3) offenses, if not all, they were being charged
and prosecuted.
In dismissing the petition, this Court held that Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices
Act does not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident
bad faith," and "gross and inexcusable negligence"
merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute
may be committed, and the use of all these phrases in
the same Information does not mean that the
indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems
lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary,
p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice,
C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt
Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:
x x x or giving any private party any unwarranted
benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act
3019, as amended).
It is not at all difficult to comprehend that what the
aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official,
administrative or judicial functions, in giving any
private party benefits, advantage or preference which
is unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident
bad faith or gross inexcusable negligence.
In other words, this Court found that there was
nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act, which was understood in
its primary and general acceptation. Consequently, in
that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly
stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when
it requires only proof of a pattern of overt or criminal
acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or
conspiracy.
The running fault in this reasoning is obvious even to
the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always
has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is
entitled to an acquittal. The use of the "reasonable
29  Now, when we add the totality of the other acts as
doubt" standard is indispensable to command the
respect and confidence of the community in the
application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of
proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our
free society that every individual going about his
ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense
without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard
has acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process
Clause which protects the accused against conviction
except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which he is
charged. The following exchanges between Rep.
30 
Rodolfo Albano and Rep. Pablo Garcia on this score
during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF
REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also
elementary in our criminal law that what is alleged in
the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty
of the other acts enumerated in the information, does
that not work against the right of the accused
especially so if the amount committed, say, by
falsification is less than ₱100 million, but the totality of
the crime committed is ₱100 million since there is
malversation, bribery, falsification of public document,
coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in
the information needs to be proved beyond
reasonable doubt. What is required to be proved
beyond reasonable doubt is every element of the
crime charged. For example, Mr. Speaker, there is an
enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt,
but these will not prevent the conviction of a crime for
which he was charged just because, say, instead of 3
pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond
reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but
considering that in the crime of plunder the totality of
the amount is very important, I feel that such a series
of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to
accumulate only ₱50,000 and in the crime of
extortion, he was only able to accumulate ₱1 million.
required under this bill through the interpretation on
the rule of evidence, it is just one single act, so how
can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for
purposes of proving an essential element of the
crime, there is a need to prove that element beyond
reasonable doubt. For example, one essential
element of the crime is that the amount involved is
₱100 million. Now, in a series of defalcations and
other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are
certain acts that could not be proved, so, we will sum
up the amounts involved in those transactions which
were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is
₱100 million, then there is a crime of
plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature
did not in any manner refashion the standard
quantum of proof in the crime of plunder. The burden
still remains with the prosecution to prove beyond any
iota of doubt every fact or element necessary to
constitute the crime.
The thesis that Sec. 4 does away with proof of each
and every component of the crime suffers from a
dismal misconception of the import of that provision.
What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to
form a combination or series which would constitute a
pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have
been committed by the accused in furtherance of the
overall unlawful scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an
Information for plunder with having committed fifty
(50) raids on the public treasury. The prosecution
need not prove all these fifty (50) raids, it being
sufficient to prove by pattern at least two (2) of the
raids beyond reasonable doubt provided only that
they amounted to at least ₱50,000,000.00. 31
A reading of Sec. 2 in conjunction with Sec. 4, brings
us to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme
or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth.
Stated otherwise, such pattern arises where the
prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d).
Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with
reason and common sense. There would be no other
explanation for a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or
more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a
deliberate and conscious effort to prove pattern as it
necessarily follows with the establishment of a series
or combination of the predicate acts.
Relative to petitioner's contentions on the purported
defect of Sec. 4 is his submission that "pattern" is "a
very important element of the crime of plunder;" and
that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime,"
such that without it the accused cannot be convicted
of plunder -
JUSTICE BELLOSILLO: In other words, cannot an
accused be convicted under the Plunder Law without
applying Section 4 on the Rule of Evidence if there is
proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of
individual crimes enumerated in the Revised Penal
Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the
elements of the crime are proved beyond reasonable
doubt without applying Section 4, can you not have a
conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your
Honor.
JUSTICE BELLOSILLO: Can you not disregard the
application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place
Section 4 lays down a substantive element of the law
xxxx
JUSTICE BELLOSILLO: What I said is - do we have
to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting
plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4
is two pronged, it contains a rule of evidence and it
contains a substantive element of the crime of
plunder. So, there is no way by which we can avoid
Section 4.
JUSTICE BELLOSILLO: But there is proof beyond
reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go
that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that
Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the
prosecution. 32
We do not subscribe to petitioner's stand. Primarily,
all the essential elements of plunder can be culled
and understood from its definition in Sec. 2, in relation
to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4
is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4
does not define or establish any substantive right in
favor of the accused but only operates in furtherance
of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking
Sec. 4, a conviction for plunder may be had, for what
is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by
the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the
sake of argument that Sec. 4 is flawed and vitiated for
the reasons advanced by petitioner, it may simply be
severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all,
the existing rules on evidence can supplant Sec. 4
more than enough. Besides, Sec. 7 of RA 7080
provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions
of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions
of this Act and the application of such provisions to
other persons or circumstances shall not be affected
thereby.
Implicit in the foregoing section is that to avoid the
whole act from being declared invalid as a result of
the nullity of some of its provisions, assuming that to
be the case although it is not really so, all the
provisions thereof should accordingly be treated
independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.
As regards the third issue, again we agree with
Justice Mendoza that plunder is a malum in se which
requires proof of criminal intent. Thus, he says, in his
Concurring Opinion -
x x x Precisely because the constitutive crimes
are mala in se the element of mens rea must be
proven in a prosecution for plunder. It is noteworthy
that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and
criminally." It thus alleges guilty knowledge on the part
of petitioner.
In support of his contention that the statute eliminates
the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following
remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be
required to convict him would not be evidence for
each and every individual criminal act but only
evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder. 33
However, Senator Tañada was discussing §4 as
shown by the succeeding portion of the transcript
quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the
Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would
provide for a speedier and faster process of attending
to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . . 34
Senator Tañada was only saying that where the
charge is conspiracy to commit plunder, the
prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being
enough if it proves beyond reasonable doubt a pattern
of overt or ciminal acts indicative of the overall
unlawful scheme or conspiracy. As far as the acts
constituting the pattern are concerned, however, the
elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public
officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the
degree of participation and the attendance of
mitigating and extenuating circumstances, as
provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating
circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates
quite clearly that mens rea is an element of plunder
since the degree of responsibility of the offender is
determined by his criminal intent. It is true that §2
refers to "any person who participates with the said
public officer in the commission of an offense
contributing to the crime of plunder." There is no
reason to believe, however, that it does not apply as
well to the public officer as principal in the crime. As
Justice Holmes said: "We agree to all the generalities
about not supplying criminal laws with what they omit,
but there is no canon against using common sense in
construing laws as saying what they obviously
mean." 35
Finally, any doubt as to whether the crime of plunder
is a malum in se must be deemed to have been
resolved in the affirmative by the decision of
Congress in 1993 to include it among the heinous
crimes punishable by reclusion perpetua to death.
Other heinous crimes are punished with death as a
straight penalty in R.A. No. 7659. Referring to these
groups of heinous crimes, this Court held in People v.
Echegaray: 36
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is
treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her
growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in
death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes;
as well as murder, rape, parricide, infanticide,
kidnapping and serious illegal detention, where the
victim is detained for more than three days or serious
physical injuries were inflicted on the victim or threats
to kill him were made or the victim is a minor, robbery
with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner,
driver or occupant of the carnapped vehicle is killed or
raped, which are penalized by reclusion perpetua to
death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to
be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the
government and impoverished the population, the
Philippine Government must muster the political will to
dismantle the culture of corruption, dishonesty, greed
and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the
money to provide even the most basic services to its
people, any form of misappropriation or
misapplication of government funds translates to an
actual threat to the very existence of government, and
in turn, the very survival of the people it governs
over. Viewed in this context, no less heinous are the
effects and repercussions of crimes like qualified
bribery, destructive arson resulting in death, and drug
offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that
plunder is a heinous offense implies that it is a malum
in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se and
37 
it does not matter that such acts are punished in a
special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the
inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA
7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it
is now too late in the day for him to resurrect this long
dead issue, the same having been eternally
consigned by People v. Echegaray to the archives of
38 
jurisprudential history. The declaration of this Court
therein that RA 7659 is constitutionally valid stands as
a declaration of the State, and becomes, by
necessary effect, assimilated in the Constitution now
as an integral part of it.
Our nation has been racked by scandals of corruption
and obscene profligacy of officials in high places
which have shaken its very foundation. The anatomy
of graft and corruption has become more elaborate in
the corridors of time as unscrupulous people
relentlessly contrive more and more ingenious ways
to bilk the coffers of the government. Drastic and
radical measures are imperative to fight the
increasingly sophisticated, extraordinarily methodical
and economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially
designed to disentangle those ghastly tissues of
grand-scale corruption which, if left unchecked, will
spread like a malignant tumor and ultimately consume
the moral and institutional fiber of our nation. The
Plunder Law, indeed, is a living testament to the will
of the legislature to ultimately eradicate this scourge
and thus secure society against the avarice and other
venalities in public office.
These are times that try men's souls. In the checkered
history of this nation, few issues of national
importance can equal the amount of interest and
passion generated by petitioner's ignominious fall
from the highest office, and his eventual prosecution
and trial under a virginal statute. This continuing saga
has driven a wedge of dissension among our people
that may linger for a long time. Only by responding to
the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge
triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA
7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join
concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's
concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago,
JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring
opinion.
Carpio, J., no part. Was one of the complainants
before Ombudsman.
27) Ople vs. Torres [292 SCRA 141 (1998)]
PUNO, J.:
The petition at bar is a commendable effort on the
part of Senator Blas F. Ople to prevent the shrinking
of the right to privacy, which the revered Mr. Justice
Brandeis considered as "the most comprehensive of
rights and the right most valued by civilized
men."   Petitioner Ople prays that we invalidate
1 established.
Administrative Order No. 308 entitled "Adoption of
a National Computerized Identification Reference
System" on two important constitutional
grounds, viz: one, it is a usurpation of the power
of Congress to legislate, and two, it impermissibly
intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights
sought to be vindicated by the petitioner need
stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V.
Ramos On December 12, 1996 and reads as
follows:
ADOPTION OF A NATIONAL
COMPUTERIZED
IDENTIFICATION REFERENCE
SYSTEM
WHEREAS, there is a need to
provide Filipino citizens and foreign
residents with the facility to
conveniently transact business
with basic service and social
security providers and other
government instrumentalities;
WHEREAS, this will require a
computerized system to properly
and efficiently identify persons
seeking basic services on social
security and reduce, if not totally
eradicate fraudulent transactions
and misrepresentations;
WHEREAS, a concerted and
collaborative effort among the
various basic services and social
security providing agencies and
other government intrumentalities
is required to achieve such a
system;
NOW, THEREFORE, I, FIDEL V.
RAMOS, President of the Republic
of the Philippines, by virtue of the
powers vested in me by law, do
hereby direct the following:
Sec. 1. Establishment of a National
Compoterized Identification
Reference System. A decentralized
Identification Reference System
among the key basic services and
social security providers is hereby
Sec. 2. Inter-Agency Coordinating
Committee. An Inter-Agency
Coordinating Committee (IACC) to
draw-up the implementing
guidelines and oversee the
implementation of the System is
hereby created, chaired by the
Executive Secretary, with the
following as members:
Head, Presidential Management
Staff
Secretary, National Economic
Development Authority
Secretary, Department of the
Interior and Local Government
Secretary, Department of Health
Administrator, Government Service
Insurance System,
Administrator, Social Security
System,
Administrator, National Statistics
Office
Managing Director, National
Computer Center.
Sec. 3. Secretariat. The National
Computer Center (NCC) is hereby
designated as secretariat to the
IACC and as such shall provide
administrative and technical
support to the IACC.
 Sec. 4. Linkage Among Agencies.
The Population Reference Number
(PRN) generated by the NSO shall
serve as the common reference
number to establish a linkage
among concerned agencies. The
IACC Secretariat shall coordinate
with the different Social Security
and Services Agencies to establish
the standards in the use of
Biometrics Technology and in
computer application designs of
their respective systems.
Sec. 5. Conduct of Information
Dissemination Campaign. The
Office of the Press Secretary, in
coordination with the National
Statistics Office, the GSIS and SSS
as lead agencies and other
concerned agencies shall
undertake a massive tri-media
information dissemination
campaign to educate and raise
public awareness on the
importance and use of the PRN and
the Social Security Identification
Reference.
Sec. 6. Funding. The funds
necessary for the implementation
of the system shall be sourced from
the respective budgets of the
concerned agencies.
Sec. 7. Submission of Regular
Reports. The NSO, GSIS and SSS
shall submit regular reports to the
Office of the President through the
IACC, on the status of
implementation of this undertaking.
Sec. 8. Effectivity. This
Administrative Order shall take
effect immediately.
DONE in the City of Manila, this
12th day of December in the year of
Our Lord, Nineteen Hundred and
Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of
general circulation on January 22, 1997 and
January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents,
then Executive Secretary Ruben Torres and the
heads of the government agencies, who as
members of the Inter-Agency Coordinating
Committee, are charged with the implementation
of A.O. No. 308. On April 8, 1997, we issued a
temporary restraining order enjoining its
implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A
NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE
SYSTEM REQUIRES A
LEGISLATIVE ACT. THE ISSUANCE
OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES IS, THEREFORE,
AN UNCONSTITUTIONAL
USURPATION OF THE
LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC OF
THE PHILIPPINES.
B. THE APPROPRIATION OF
PUBLIC FUNDS BY THE
PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308
IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE
RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O.
NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM
WHICH WILL VIOLATE THE BILL
OF RIGHTS ENSHRINED IN THE
CONSTITUTION.  2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT
A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED
WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF
THE PRESIDENT WITHOUT
ENCROACHING ON THE
LEGISLATIVE POWERS OF
CONGRESS;
C. THE FUNDS NECESSARY FOR
THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE
SYSTEM MAY BE SOURCED FROM
 THE BUDGETS OF THE
CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS
AN INDIVIDUAL'S INTEREST IN
PRIVACY.  3
We now resolve.
I
As is usual in constitutional litigation,
respondents raise the threshold issues relating to
the standing to sue of the petitioner and the
justiciability of the case at bar. More specifically,
respondents aver that petitioner has no legal
interest to uphold and that the implementing rules
of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our
sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a
Senator, petitioner is possessed of the requisite
standing to bring suit raising the issue that the
issuance of A.O. No. 308 is a usurpation of
legislative power.   As taxpayer and member of the
4
Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the
misalignment of public funds and the misuse of
GSIS funds to implement A.O. No. 308.  5
The ripeness for adjudication of the Petition at bar
is not affected by the fact that the implementing
rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per
se and as infirmed on its face. His action is not
premature for the rules yet to be promulgated
cannot cure its fatal defects. Moreover, the
respondents themselves have started the
implementation of A.O. No. 308 without waiting for
the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused
the publication of a notice to bid for the
manufacture of the National Identification (ID)
card.   Respondent Executive Secretary Torres
6
has publicly announced that representatives from
the GSIS and the SSS have completed the
guidelines for the national identification
system.   All signals from the respondents show
7 As head of the Executive Department, the
their unswerving will to implement A.O. No. 308
and we need not wait for the formality of the rules
to pass judgment on its constitutionality. In this
light, the dissenters insistence that we tighten the
rule on standing is not a commendable stance as
its result would be to throttle an important
constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner
claims that A.O. No. 308 is not a mere
administrative order but a law and hence, beyond
the power of the President to issue. He alleges
that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope,
affects the life and liberty of every Filipino citizen
and foreign resident, and more particularly,
violates their right to privacy.
Petitioner's sedulous concern for the Executive
not to trespass on the 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,8
as the will of the people in their original,
sovereign and unlimited capacity, has vested this
power in the Congress of the Philippines.   The 9
grant of legislative power to Congress is broad,
general and comprehensive.   The legislative 10
body possesses plenary power for all purposes of
civil government.   Any power, deemed to be
11
legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution
has lodged it elsewhere.   In fine, except as
12
limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects
and extends to matters of general concern or
common interest.  13
While Congress is vested with the power to enact
laws, the President executes the laws.   The 14
executive power is vested in the Presidents.   It is 15
generally defined as the power to enforce and
administer the laws.   It is the power of carrying
16
the laws into practical operation and enforcing
their due observance.  17
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
18
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,
19
the President also has the duty of supervising the
enforcement of laws for the maintenance of
general peace and public order. Thus, he is
granted administrative power over bureaus and
offices under his control to enable him to
discharge his duties effectively.  20
Administrative power is concerned with the work
of applying policies and enforcing orders as
determined by proper governmental organs.   It
21
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
22
administrative orders, rules and regulations.
Prescinding from these precepts, we hold that
A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative
order. An administrative order is:
Sec. 3. Administrative Orders. —
Acts of the President which relate
to particular aspects of
governmental operation in
pursuance of his duties as
administrative head shall be
promulgated in administrative
orders.  23
An administrative order is an ordinance
issued by the President which relates to
specific aspects in the administrative
operation of government. It must be in
harmony with the law and should be for
the sole purpose of implementing the law
and carrying out the legislative
policy.   We reject the argument that A.O.
24
No. 308 implements the legislative policy
of the Administrative Code of 1987. The
Code is a general law and "incorporates in
a unified document the major structural,
functional and procedural principles of
governance."   and "embodies changes in
25
administrative structure and procedures
designed to serve the
people."   The Code is divided into seven
26
(7) Books: Book I deals with Sovereignty
and General Administration, Book II with
the Distribution of Powers of the three
branches of Government, Book III on the
Office of the President, Book IV on the
Executive Branch, Book V on
Constitutional Commissions, Book VI on
National Government Budgeting, and Book
VII on Administrative Procedure. These
Books contain provisions on the
organization, powers and general
administration of the executive, legislative
and judicial branches of government, the
organization and administration of
departments, bureaus and offices under
the executive branch, the organization and
functions of the Constitutional
Commissions and other constitutional
bodies, the rules on the national
government budget, as well as guideline
for the exercise by administrative agencies
of quasi-legislative and quasi-judicial
powers. The Code covers both the internal
administration of government, i.e, internal
organization, personnel and recruitment,
supervision and discipline, and the effects
of the functions performed by
administrative officials on private
individuals or parties outside
government.  27
It cannot be simplistically argued that A.O. No.
308 merely implements the Administrative Code
of 1987. It establishes for the first time a National
Computerized Identification Reference System.
Such a System requires a delicate adjustment of
various contending state policies — the primacy
of national security, the extent of privacy interest
against dossier-gathering by government, the
choice of policies, etc. Indeed, the dissent of Mr.
Justice Mendoza states that the A.O. No. 308
involves the all-important freedom of thought. As
said administrative order redefines the
parameters of some basic rights of our
citizenry vis-a-vis the State as well as the line that
separates the administrative power of the
President to make rules and the legislative power
of Congress, it ought to be evident that it deals
with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that
A.D. No. 308 is not a law because it confers no
right, imposes no duty, affords no proctection,
and creates no office. Under A.O. No. 308, a
citizen cannot transact business with government
agencies delivering basic services to the people
without the contemplated identification card. No
citizen will refuse to get this identification card for
no one can avoid dealing with government. It is
thus clear as daylight that without the ID, a citizen
will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the
contention that A.O. No. 308 gives no right and
imposes no duty cannot stand.
Again, with due respect, the dissenting opinions
unduly expand the limits of administrative
legislation and consequently erodes the plenary
power of Congress to make laws. This is contrary
to the established approach defining the
traditional limits of administrative legislation. As
well stated by Fisher: ". . . Many regulations
however, bear directly on the public. It is here that
administrative legislation must he restricted in its
scope and application. Regulations are not
supposed to be a substitute for the general
policy-making that Congress enacts in the form of
a public law. Although administrative regulations
are entitled to respect, the authority to prescribe
rules and regulations is not an independent
source of power to make laws."  28
III
Assuming, arguendo, that A.O. No. 308 need not
be the subject of a law, still it cannot pass
constitutional muster as an administrative
legislation because facially it violates the right to
privacy. The essence of privacy is the "right to be
let alone."   In the 1965 case of Griswold v.
29
Connecticut,   the United States Supreme Court
30
gave more substance to the right of privacy when
it ruled that the right has a constitutional
foundation. It held that there is a right of privacy
which can be found within the penumbras of the
First, Third, Fourth, Fifth and Ninth
Amendments,   viz: 31
Specific guarantees in the Bill of
Rights have penumbras formed by
emanations from these guarantees
that help give them life and
substance . . . various guarantees
create zones of privacy. The right of
association contained in the
penumbra of the First Amendment
is one, as we have seen. The Third
Amendment in its prohibition
against the quartering of soldiers
"in any house" in time of peace
without the consent of the owner is
another facet of that privacy. The
Fourth Amendment explicitly
affirms the ''right of the people to
be secure in their persons, houses
and effects, against unreasonable
searches and seizures." The Fifth
Amendment in its Self-Incrimination
Clause enables the citizen to create
a zone of privacy which
government may not force him to
surrender to his detriment. The
Ninth Amendment provides: "The
enumeration in the Constitution, of
certain rights, shall not be
construed to deny or disparage
others retained by the people."
In the 1968 case of Morfe v. Mutuc,   we 32
adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking
thru Mr. Justice, later Chief Justice,
Enrique Fernando, we held:
x x x           x x x          x x x
The Griswold case invalidated a
Connecticut statute which made the
use of contraceptives a criminal
offence on the ground of its
amounting to an unconstitutional
invasion of the right of privacy of
married persons; rightfully it
stressed "a relationship lying
within the zone of privacy created
by several fundamental
constitutional guarantees." It has
wider implications though. The
constitutional right to privacy has
come into its own.
So it is likewise in our jurisdiction.
The right to privacy as such is
accorded recognition
independently of its identification
with liberty; in itself, it is fully
deserving of constitutional
protection. The language of Prof.
Emerson is particularly apt: "The
concept of limited government has
always included the idea that
governmental powers stop short of
certain intrusions into the personal
life of the citizen. This is indeed one
of the basic distinctions between
absolute and limited government.
Ultimate and pervasive control of
the individual, in all aspects of his
life, is the hallmark of the absolute
state. In contrast, a system of
limited government safeguards a
private sector, which belongs to the
individual, firmly distinguishing it
from the public sector, which the
state can control. Protection of this
private sector — protection, in
other words, of the dignity and
integrity of the individual — has
become increasingly important as
modern society has developed. All
the forces of a technological age —
industrialization, urbanization, and
organization — operate to narrow
the area of privacy and facilitate
intrusion into it. In modern terms,
the capacity to maintain and
support this enclave of private life
 marks the difference between a
democratic and a totalitarian
society."
Indeed, if we extend our judicial gaze we will find
that the right of privacy is recognized and
enshrined in several provisions of our
Constitution.   It is expressly recognized in
33
section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of
communication and
correspondence shall be inviolable
except upon lawful order of the
court, or when public safety or
order requires otherwise as
prescribed by law.
Other facets of the right to privacy are
protectad in various provisions of the Bill
of Rights, viz:  34
Sec. 1. No person shall be deprived
of life, liberty, or property without
due process of law, nor shall any
person be denied the equal
protection of the laws.
Sec. 2. The right of the people to be
secure in their persons, houses
papers, and effects against
unreasonable searches and
seizures of whatever nature and for
any purpose shall be inviolable,
and no search warrant or warrant of
arrest shall issue except upon
probable cause to be determined
personally by the judge after
examination under oath or
affirmation of the complainant and
the witnesses he may produce, and
particularly describing the place to
be searched and the persons or
things to be seized.
x x x           x x x          x x x
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.
x x x           x x x          x x x
Sec. 8. The right of the people,
including those employed in the
public and private sectors, to form
unions, associations, or societies
for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be
compelled to be a witness against
himself.
Zones of privacy are likewise recognized and
protected in our laws. The Civil Code provides
that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons" and punishes as
actionable torts several acts by a person of
meddling and prying into the privacy of
another.   It also holds a public officer or
35
employee or any private individual liable for
damages for any violation of the rights and
liberties of another person,   and recognizes the
36
privacy of letters and other private
communications.   The Revised Penal Code
37
makes a crime the violation of secrets by an
officer,   the revelation of trade and industrial
38
secrets,   and trespass to dwelling.   Invasion of
39 40
privacy is an offense in special laws like the Anti-
Wiretapping Law,   the Secrecy of Bank Deposits
41
Act   and the Intellectual Property Code.   The
42 43
Rules of Court on privileged communication
likewise recognize the privacy of certain
information.  44
Unlike the dissenters, we prescind from the
premise that the right to privacy is a fundamental
right guaranteed by the Constitution, hence, it is
the burden of government to show that A.O. No.
308 is justified by some compelling state interest
and that it is narrowly drawn. A.O. No. 308 is
predicated on two considerations: (1) the need to
provides our citizens and foreigners with the
facility to conveniently transact business with
basic service and social security providers and
other government instrumentalities and (2) the
need to reduce, if not totally eradicate, fraudulent
transactions and misrepresentations by persons
seeking basic services. It is debatable whether
these interests are compelling enough to warrant
the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented
will put our people's right to privacy in clear and
present danger.
The heart of A.O. No. 308 lies in its Section 4
which provides for a Population Reference
Number (PRN) as a "common reference number to
establish a linkage among concerned agencies"
through the use of "Biometrics Technology" and
"computer application designs."
Biometry or biometrics is "the science of the
applicatin of statistical methods to biological
facts; a mathematical analysis of biological
data."   The term "biometrics" has evolved into a
45
broad category of technologies which provide
precise confirmation of an individual's identity
through the use of the individual's own
physiological and behavioral characteristics.   A 46
physiological characteristic is a relatively stable
physical characteristic such as a fingerprint,
retinal scan, hand geometry or facial features. A
behavioral characteristic is influenced by the
individual's personality and includes voice print,
signature and keystroke.   Most biometric
47
idenfication systems use a card or personal
identificatin number (PIN) for initial identification.
The biometric measurement is used to verify that
the individual holding the card or entering the PIN
is the legitimate owner of the card or PIN.  48
A most common form of biological encoding is
finger-scanning where technology scans a
fingertip and turns the unique pattern therein into
an individual number which is called a biocrypt.
The biocrypt is stored in computer data
banks   and becomes a means of identifying an
49
individual using a service. This technology
requires one's fingertip to be scanned every time
service or access is provided.   Another method
50
is the retinal scan. Retinal scan technology
employs optical technology to map the capillary
pattern of the retina of the eye. This technology
produces a unique print similar to a finger
print.   Another biometric method is known as the
51
"artificial nose." This device chemically analyzes
the unique combination of substances excreted
from the skin of people.   The latest on the list of
52
biometric achievements is the thermogram.
Scientists have found that by taking pictures of a
face using infra-red cameras, a unique heat
distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat
signature."  53
In the last few decades, technology has
progressed at a galloping rate. Some science
fictions are now science facts. Today, biometrics
is no longer limited to the use of fingerprint to
identify an individual. It is a new science that uses
various technologies in encoding any and all
biological characteristics of an individual for
identification. It is noteworthy that A.O. No. 308
does not state what specific biological
characteristics and what particular biometrics
technology shall be used to identify people who
will seek its coverage. Considering the banquest
of options available to the implementors of A.O.
No. 308, the fear that it threatens the right to
privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a
further look will show that it does not state
whether encoding of data is limited to biological
information alone for identification purposes. In
fact, the Solicitor General claims that the adoption
of the Identification Reference System will
contribute to the "generation of population data
for development planning."   This is an admission
54
that the PRN will not be used solely for
identification but the generation of other data with
remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O. No. 308
can give the government the roving authority to
store and retrieve information for a purpose other
than the identification of the individual through
his PRN.
The potential for misuse of the data to be
gathered under A.O. No. 308 cannot be
undarplayed as the dissenters do. Pursuant to
said administrative order, an individual must
present his PRN everytime he deals with a
government agency to avail of basic services and
security. His transactions with the government
agency will necessarily be recorded — whether it
be in the computer or in the documentary file of
the agency. The individual's file may include his
transactions for loan availments, income tax
returns, statement of assets and liabilities,
reimbursements for medication, hospitalization,
etc. The more frequent the use of the PRN, the
better the chance of building a huge formidable
informatin base through the electronic linkage of
the files.   The data may be gathered for gainful
55
and useful government purposes; but the
existence of this vast reservoir of personal
information constitutes a covert invitation to
misuse, a temptation that may be too great for
some of our authorities to resist. 
56
We can even grant, arguendo, that the computer
data file will be limited to the name, address and
other basic personal infomation about the
individual.   Even that hospitable assumption will
57
not save A.O. No. 308 from constitutional infirmity
for again said order does not tell us in clear and
categorical terms how these information gathered
shall he handled. It does not provide who shall
control and access the data, under what
circumstances and for what purpose. These
factors are essential to safeguard the privacy and
guaranty the integrity of the information.   Well to
58
note, the computer linkage gives other
government agencies access to the information.
Yet, there are no controls to guard against
leakage of information. When the access code of
the control programs of the particular computer
system is broken, an intruder, without fear of
sanction or penalty, can make use of the data for
whatever purpose, or worse, manipulate the data
stored within the system.  59
It is plain and we hold that A.O. No. 308 falls short
of assuring that personal information which will
be gathered about our people will only be
processed for unequivocally specified
purposes.   The lack of proper safeguards in this
60
regard of A.O. No. 308 may interfere with the
individual's liberty of abode and travel by
enabling authorities to track down his movement;
it may also enable unscrupulous persons to
access confidential information and circumvent
the right against self-incrimination; it may pave
the way for "fishing expeditions" by government
authorities and evade the right against
unreasonable searches and seizures.   The
61
possibilities of abuse and misuse of the PRN,
biometrics and computer technology are
accentuated when we consider that the individual
lacks control over what can be read or placed on
his ID, much less verify the correctness of the
data encoded.   They threaten the very abuses
62
that the Bill of Rights seeks to prevent.  63
The ability of sophisticated data center to
generate a comprehensive cradle-to-grave dossier
on an individual and transmit it over a national
network is one of the most graphic threats of the
computer revolution.   The computer is capable of
64
producing a comprehensive dossier on
individuals out of information given at different
times and for varied purposes.   It can continue
65
adding to the stored data and keeping the
information up to date. Retrieval of stored date is
simple. When information of a privileged
character finds its way into the computer, it can
be extracted together with other data on the
subject.   Once extracted, the information is putty
66
in the hands of any person. The end of privacy
begins.
Though A.O. No. 308 is undoubtedly not narrowly
drawn, the dissenting opinions would dismiss its
danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such
a laidback posture. The Court will not be true to
its role as the ultimate guardian of the people's
liberty if it would not immediately smother the
sparks that endanger their rights but would rather
wait for the fire that could consume them.
We reject the argument of the Solicitor General
that an individual has a reasonable expectation of
privacy with regard to the Natioal ID and the use
of biometrics technology as it stands on
quicksand. The reasonableness of a person's
expectation of privacy depends on a two-part test:
(1) whether by his conduct, the individual has
exhibited an expectation of privacy; and (2)
whether this expectation is one that society
recognizes as reasonable.   The factual
67
circumstances of the case determines the
reasonableness of the expectation.   However,
68
other factors, such as customs, physical
surroundings and practices of a particular
activity, may serve to create or diminish this
expectation.   The use of biometrics and
69
computer technology in A.O. No. 308 does not
assure the individual of a reasonable expectation
of privacy.   As technology advances, the level of
70
reasonably expected privacy decreases.   The 71
measure of protection granted by the reasonable
expectation diminishes as relevant technology
becomes more widely accepted.   The security of
72
the computer data file depends not only on the
physical inaccessibility of the file but also on the
advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation
of privacy, regardless of technology used, cannot
be inferred from its provisions.
The rules and regulations to be by the IACC
cannot remedy this fatal defect. Rules and
regulations merely implement the policy of the
law or order. On its face, A.O. No. gives the IACC
virtually infettered discretion to determine the
metes and bounds of the ID System.
Nor do your present laws prvide adequate
safeguards for a reasonable expectation of
privacy. Commonwealth Act. No. 591 penalizes
the disclosure by any person of data furnished by
the individual to the NSO with imprisonment and
fine.   Republic Act. No. 1161 prohibits public
73
disclosure of SSS employment records and
reports.   These laws, however, apply to records
74
and data with the NSO and the SSS. It is not clear
whether they may be applied to data with the
other government agencies forming part of the
National ID System. The need to clarify the penal
aspect of A.O. No. 308 is another reason why its
enactment should be given to Congress.
Next, the Solicitor General urges us to validate
A.O. No. 308's abridgment of the right of privacy
by using the rational relationship test.   He
75
stressed that the purposes of A.O. No. 308 are: (1)
to streamline and speed up the implementation of
basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate
population data for development planning. He
cocludes that these purposes justify the
incursions into the right to privacy for the means
are rationally related to the end. 
76
We are not impressed by the argument. In Morfe
v. Mutuc,   we upheld the constitutionality of R.A.
77
3019, the Anti-Graft and Corrupt Practices Act, as
a valid police power measure. We declared that
the law, in compelling a public officer to make an
annual report disclosing his assets and liabilities,
his sources of income and expenses, did not
infringe on the individual's right to privacy. The
law was enacted to promote morality in public
administration by curtailing and minimizing the
opportunities for official corruption and
maintaining a standard of honesty in the public
service. 78
The same circumstances do not obtain in the case
at bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what
practices were prohibited and penalized, and it
was narrowly drawn to avoid abuses. IN the case
at bar, A.O. No. 308 may have been impelled by a
worthy purpose, but, it cannot pass constitutional
scrutiny for it is not narrowly drawn. And we now
hod that when the integrity of a fundamental right
is at stake, this court will give the challenged law,
administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke
the presumption of regularity in the performance
of official duties. Nor is it enough for the
authorities to prove that their act is not irrational
for a basic right can be diminished, if not
defeated, even when the government does not act
irrationally. They must satisfactorily show the
presence of compelling state interests and that
the law, rule or regulation is narrowly drawn to
preclude abuses. This approach is demanded by
the 1987 Constitution whose entire matrix is
designed to protect human rights and to prevent
authoritarianism. In case of doubt, the least we
can do is to lean towards the stance that will not
put in danger the rights protected by the
Constitutions.
The case of Whalen v. Roe   cited by the Solicitor
79
General is also off-line. In Whalen, the United
States Supreme Court was presented with the
question of whether the State of New York could
keep a centralized computer record of the names
and addresses of all persons who obtained
certain drugs pursuant to a doctor's prescription.
The New York State Controlled Substance Act of
1972 required physicians to identify parties
obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use
but with a potential for abuse, so that the names
and addresses of the patients can be recorded in
a centralized computer file of the State
Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people
might decline necessary medication because of
their fear that the computerized data may be
readily available and open to public disclosure;
and that once disclosed, it may stigmatize them
as drug addicts.   The plaintiffs alleged that the
80
statute invaded a constitutionally protected zone
of privacy, i.e., the individual interest in avoiding
disclosure of personal matters, and the interest in
independence in making certain kinds of
important decisions. The U.S. Supreme Court held
that while an individual's interest in avoiding
disclosuer of personal matter is an aspect of the
right to privacy, the statute did not pose a
grievous threat to establish a constitutional
violation. The Court found that the statute was
necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous
drugs. The patient-identification requirement was
a product of an orderly and rational legislative
decision made upon recommmendation by a
specially appointed commission which held
extensive hearings on the matter. Moreover, the
statute was narrowly drawn and contained
numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure
and requirements for the gathering, storage and
retrieval of the informatin. It ebumerated who
were authorized to access the data. It also
prohibited public disclosure of the data by
imposing penalties for its violation. In view of
these safeguards, the infringement of the patients'
right to privacy was justified by a valid exercise of
police power. As we discussed above, A.O. No.
308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell
out in neon that the Court is not per se agains the
use of computers to accumulate, store, process,
retvieve and transmit data to improve our
bureaucracy. Computers work wonders to achieve
the efficiency which both government and private
industry seek. Many information system in
different countries make use of the computer to
facilitate important social objective, such as
better law enforcement, faster delivery of public
services, more efficient management of credit and
insurance programs, improvement of
telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the
computer could help good administration by making
accurate and comprehensive information for those
who have to frame policy and make key
decisions. 82 The benefits of the computer has
revolutionized information technology. It developed
the internet, 83 introduced the concept of
cyberspace 84 and the information superhighway
where the individual, armed only with his personal
computer, may surf and search all kinds and classes
of information from libraries and databases
connected to the net.
In no uncertain terms, we also underscore that the
right to privacy does not bar all incursions into
individual privacy. The right is not intended to
stifle scientific and technological advancements
that enhance public service and the common
good. It merely requires that the law be narrowly
focused 85 and a compelling interest justify such
intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down
in Morfe v. Mutuc, to wit:
The concept of limited government
has always included the idea that
governmental powers stop short of
certain intrusions into the personal
life of the citizen. This is indeed one
of the basic disctinctions between
absolute and limited government.
Ultimate and pervasive control of
the individual, in all aspects of his
life, is the hallmark of the absolute
state. In contrast, a system of
limited government safeguards a
private sector, which belongs to the
individual, firmly distinguishing it
from the public sector, which the
state can control. Protection of this
private sector — protection, in
other words, of the dignity and
integrity of the individual — has
become increasingly important as
modern society has developed. All
the forces of a technological age —
industrialization, urbanization, and
organization — operate to narrow
the area of privacy and facilitate
intrusion into it. In modern terms,
the capacity to maintain and
support this enclave of private life
marks the difference between a
democratic and a totalitarian
society. 87
IV
The right to privacy is one of the most threatened
rights of man living in a mass society. The threats
emanate from various sources — governments,
journalists, employers, social scientists, etc. 88 In
th case at bar, the threat comes from the executive
branch of government which by issuing A.O. No. 308
pressures the people to surrender their privacy by
giving information about themselves on the pretext
that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the
indifferent fail to perceive the danger that A.O. No.
308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It
is timely to take note of the well-worded warning of
Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record
of his past and his limitations. In a way, the threat is
that because of its record-keeping, the society will
have lost its benign capacity to forget." 89 Oblivious
to this counsel, the dissents still say we should not
be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that
the right to privacy was not engraved in our
Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and
Adminisrative Order No. 308 entitled "Adoption of
a National Computerized Identification Reference
System" declared null and void for being
unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and
Mendoza in their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr. Justice
Panganiban in his separate opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices Kapunan
and Mendoza.
Vitug, J., See separate opinion.
Kapunan, J., See dissenting opinion.
Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate Opinion.
Quisumbing, J., I join in dissenting opinion of JJ.
Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's
dissenting.
Art. II, Sec. 11 (respect for human rights)
Writ of Amparo
28) Sec. of National Defense vs. Manalo (G.R. No. 180906,
October 7, 2008)
PUNO, C.J.:
While victims of enforced disappearances are
separated from the rest of the world behind secret
walls, they are not separated from the constitutional
protection of their basic rights. The constitution is an
overarching sky that covers all in its protection. The
case at bar involves the rights to life, liberty and
security in the first petition for a writ of Amparo filed
before this Court.
This is an appeal via Petition for Review under Rule
45 of the Rules of Court in relation to Section 191 of
the Rule on the Writ of Amparo, seeking to reverse
and set aside on both questions of fact and law, the
Decision promulgated by the Court of Appeals in C.A.
G.R. AMPARO No. 00001, entitled "Raymond Manalo
and Reynaldo Manalo, petitioners, versus The
Secretary of National Defense, the Chief of Staff,
Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition,
Injunction, and Temporary Restraining Order
(TRO)2 filed before this Court by herein respondents
(therein petitioners) on August 23, 2007 to stop herein
petitioners (therein respondents) and/or their officers
and agents from depriving them of their right to liberty
and other basic rights. Therein petitioners also sought
ancillary remedies, Protective Custody Orders,
Appointment of Commissioner, Inspection and Access
Orders, and all other legal and equitable reliefs under
Article VIII, Section 5(5)3 of the 1987 Constitution and
Rule 135, Section 6 of the Rules of Court. In our
Resolution dated August 24, 2007, we (1) ordered the
Secretary of the Department of National Defense and
the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead,
including but not limited to the Citizens Armed Forces
Geographical Unit (CAFGU) to submit their Comment;
and (2) enjoined them from causing the arrest of
therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life,
liberty, and other basic rights as guaranteed under
Article III, Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the
Rule on the Writ of Amparo took effect on October 24,
2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing
Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the
petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the
Court issue the writ commanding therein respondents
to make a verified return within the period provided by
law and containing the specific matter required by
law; (3) they be granted the interim reliefs allowed by
the Amparo Rule and all other reliefs prayed for in the
petition but not covered by the Amparo Rule; (4) the
Court, after hearing, render judgment as required in
Sec. 187 of the Amparo Rule; and (5) all other just and
equitable reliefs.8
On October 25, 2007, the Court resolved to treat the
August 23, 2007 Petition as a petition under
the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be
issued to respondents requiring them to file
with the CA (Court of Appeals) a verified
written return within five (5) working days from
service of the writ. We REMAND the petition
to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to
conduct the summary hearing on the petition
on November 8, 2007 at 2:00 p.m. and decide
the petition in accordance with the Rule on the
Writ of Amparo.9
On December 26, 2007, the Court of Appeals
rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of which
reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE
WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF
NATIONAL DEFENSE and AFP CHIEF OF
STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to
this Court within five days from notice
of this decision all official and
unofficial reports of the investigation
undertaken in connection with their
case, except those already on file
herein;
 2. To confirm in writing the present
places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald
Caigas within five days from notice of
this decision.
3. To cause to be produced to this
Court all medical reports, records and
charts, reports of any treatment given
or recommended and medicines
prescribed, if any, to the petitioners, to
include a list of medical and (sic)
personnel (military and civilian) who
attended to them from February 14,
2006 until August 12, 2007 within five
days from notice of this decision.
The compliance with this decision shall be
made under the signature and oath of
respondent AFP Chief of Staff or his duly
authorized deputy, the latter's authority to be
express and made apparent on the face of the
sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first
unfurl the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about
one or two weeks before February 14, 2006, several
uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of
their barangay in San Idelfonso, Bulacan.
Respondents were not able to attend as they were not
informed of the gathering, but Raymond saw some of
the soldiers when he passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their
house in Buhol na Mangga, San Ildefonso, Bulacan.
At past noon, several armed soldiers wearing white
shirts, fatigue pants and army boots, entered their
house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he
was Raymond, not Bestre. The armed soldier slapped
him on both cheeks and nudged him in the stomach.
He was then handcuffed, brought to the rear of his
house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the
light, then forcibly brought near the road. He told his
mother to follow him, but three soldiers stopped her
and told her to stay.12
Among the men who came to take him, Raymond
recognized brothers Michael de la Cruz, Madning de
la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who
all acted as lookout. They were all members of the
CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy
Mendoza and Rudy Mendoza, also members of the
CAFGU. While he was being forcibly taken, he also
saw outside of his house two barangay councilors,
Pablo Cunanan and Bernardo Lingasa, with some
soldiers and armed men.13
The men forced Raymond into a white L300 van.
Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who took
him. Later, in his 18 months of captivity, he learned
their names. The one who drove the van was Rizal
Hilario alias Rollie Castillo, whom he estimated was
about 40 years of age or older. The leader of the team
who entered his house and abducted him was
"Ganata." He was tall, thin, curly-haired and a bit old.
Another one of his abductors was "George" who was
tall, thin, white-skinned and about 30 years old. 14
The van drove off, then came to a stop. A person was
brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road,
he recognized the voice of the person beside him as
his brother Reynaldo's. The van stopped several
times until they finally arrived at a house. Raymond
and Reynaldo were each brought to a different room.
With the doors of their rooms left open, Raymond saw
several soldiers continuously hitting his brother
Reynaldo on the head and other parts of his body with
the butt of their guns for about 15 minutes. After
which, Reynaldo was brought to his (Raymond's)
room and it was his (Raymond's) turn to be beaten up
in the other room. The soldiers asked him if he was a
member of the New People's Army. Each time he said
he was not, he was hit with the butt of their guns. He
was questioned where his comrades were, how many
soldiers he had killed, and how many NPA members
he had helped. Each time he answered none, they hit
him.15
In the next days, Raymond's interrogators appeared
to be high officials as the soldiers who beat him up
would salute them, call them "sir," and treat them with
respect. He was in blindfolds when interrogated by
the high officials, but he saw their faces when they
arrived and before the blindfold was put on. He
noticed that the uniform of the high officials was
different from those of the other soldiers. One of those
officials was tall and thin, wore white pants, tie, and
leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family,
and a habeas corpus case filed in connection with the
respondents' abduction.16 While these officials
interrogated him, Raymond was not manhandled. But
once they had left, the soldier guards beat him up.
When the guards got drunk, they also manhandled
respondents. During this time, Raymond was fed only
at night, usually with left-over and rotten food.17
On the third week of respondents' detention, two men
arrived while Raymond was sleeping and beat him up.
They doused him with urine and hot water, hit his
stomach with a piece of wood, slapped his forehead
twice with a .45 pistol, punched him on the mouth,
and burnt some parts of his body with a burning
wood. When he could no longer endure the torture
and could hardly breathe, they stopped. They then
subjected Reynaldo to the same ordeal in another
room. Before their torturers left, they warned
Raymond that they would come back the next day
and kill him.18
The following night, Raymond attempted to escape.
He waited for the guards to get drunk, then made
noise with the chains put on him to see if they were
still awake. When none of them came to check on
him, he managed to free his hand from the chains and
jumped through the window. He passed through a
helipad and firing range and stopped near a fishpond
where he used stones to break his chains. After
walking through a forested area, he came near a river
and an Iglesia ni Kristo church. He talked to some
women who were doing the laundry, asked where he
was and the road to Gapan. He was told that he was
in Fort Magsaysay.19 He reached the highway, but
some soldiers spotted him, forcing him to run away.
The soldiers chased him and caught up with him.
They brought him to another place near the entrance
of what he saw was Fort Magsaysay. He was boxed
repeatedly, kicked, and hit with chains until his back
bled. They poured gasoline on him. Then a so-called
"Mam" or "Madam" suddenly called, saying that she
wanted to see Raymond before he was killed. The
soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was
detained.20
For some weeks, the respondents had a respite from
all the torture. Their wounds were treated. When the
wounds were almost healed, the torture resumed,
particularly when respondents' guards got drunk. 21
Raymond recalled that sometime in April until May
2006, he was detained in a room enclosed by steel
bars. He stayed all the time in that small room
measuring 1 x 2 meters, and did everything there,
including urinating, removing his bowels, bathing,
eating and sleeping. He counted that eighteen
people22 had been detained in that bartolina, including
his brother Reynaldo and himself. 23
For about three and a half months, the respondents
were detained in Fort Magsaysay. They were kept in
a small house with two rooms and a kitchen. One
room was made into the bartolina. The house was
near the firing range, helipad and mango trees. At
dawn, soldiers marched by their house. They were
also sometimes detained in what he only knew as the
"DTU."24
At the DTU, a male doctor came to examine
respondents. He checked their body and eyes, took
their urine samples and marked them. When asked
how they were feeling, they replied that they had a
hard time urinating, their stomachs were aching, and
they felt other pains in their body. The next day, two
ladies in white arrived. They also examined
respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought
with them the results of respondents' urine test and
advised them to drink plenty of water and take their
medicine. The two ladies returned a few more times.
Thereafter, medicines were sent through the "master"
of the DTU, "Master" Del Rosario alias Carinyoso at
Puti. Respondents were kept in the DTU for about two
weeks. While there, he met a soldier named Efren
who said that Gen. Palparan ordered him to monitor
and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo
vehicle. They, along with Efren and several other
armed men wearing fatigue suits, went to a
detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a
big two-storey house. Hilario and Efren stayed with
them. While there, Raymond was beaten up by
Hilario's men.26
From Pinaud, Hilario and Efren brought respondents
to Sapang, San Miguel, Bulacan on board the Revo.
They were detained in a big unfinished house inside
the compound of "Kapitan" for about three months.
When they arrived in Sapang, Gen. Palparan talked to
them. They were brought out of the house to a
basketball court in the center of the compound and
made to sit. Gen. Palparan was already waiting,
seated. He was about two arms' length away from
respondents. He began by asking if respondents felt
well already, to which Raymond replied in the
affirmative. He asked Raymond if he knew him.
Raymond lied that he did not. He then asked
Raymond if he would be scared if he were made to
face Gen. Palparan. Raymond responded that he
would not be because he did not believe that Gen.
Palparan was an evil man.27
Raymond narrated his conversation with Gen.
Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na
kaharap mo na ako, di ka ba natatakot sa
akin?"
Sumagot akong, "Siyempre po, natatakot
din..."
 Sabi ni Gen. Palparan: "Sige, bibigyan ko
kayo ng isang pagkakataon na mabuhay,
basta't sundin n'yo ang lahat ng sasabihin
ko... sabihin mo sa magulang mo - huwag
pumunta sa mga rali, sa hearing, sa
Karapatan at sa Human Right dahil niloloko
lang kayo. Sabihin sa magulang at lahat sa
bahay na huwag paloko doon. Tulungan kami
na kausapin si Bestre na sumuko na sa
gobyerno."28
Respondents agreed to do as Gen. Palparan told
them as they felt they could not do otherwise. At
about 3:00 in the morning, Hilario, Efren and the
former's men - the same group that abducted them -
brought them to their parents' house. Raymond was
shown to his parents while Reynaldo stayed in the
Revo because he still could not walk. In the presence
of Hilario and other soldiers, Raymond relayed to his
parents what Gen. Palparan told him. As they were
afraid, Raymond's parents acceded. Hilario
threatened Raymond's parents that if they continued
to join human rights rallies, they would never see their
children again. The respondents were then brought
back to Sapang.29
When respondents arrived back in Sapang, Gen.
Palparan was about to leave. He was talking with the
four "masters" who were there: Arman, Ganata,
Hilario and Cabalse.30 When Gen. Palparan saw
Raymond, he called for him. He was in a big white
vehicle. Raymond stood outside the vehicle as Gen.
Palparan told him to gain back his strength and be
healthy and to take the medicine he left for him and
Reynaldo. He said the medicine was expensive at
Php35.00 each, and would make them strong. He
also said that they should prove that they are on the
side of the military and warned that they would not be
given another chance.31 During his testimony,
Raymond identified Gen. Palparan by his picture. 32
One of the soldiers named Arman made Raymond
take the medicine left by Gen. Palparan. The
medicine, named "Alive," was green and yellow.
Raymond and Reynaldo were each given a box of this
medicine and instructed to take one capsule a day.
Arman checked if they were getting their dose of the
medicine. The "Alive" made them sleep each time
they took it, and they felt heavy upon waking up. 33
After a few days, Hilario arrived again. He took
Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he should
introduce himself as "Oscar," a military trainee from
Sariaya, Quezon, assigned in Bulacan. While there,
he saw again Ganata, one of the men who abducted
him from his house, and got acquainted with other
military men and civilians.34
After about three months in Sapang, Raymond was
brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified men in
a big white vehicle. Efren went with them. Raymond
was then blindfolded. After a 30-minute ride, his
blindfold was removed. Chains were put on him and
he was kept in the barracks.35
The next day, Raymond's chains were removed and
he was ordered to clean outside the barracks. It was
then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of
them were training. He was also ordered to clean
inside the barracks. In one of the rooms therein, he
met Sherlyn Cadapan from Laguna. She told him that
she was a student of the University of the Philippines
and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe
torture and raped. She was crying and longing to go
home and be with her parents. During the day, her
chains were removed and she was made to do the
laundry.36
After a week, Reynaldo was also brought to Camp
Tecson. Two days from his arrival, two other captives,
Karen Empeño and Manuel Merino, arrived. Karen
and Manuel were put in the room with "Allan" whose
name they later came to know as Donald Caigas,
called "master" or "commander" by his men in the
24th Infantry Battalion. Raymond and Reynaldo were
put in the adjoining room. At times, Raymond and
Reynaldo were threatened, and Reynaldo was beaten
up. In the daytime, their chains were removed, but
were put back on at night. They were threatened that
if they escaped, their families would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp
Tecson. He told the detainees that they should be
thankful they were still alive and should continue
along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to
their parents to instruct them not to attend the
hearing. However, their parents had already left for
Manila. Respondents were brought back to Camp
Tecson. They stayed in that camp from September
2006 to November 2006, and Raymond was
instructed to continue using the name "Oscar" and
holding himself out as a military trainee. He got
acquainted with soldiers of the 24th Infantry Battalion
whose names and descriptions he stated in his
affidavit.38
On November 22, 2006, respondents, along with
Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan.
There were many huts in the camp. They stayed in
that camp until May 8, 2007. Some soldiers of the
battalion stayed with them. While there, battalion
soldiers whom Raymond knew as "Mar" and "Billy"
beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous
torture in the camp. They were all made to clean,
cook, and help in raising livestock.39
Raymond recalled that when "Operation Lubog" was
launched, Caigas and some other soldiers brought
him and Manuel with them to take and kill all
sympathizers of the NPA. They were brought to
Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The
soldiers said he was killed because he had a son who
was a member of the NPA and he coddled NPA
members in his house.40 Another time, in another
"Operation Lubog," Raymond was brought to
Barangay Orion in a house where NPA men stayed.
When they arrived, only the old man of the house who
was sick was there. They spared him and killed only
his son right before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen,
and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men
stayed with them. A retired army soldier was in
charge of the house. Like in Limay, the five detainees
were made to do errands and chores. They stayed in
Zambales from May 8 or 9, 2007 until June 2007. 42
In June 2007, Caigas brought the five back to the
camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and
experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas)
na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon
man kaming makita o marinig, walang
nangyari. Kinaumagahan, nakita naming ang
bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang
katawan at ito'y sinunog. Masansang ang
amoy.
Makaraan ang isang lingo, dalawang bangkay
and ibinaba ng mga unipormadong sundalo
mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may
dinukot sila na dalawang Ita. Itinali sila sa
labas ng kubo, piniringan, ikinadena at labis
na binugbog. Nakita kong nakatakas ang isa
sa kanila at binaril siya ng sundalo ngunit
hindi siya tinamaan. Iyong gabi nakita kong
pinatay nila iyong isang Ita malapit sa Post 3;
sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang
bangkay ang dinala sa kampo. Ibinaba ang
mga bangkay mula sa pick up trak, dinala ang
mga bangkay sa labas ng bakod.
Kinaumagahan nakita kong mayroong
sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at
1 kasama niya. Pinakain ko sila. Sabi nila sa
akin na dinukot sila sa Bataan. Iyong gabi,
inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw,
nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas, pinosasan.
Nilakasan ng mga sundalo ang tunog na
galing sa istiryo ng sasakyan. Di nagtagal,
narinig ko ang hiyaw o ungol ni Manuel.
Sumilip ako sa isang haligi ng kamalig at
nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami.
Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa
ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami
ni Donald. Tinanong kami kung ano ang sabi
ni Manuel sa amin. Sabi ni Donald huwag na
raw naming hanapin ang dalawang babae at
si Manuel, dahil magkakasama na yung tatlo.
Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni
Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo
were brought to Pangasinan, ostensibly to raise
poultry for Donald (Caigas). Caigas told respondents
to also farm his land, in exchange for which, he would
take care of the food of their family. They were also
told that they could farm a small plot adjoining his
land and sell their produce. They were no longer put
in chains and were instructed to use the names
Rommel (for Raymond) and Rod (for Reynaldo) and
represent themselves as cousins from Rizal,
Laguna.44
Respondents started to plan their escape. They could
see the highway from where they stayed. They helped
farm adjoining lands for which they were paid
Php200.00 or Php400.00 and they saved their
earnings. When they had saved Php1,000.00 each,
Raymond asked a neighbor how he could get a
cellular phone as he wanted to exchange text
messages with a girl who lived nearby. A phone was
pawned to him, but he kept it first and did not use it.
They earned some more until they had saved
Php1,400.00 between them.
There were four houses in the compound. Raymond
and Reynaldo were housed in one of them while their
guards lived in the other three. Caigas entrusted
respondents to Nonong, the head of the guards.
Respondents' house did not have electricity. They
used a lamp. There was no television, but they had a
radio. In the evening of August 13, 2007, Nonong and
his cohorts had a drinking session. At about 1:00
a.m., Raymond turned up the volume of the radio.
When none of the guards awoke and took notice,
Raymond and Reynaldo proceeded towards the
highway, leaving behind their sleeping guards and
barking dogs. They boarded a bus bound for Manila
and were thus freed from captivity.45
Reynaldo also executed an affidavit affirming the
contents of Raymond's affidavit insofar as they related
to matters they witnessed together. Reynaldo added
that when they were taken from their house on
February 14, 2006, he saw the faces of his abductors
before he was blindfolded with his shirt. He also
named the soldiers he got acquainted with in the 18
months he was detained. When Raymond attempted
to escape from Fort Magsaysay, Reynaldo was
severely beaten up and told that they were indeed
members of the NPA because Raymond escaped.
With a .45 caliber pistol, Reynaldo was hit on the back
and punched in the face until he could no longer bear
the pain.
At one point during their detention, when Raymond
and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by
Rizal Hilario. He was kept in the house of Kapitan, a
friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to represent
himself as a military trainee from Meycauayan,
Bulacan. Sometimes, Hilario brought along Reynaldo
in his trips. One time, he was brought to a market in
San Jose, del Monte, Bulacan and made to wait in the
vehicle while Hilario was buying. He was also brought
to Tondo, Manila where Hilario delivered boxes of
"Alive" in different houses. In these trips, Hilario drove
a black and red vehicle. Reynaldo was blindfolded
while still in Bulacan, but allowed to remove the
blindfold once outside the province. In one of their
trips, they passed by Fort Magsaysay and Camp
Tecson where Reynaldo saw the sign board,
"Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of
respondents Raymond and Reynaldo Manalo. Dr.
Molino specialized in forensic medicine and was
connected with the Medical Action Group, an
organization handling cases of human rights
violations, particularly cases where torture was
involved. He was requested by an NGO to conduct
medical examinations on the respondents after their
escape. He first asked them about their ordeal, then
proceeded with the physical examination. His findings
showed that the scars borne by respondents were
consistent with their account of physical injuries
inflicted upon them. The examination was conducted
on August 15, 2007, two days after respondents'
escape, and the results thereof were reduced into
writing. Dr. Molino took photographs of the scars. He
testified that he followed the Istanbul Protocol in
conducting the examination.47
Petitioners dispute respondents' account of their
alleged abduction and torture. In compliance with the
October 25, 2007 Resolution of the Court, they filed a
Return of the Writ of Amparo admitting the abduction
but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo
Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado,
disappeared or under the custody by the
military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by
petitioners' parents before the Court of
Appeals in C.A.-G.R. SP No. 94431 against
M/Sgt. Rizal Hilario aka Rollie Castillo, as
head of the 24th Infantry Battalion; Maj. Gen.
Jovito Palparan, as Commander of the
7th Infantry Division in Luzon; Lt. Gen.
Hermogenes Esperon, in his capacity as the
Commanding General of the Philippine Army,
and members of the Citizens Armed Forces
Geographical Unit (CAFGU), namely: Michael
dela Cruz, Puti dela Cruz, Madning dela Cruz,
Pula dela Cruz, Randy Mendoza and Rudy
Mendoza. The respondents therein submitted
a return of the writ... On July 4, 2006, the
Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C.
Esperon, Jr., then Commanding General of
the Philippine Army, and on September 19,
2006, Maj. (sic) Jovito S. Palparan, then
Commanding General, 7th Infantry Division,
Philippine Army, stationed at Fort Magsaysay,
Palayan City, Nueva Ecija, upon a finding that
no evidence was introduced to establish their
personal involvement in the taking of the
Manalo brothers. In a Decision dated June 27,
2007..., it exonerated M/Sgt. Rizal Hilario aka
Rollie Castillo for lack of evidence establishing
his involvement in any capacity in the
 disappearance of the Manalo brothers,
although it held that the remaining
respondents were illegally detaining the
Manalo brothers and ordered them to release
the latter.48
Attached to the Return of the Writ was the affidavit of
therein respondent (herein petitioner) Secretary of
National Defense, which attested that he assumed
office only on August 8, 2007 and was thus unaware
of the Manalo brothers' alleged abduction. He also
claimed that:
7. The Secretary of National Defense does not
engage in actual military directional
operations, neither does he undertake
command directions of the AFP units in the
field, nor in any way micromanage the AFP
operations. The principal responsibility of the
Secretary of National Defense is focused in
providing strategic policy direction to the
Department (bureaus and agencies) including
the Armed Forces of the Philippines;
8. In connection with the Writ
of Amparo issued by the Honorable Supreme
Court in this case, I have directed the Chief of
Staff, AFP to institute immediate action in
compliance with Section 9(d) of
the Amparo Rule and to submit report of such
compliance... Likewise, in a Memorandum
Directive also dated October 31, 2007, I have
issued a policy directive addressed to the
Chief of Staff, AFP that the AFP should adopt
the following rules of action in the event the
Writ of Amparo is issued by a competent court
against any members of the AFP:
(1) to verify the identity of the
aggrieved party;
(2) to recover and preserve evidence
related to the death or disappearance
of the person identified in the petition
which may aid in the prosecution of
the person or persons responsible;
(3) to identify witnesses and obtain
statements from them concerning the
death or disappearance;
(4) to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the
person or persons involved in the
death or disappearance; and
(6) to bring the suspected offenders
before a competent court.49
Therein respondent AFP Chief of Staff also submitted
his own affidavit, attached to the Return of the Writ,
attesting that he received the above directive of
therein respondent Secretary of National Defense and
that acting on this directive, he did the following:
3.1. As currently designated Chief of Staff,
Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of
the AFP for the purpose of establishing the
circumstances of the alleged disappearance
and the recent reappearance of the
petitioners.
3.2. I have caused the immediate
investigation and submission of the result
thereof to Higher headquarters and/or direct
the immediate conduct of the investigation on
the matter by the concerned unit/s,
dispatching Radio Message on November 05,
2007, addressed to the Commanding
General, Philippine Army (Info:
COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is
attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted
by the concerned unit relative to the
circumstances of the alleged disappearance
of the persons in whose favor the Writ
of Amparo has been sought for as soon as the
same has been furnished Higher
headquarters.
3.4. A parallel investigation has been directed
to the same units relative to another Petition
for the Writ of Amparo (G.R. No. 179994) filed
at the instance of relatives of a certain
Cadapan and Empeño pending before the
Supreme Court.
3.5. On the part of the Armed Forces, this
respondent will exert earnest efforts to
establish the surrounding circumstances of
the disappearances of the petitioners and to
bring those responsible, including any military
personnel if shown to have participated or had
complicity in the commission of the
complained acts, to the bar of justice, when
warranted by the findings and the competent
 evidence that may be gathered in the
process.50
Also attached to the Return of the Writ was the
affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA,
earlier filed in G.R. No. 179994, another Amparo case
in this Court, involving Cadapan, Empeño and Merino,
which averred among others, viz:
10) Upon reading the allegations in the
Petition implicating the 24th Infantry Batallion
detachment as detention area, I immediately
went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in
the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeño and Manuel
Merino being held captive;
11) There was neither any reports of any
death of Manuel Merino in the 24th IB in Limay,
Bataan;
12) After going to the 24th IB in Limay, Bataan,
we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the
alleged detentions or deaths and were
informed that none was reported to their good
office;
13) I also directed Company Commander
1st Lt. Romeo Publico to inquire into the
alleged beachhouse in Iba, Zambales also
alleged to be a detention place where Sherlyn
Cadapan, Karen Empeño and Manuel Merino
were detained. As per the inquiry, however,
no such beachhouse was used as a detention
place found to have been used by armed men
to detain Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that for lack
of sufficient time, the affidavits of Maj. Gen Jovito S.
Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie
Castillo, and other persons implicated by therein
petitioners could not be secured in time for the
submission of the Return and would be subsequently
submitted.52
Herein petitioners presented a lone witness in the
summary hearings, Lt. Col. Ruben U. Jimenez,
Provost Marshall, 7th Infantry Division, Philippine
Army, based in Fort Magsaysay, Palayan City, Nueva
Ecija. The territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga,
Tarlac and a portion of Pangasinan.53 The 24th Infantry
Battalion is part of the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by
the Commanding General of the 7th Infantry Division,
Maj. Gen. Jovito Palaran,55 through his Assistant Chief
of Staff,56 to investigate the alleged abduction of the
respondents by CAFGU auxiliaries under his unit,
namely: CAA Michael de la Cruz; CAA Roman de la
Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula;
CAA Randy Mendoza; ex-CAA Marcelo de la Cruz
aka Madning; and a civilian named Rudy Mendoza.
He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the
alleged elements of the CAFGU auxiliaries; and (2)
the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular
investigation was initiated not by a complaint as was
the usual procedure, but because the Commanding
General saw news about the abduction of the Manalo
brothers on the television, and he was concerned
about what was happening within his territorial
jurisdiction.58
Jimenez summoned all six implicated persons for the
purpose of having them execute sworn statements
and conducting an investigation on May 29,
2006.59 The investigation started at 8:00 in the
morning and finished at 10:00 in the evening.60 The
investigating officer, Technical Sgt. Eduardo Lingad,
took the individual sworn statements of all six persons
on that day. There were no other sworn statements
taken, not even of the Manalo family, nor were there
other witnesses summoned and investigated 61 as
according to Jimenez, the directive to him was only to
investigate the six persons.62
Jimenez was beside Lingad when the latter took the
statements.63 The six persons were not known to
Jimenez as it was in fact his first time to meet
them.64 During the entire time that he was beside
Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single
question to the six persons.65
Jimenez testified that all six statements were taken on
May 29, 2006, but Marcelo Mendoza and Rudy
Mendoza had to come back the next day to sign their
statements as the printing of their statements was
interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their
statements indicated that they were signed on May
29, 2006.66 When the Sworn Statements were turned
over to Jimenez, he personally wrote his investigation
report. He began writing it in the afternoon of May 30,
2006 and finished it on June 1, 2006. 67 He then gave
his report to the Office of the Chief of Personnel. 68
As petitioners largely rely on Jimenez's Investigation
Report dated June 1, 2006 for their evidence, the
report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of
RAYMOND MANALO and REYNALDO
MANALO who were forcibly taken from their
respective homes in Brgy. Buhol na Mangga,
San Ildefonso, Bulacan on 14 February 2006
by unidentified armed men and thereafter
were forcibly disappeared. After the said
incident, relatives of the victims filed a case
for Abduction in the civil court against the
herein suspects: Michael dela Cruz, Madning
dela Cruz, Puti Dela Cruz, Pula Dela Cruz,
Randy Mendoza and Rudy Mendoza as
alleged members of the Citizen Armed Forces
Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela
Cruz, aka Pula dated 29 May 2006 in (Exhibit
"B") states that he was at Sitio Mozon, Brgy.
Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church
located nearby his residence, together with
some neighbor thereat. He claims that on 15
February 2006, he was being informed by
Brgy. Kagawad Pablo Umayan about the
abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that he
was one of the suspects, he claims that they
only implicated him because he was a
CAFGU and that they claimed that those who
abducted the Manalo brothers are members
of the Military and CAFGU. Subject
vehemently denied any participation or
involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz
y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of
Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based
at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and
Reynaldo Manalo being his neighbors are
active members/sympathizers of the
CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an
NPA Leader operating in their province. That
at the time of the alleged abduction of the two
(2) brothers and for accusing him to be one of
the suspects, he claims that on February 14,
2006, he was one of those working at the
concrete chapel being constructed nearby his
residence. He claims further that he just came
only to know about the incident on other day
(15 Feb 06) when he was being informed by
Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the
incident and claimed that they only implicated
him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y
Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a
member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was
very much aware about the background of the
two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their
Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo.
Being one of the accused, he claims that on
14 February 2006, he was at Brgy.
Magmarate, San Miguel, Bulacan in the house
of his aunt and he learned only about the
incident when he arrived home in their place.
He claims further that the only reason why
they implicated him was due to the fact that
his mother has filed a criminal charge against
their brother Rolando Manalo @ KA BESTRE
who is an NPA Commander who killed his
father and for that reason they implicated him
in support of their brother. Subject CAA
vehemently denied any involvement on the
abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y
Lingasa dated May 29, 2006 in (Exhibit "E")
states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and
he knew them since childhood. Being one of
the accused, he claims that on 14 February
2006, he was at his residence in Brgy.
Marungko, Angat, Bulacan. He claims that he
was being informed only about the incident
lately and he was not aware of any reason
why the two (2) brothers were being abducted
by alleged members of the military and
CAFGU. The only reason he knows why they
implicated him was because there are those
people who are angry with their family
particularly victims of summary execution
(killing) done by their brother @ KA Bestre
Rolando Manalo who is an NPA leader. He
claims further that it was their brother @ KA
BESTRE who killed his father and he was
living witness to that incident. Subject civilian
vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala
Cruz dated 29 May 2006 in (Exhibit "F") states
that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na
Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar
to him being their barrio mate. He claims
further that they are active supporters of
CPP/NPA and that their brother Rolando
Manalo @ KA BESTRE is an NPA leader.
Being one of the accused, he claims that on
14 February 2006, he was in his residence at
Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan. That he vehemently
denied any participation of the alleged
abduction of the two (2) brothers and learned
only about the incident when rumors reached
him by his barrio mates. He claims that his
implication is merely fabricated because of his
relationship to Roman and Maximo who are
his brothers.
f) Sworn statement of Michael dela Cruz y
Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims
that he knew very well the brothers Raymond
and Reynaldo Manalo in their barangay for
having been the Tanod Chief for twenty (20)
years. He alleged further that they are active
supporters or sympathizers of the CPP/NPA
and whose elder brother Rolando Manalo @
KA BESTRE is an NPA leader operating
within the area. Being one of the accused, he
claims that on 14 Feb 2006 he was helping in
the construction of their concrete chapel in
their place and he learned only about the
incident which is the abduction of Raymond
and Reynaldo Manalo when one of the Brgy.
Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims
further that he is truly innocent of the
allegation against him as being one of the
abductors and he considers everything
fabricated in order to destroy his name that
remains loyal to his service to the government
as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of
respondents in this particular case, the proof
of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo
Manalo that transpired on 14 February 2006
at Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their
alleged involvement theretofore to that
incident is considered doubtful, hence, no
basis to indict them as charged in this
investigation.
Though there are previous grudges between
each families (sic) in the past to quote: the
killing of the father of Randy and Rudy
Mendoza by @ KA BESTRE TN: Rolando
Manalo, this will not suffice to establish a fact
that they were the ones who did the abduction
as a form of revenge. As it was also stated in
the testimony of other accused claiming that
the Manalos are active
sympathizers/supporters of the CPP/NPA, this
would not also mean, however, that in the first
place, they were in connivance with the
abductors. Being their neighbors and as
members of CAFGU's, they ought to be
vigilant in protecting their village from any
intervention by the leftist group, hence inside
their village, they were fully aware of the
activities of Raymond and Reynaldo Manalo in
so far as their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case
shows that the alleged charges of abduction
committed by the above named respondents
has not been established in this investigation.
Hence, it lacks merit to indict them for any
administrative punishment and/or criminal
liability. It is therefore concluded that they are
innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo
F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F.
Dela Cruz and Rudy L. Mendoza be
exonerated from the case.
8. Upon approval, this case can be dropped
and closed.69
In this appeal under Rule 45, petitioners question the
appellate court's assessment of the foregoing
evidence and assail the December 26, 2007 Decision
on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY
AND GRIEVOUSLY ERRED IN BELIEVING
AND GIVING FULL FAITH AND CREDIT TO
THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY
SCRIPTED, REHEARSED AND SELF-
SERVING AFFIDAVIT/TESTIMONY OF
 HEREIN RESPONDENT RAYMOND
MANALO.
II.
THE COURT OF APPEALS SERIOUSLY
AND GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF
APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN
FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT.
HILARIO aka ROLLIE CASTILLO AND
DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS
ALL MEDICAL REPORTS, RECORDS AND
CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED
AND MEDICINES PRESCRIBED, IF ANY, TO
THE MANALO BROTHERS, TO INCLUDE A
LIST OF MEDICAL PERSONNEL (MILITARY
AND CIVILIAN) WHO ATTENDED TO THEM
FROM FEBRUARY 14, 2006 UNTIL AUGUST
12, 2007.70
The case at bar is the first decision on the application
of the Rule on the Writ of Amparo (Amparo Rule). Let
us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a
recurring proposition in the recommendations that
resulted from a two-day National Consultative Summit
on Extrajudicial Killings and Enforced Disappearances
sponsored by the Court on July 16-17, 2007. The
Summit was "envisioned to provide a broad and fact-
based perspective on the issue of extrajudicial killings
and enforced disappearances," 71 hence
"representatives from all sides of the political and
social spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out ways to
resolve the crisis.
On October 24, 2007, the Court promulgated
the Amparo Rule "in light of the prevalence of
extralegal killing and enforced disappearances."73 It
was an exercise for the first time of the Court's
expanded power to promulgate rules to protect our
people's constitutional rights, which made its maiden
appearance in the 1987 Constitution in response to
the Filipino experience of the martial law regime. 74 As
the Amparo Rule was intended to address the
intractable problem of "extralegal killings" and
"enforced disappearances," its coverage, in its
present form, is confined to these two instances or to
threats thereof. "Extralegal killings" are "killings
committed without due process of law, i.e., without
legal safeguards or judicial proceedings." 75 On the
other hand, "enforced disappearances" are "attended
by the following characteristics: an arrest, detention or
abduction of a person by a government official or
organized groups or private individuals acting with the
direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places
such persons outside the protection of law."76
The writ of Amparo originated in Mexico. "Amparo"
literally means "protection" in Spanish.77 In 1837, de
Tocqueville's Democracy in America became
available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S.
appealed to many Mexican jurists.78 One of them,
Manuel Crescencio Rejón, drafted a constitutional
provision for his native state, Yucatan, 79 which granted
judges the power to protect all persons in the
enjoyment of their constitutional and legal rights. This
idea was incorporated into the national constitution in
1847, viz:
The federal courts shall protect any inhabitant
of the Republic in the exercise and
preservation of those rights granted to him by
this Constitution and by laws enacted
pursuant hereto, against attacks by the
Legislative and Executive powers of the
federal or state governments, limiting
themselves to granting protection in the
specific case in litigation, making no general
declaration concerning the statute or
regulation that motivated the violation.80
Since then, the protection has been an important part
of Mexican constitutionalism.81 If, after hearing, the
judge determines that a constitutional right of the
petitioner is being violated, he orders the official, or
the official's superiors, to cease the violation and to
take the necessary measures to restore the petitioner
to the full enjoyment of the right in
question. Amparo thus combines the principles of
judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil
law tradition which prevails in Mexico. It enables
courts to enforce the constitution by protecting
individual rights in particular cases, but prevents them
from using this power to make law for the entire
nation.82
The writ of Amparo then spread throughout the
Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each
country.83 It became, in the words of a justice of the
Mexican Federal Supreme Court, one piece of
Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield
of human dignity, her own painful history
conceived."84 What began as a protection against acts
or omissions of public authorities in violation of
constitutional rights later evolved for several
purposes: (1) Amparo libertad for the protection of
personal freedom, equivalent to the habeas
corpus writ; (2) Amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) Amparo
casacion for the judicial review of the constitutionality
and legality of a judicial decision; (4) Amparo
administrativo for the judicial review of administrative
actions; and (5) Amparo agrario for the protection of
peasants' rights derived from the agrarian reform
process.85
In Latin American countries, except Cuba, the writ
of Amparo has been constitutionally adopted to
protect against human rights abuses especially
committed in countries under military juntas. In
general, these countries adopted an all-
encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic
rights.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit
the protection of the writ of Amparo only to some
constitutional guarantees or fundamental rights.87
In the Philippines, while the 1987 Constitution does
not explicitly provide for the writ of Amparo, several of
the above Amparo protections are guaranteed by our
charter. The second paragraph of Article VIII, Section
1 of the 1987 Constitution, the Grave Abuse Clause,
provides for the judicial power "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."
The Clause accords a similar general protection to
human rights extended by the Amparo contra
leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable to the
remedy of habeas corpus found in several provisions
of the 1987 Constitution.88 The Clause is an offspring
of the U.S. common law tradition of judicial review,
which finds its roots in the 1803 case of Marbury v.
Madison.89
While constitutional rights can be protected under the
Grave Abuse Clause through remedies of injunction
or prohibition under Rule 65 of the Rules of Court and
a petition for habeas corpus under Rule 102,90 these
remedies may not be adequate to address the
pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required
to resolve a petition for a writ of Amparo through
summary proceedings and the availability of
appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law
and civil law traditions - borne out of the Latin
American and Philippine experience of human rights
abuses - offers a better remedy to extralegal killings
and enforced disappearances and threats thereof.
The remedy provides rapid judicial relief as it partakes
of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
require full and exhaustive proceedings.91
The writ of Amparo serves both preventive and
curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the
commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators
as it will inevitably yield leads to subsequent
investigation and action. In the long run, the goal of
both the preventive and curative roles is to deter the
further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action
for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their
officers and agents from depriving the respondents of
their right to liberty and other basic rights on August
23, 2007,93 prior to the promulgation of
the Amparo Rule. They also sought ancillary
remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and Access
Orders and other legal and equitable remedies under
Article VIII, Section 5(5) of the 1987 Constitution and
Rule 135, Section 6 of the Rules of Court. When
the Amparo Rule came into effect on October 24,
2007, they moved to have their petition treated as
an Amparo petition as it would be more effective and
suitable to the circumstances of the Manalo brothers'
enforced disappearance. The Court granted their
motion.
With this backdrop, we now come to the arguments of
the petitioner. Petitioners' first argument in disputing
the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously
erred in believing and giving full faith and
credit to the incredible uncorroborated,
contradicted, and obviously scripted,
rehearsed and self-serving affidavit/testimony
of herein respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need
to mine and refine the ore of petitioners' cause of
action, to determine whether the evidence presented
is metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides
for the following causes of action, viz:
Section 1. Petition. - The petition for a writ
of Amparo is a remedy available to any
person whose right to life, liberty and
security is violated or threatened with
violation by an unlawful act or omission of a
public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings
and enforced disappearances or threats
thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the
degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of
Diligence Required. - The parties shall
establish their claims by substantial
evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in
the petition are proven by substantial
evidence, the court shall grant the privilege
of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall
be denied. (emphases supplied)
Substantial evidence has been defined as such
relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. 95
After careful perusal of the evidence presented, we
affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito
Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The
abduction, detention, torture, and escape of the
respondents were narrated by respondent Raymond
Manalo in a clear and convincing manner. His
account is dotted with countless candid details of
respondents' harrowing experience and tenacious will
to escape, captured through his different senses and
etched in his memory. A few examples are the
following: "Sumilip ako sa isang haligi ng kamalig at
nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng
mga sundalo ang tunog na galing sa istiryo ng
sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol
ni Manuel."97 "May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa may
palaisdaan kung saan ginamit ko ang bato para
tanggalin ang mga kadena."99 "Tinanong ko sa isang
kapit-bahay kung paano ako makakakuha ng cell
phone; sabi ko gusto kong i-text ang isang babae na
nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate court,
largely based on respondent Raymond Manalo's
affidavit and testimony, viz:
...the abduction was perpetrated by armed
men who were sufficiently identified by the
petitioners (herein respondents) to be military
personnel and CAFGU auxiliaries. Raymond
recalled that the six armed men who barged
into his house through the rear door were
military men based on their attire of fatigue
pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula
de la Cruz, all members of the CAFGU and
residents of Muzon, San Ildefonso, Bulacan,
and the brothers Randy Mendoza and Rudy
Mendoza, also CAFGU members, served as
lookouts during the abduction. Raymond was
sure that three of the six military men were
Ganata, who headed the abducting team,
Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as
narrated by the petitioners, validated their
assertion of the participation of the elements
of the 7th Infantry Division, Philippine Army,
and their CAFGU auxiliaries.
We are convinced, too, that the reason for the
abduction was the suspicion that the
petitioners were either members or
sympathizers of the NPA, considering that the
abductors were looking for Ka Bestre, who
turned out to be Rolando, the brother of
petitioners.
The efforts exerted by the Military Command
to look into the abduction were, at best,
merely superficial. The investigation of the
Provost Marshall of the 7th Infantry Division
focused on the one-sided version of the
CAFGU auxiliaries involved. This one-
sidedness might be due to the fact that the
Provost Marshall could delve only into the
participation of military personnel, but even
then the Provost Marshall should have
refrained from outrightly exculpating the
CAFGU auxiliaries he perfunctorily
investigated...
Gen. Palparan's participation in the abduction
was also established. At the very least, he
was aware of the petitioners' captivity at the
hands of men in uniform assigned to his
command. In fact, he or any other officer
tendered no controversion to the firm claim of
Raymond that he (Gen. Palparan) met them in
person in a safehouse in Bulacan and told
them what he wanted them and their parents
to do or not to be doing. Gen. Palparan's
direct and personal role in the abduction might
not have been shown but his knowledge of
the dire situation of the petitioners during their
long captivity at the hands of military
personnel under his command bespoke of his
indubitable command policy that unavoidably
encouraged and not merely tolerated the
abduction of civilians without due process of
law and without probable cause.
In the habeas proceedings, the Court, through
the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr.,
member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and
convincing evidence to establish that M/Sgt.
Rizal Hilario had anything to do with the
abduction or the detention. Hilario's
involvement could not, indeed, be then
established after Evangeline Francisco, who
allegedly saw Hilario drive the van in which
the petitioners were boarded and ferried
following the abduction, did not testify. (See
the decision of the habeas proceedings at
rollo, p. 52)
However, in this case, Raymond attested that
Hilario drove the white L-300 van in which the
petitioners were brought away from their
houses on February 14, 2006. Raymond also
attested that Hilario participated in
subsequent incidents during the captivity of
the petitioners, one of which was when Hilario
fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in
Pinaud, San Ildefonso, Bulacan where they
were detained for at least a week in a house
of strong materials (Exhibit D, rollo, p. 205)
and then Hilario (along with Efren) brought
them to Sapang, San Miguel, Bulacan on
board the Revo, to an unfinished house inside
the compound of Kapitan where they were
kept for more or less three months. (Exhibit D,
rollo, p. 205) It was there where the petitioners
came face to face with Gen. Palparan. Hilario
and Efren also brought the petitioners one
early morning to the house of the petitioners'
parents, where only Raymond was presented
to the parents to relay the message from Gen.
Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they
would not again see their sons should they
join any rallies to denounce human rights
violations. (Exhibit D, rollo, pp. 205-206)
Hilario was also among four Master Sergeants
(the others being Arman, Ganata and
Cabalse) with whom Gen. Palparan
conversed on the occasion when Gen.
Palparan required Raymond to take the
medicines for his health. (Exhibit D, rollo, p.
206) There were other occasions when the
petitioners saw that Hilario had a direct hand
in their torture.
It is clear, therefore, that the participation of
Hilario in the abduction and forced
disappearance of the petitioners was
established. The participation of other military
personnel like Arman, Ganata, Cabalse and
Caigas, among others, was similarly
established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas
Court found them personally involved in the
abduction. We also do, for, indeed, the
evidence of their participation is
overwhelming.101
We reject the claim of petitioners that respondent
Raymond Manalo's statements were not corroborated
by other independent and credible pieces of
evidence.102 Raymond's affidavit and testimony were
corroborated by the affidavit of respondent Reynaldo
Manalo. The testimony and medical reports prepared
by forensic specialist Dr. Molino, and the pictures of
the scars left by the physical injuries inflicted on
respondents,103 also corroborate respondents'
accounts of the torture they endured while in
detention. Respondent Raymond Manalo's familiarity
with the facilities in Fort Magsaysay such as the
"DTU," as shown in his testimony and confirmed by
Lt. Col. Jimenez to be the "Division Training
Unit,"104 firms up respondents' story that they were
detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-
American Commission on Human Rights, the
Commission considered similar evidence, among
others, in finding that complainant Sister Diana Ortiz
was abducted and tortured by agents of the
Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989.
The Commission's findings of fact were mostly based
on the consistent and credible statements, written and
oral, made by Sister Ortiz regarding her
ordeal.106 These statements were supported by her
recognition of portions of the route they took when
she was being driven out of the military installation
where she was detained.107 She was also examined
by a medical doctor whose findings showed that the
111 circular second degree burns on her back and
abrasions on her cheek coincided with her account of
cigarette burning and torture she suffered while in
detention.108
With the secret nature of an enforced disappearance
and the torture perpetrated on the victim during
detention, it logically holds that much of the
information and evidence of the ordeal will come from
the victims themselves, and the veracity of their
account will depend on their credibility and
candidness in their written and/or oral statements.
Their statements can be corroborated by other
evidence such as physical evidence left by the torture
they suffered or landmarks they can identify in the
places where they were detained. Where powerful
military officers are implicated, the hesitation of
witnesses to surface and testify against them comes
as no surprise.
We now come to the right of the respondents to the
privilege of the writ of Amparo. There is no quarrel
that the enforced disappearance of both respondents
Raymond and Reynaldo Manalo has now passed as
they have escaped from captivity and surfaced. But
while respondents admit that they are no longer in
detention and are physically free, they assert that they
are not "free in every sense of the word"109 as their
"movements continue to be restricted for fear that
people they have named in their Judicial Affidavits
and testified against (in the case of Raymond) are still
at large and have not been held accountable in any
way. These people are directly connected to the
Armed Forces of the Philippines and are, thus, in a
position to threaten respondents' rights to life,
liberty and security."110 (emphasis supplied)
Respondents claim that they are under threat of
being once again abducted, kept captive or even
killed, which constitute a direct violation of their right
to security of person.111
Elaborating on the "right to security, in general,"
respondents point out that this right is "often
associated with liberty;" it is also seen as an
"expansion of rights based on the prohibition against
torture and cruel and unusual punishment."
Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they
submit that their rights "to be kept free from torture
and from incommunicado detention and solitary
detention places112 fall under the general coverage of
the right to security of person under the writ
of Amparo." They submit that the Court ought to give
an expansive recognition of the right to security of
person in view of the State Policy under Article II of
the 1987 Constitution which enunciates that, "The
State values the dignity of every human person and
guarantees full respect for human rights." Finally, to
justify a liberal interpretation of the right to security of
person, respondents cite the teaching in Moncupa v.
Enrile113 that "the right to liberty may be made more
meaningful only if there is no undue restraint by the
State on the exercise of that liberty" 114 such as a
requirement to "report under unreasonable restrictions
that amounted to a deprivation of liberty"115 or being
put under "monitoring and surveillance." 116
In sum, respondents assert that their cause of action
consists in the threat to their right to life and
liberty, and a violation of their right to security.
Let us put this right to security under the lens to
determine if it has indeed been violated as
respondents assert. The right to security or
the right to security of person finds a textual hook
in Article III, Section 2 of the 1987 Constitution which
provides, viz:
Sec. 2. The right of the people to be secure
in their persons, houses, papers and effects
against unreasonable searches and seizures
of whatever nature and for any purpose shall
be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally
by the judge...
At the core of this guarantee is the immunity of one's
person, including the extensions of his/her person -
houses, papers, and effects - against government
intrusion. Section 2 not only limits the state's power
over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the
person himself.117 The purpose of this provision was
enunciated by the Court in People v. CFI of Rizal,
Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee
against unreasonable searches and seizures
is to prevent violations of private security in
person and property and unlawful invasion of
the security of the home by officers of the law
acting under legislative or judicial sanction
and to give remedy against such usurpation
when attempted. (Adams v. New York, 192
U.S. 858; Alvero v. Dizon, 76 Phil. 637
[1946]). The right to privacy is an essential
condition to the dignity and happiness and
to the peace and security of every
individual, whether it be of home or of
persons and correspondence. (Tañada and
Carreon, Political Law of the Philippines, Vol.
 2, 139 [1962]). The constitutional inviolability
of this great fundamental right against
unreasonable searches and seizures must be
deemed absolute as nothing is closer to a
man's soul than the serenity of his privacy
and the assurance of his personal security.
Any interference allowable can only be for the
best causes and reasons.119 (emphases
supplied)
While the right to life under Article III, Section
1120 guarantees essentially the right to be alive121 -
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." 122 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 right to 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."123
A closer look at the right to security of person would
yield various permutations of the exercise of this right.
First, the right to security of person is "freedom
from fear." In its "whereas" clauses, the Universal
Declaration of Human Rights (UDHR) enunciates
that "a world in which human beings shall enjoy
freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest
aspiration of the common people." (emphasis
supplied) Some scholars postulate that "freedom from
fear" is not only an aspirational principle, but
essentially an individual international human right. 124 It
is the "right to security of person" as the word
"security" itself means "freedom from fear." 125 Article 3
of the UDHR provides, viz:
Everyone has the right to life, liberty
and security of person.126 (emphasis
supplied)
In furtherance of this right declared in the UDHR,
Article 9(1) of the International Covenant on Civil
and Political Rights (ICCPR) also provides for the
right to security of person, viz:
1. Everyone has the right to liberty
and security of person. No one shall be
subjected to arbitrary arrest or detention. No
one shall be deprived of his liberty except on
such grounds and in accordance with such
procedure as are established by law.
(emphasis supplied)
The Philippines is a signatory to both the UDHR and
the ICCPR.
In the context of Section 1 of the Amparo Rule,
"freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable
wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the
same stimulus can range from being baseless to well-
founded as people react differently. The degree of
fear can vary from one person to another with the
variation of the prolificacy of their imagination,
strength of character or past experience with the
stimulus. Thus, in the Amparo context, it is more
correct to say that the "right to security" is actually
the "freedom from threat." Viewed in this light, the
"threatened with violation" Clause in the latter part of
Section 1 of the Amparo Rule is a form of violation of
the right to security mentioned in the earlier part of the
provision.127
Second, the right to security of person is a
guarantee of bodily and psychological integrity or
security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, one's body cannot
be searched or invaded without a search
warrant.128 Physical injuries inflicted in the context of
extralegal killings and enforced disappearances
constitute more than a search or invasion of the body.
It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life
itself escalates. Notably, in criminal law, physical
injuries constitute a crime against persons because
they are an affront to the bodily integrity or security of
a person.129
Physical torture, force, and violence are a severe
invasion of bodily integrity. When employed to vitiate
the free will such as to force the victim to admit,
reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and
psychological integrity as the dignity of the human
person includes the exercise of free will. Article III,
Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or
intimidation, or any other means which vitiate
the free will shall be used against him (any
 person under investigation for the commission
of an offense). Secret detention places,
solitary, incommunicado or other similar forms
of detention are prohibited.
Parenthetically, under this provision, threat and
intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless
constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from
dehumanizing abuses of persons under investigation
for the commission of an offense. Victims of enforced
disappearances who are not even under such
investigation should all the more be protected from
these degradations.
An overture to an interpretation of the right to security
of person as a right against torture was made by the
European Court of Human Rights (ECHR) in the
recent case of Popov v. Russia.130 In this case, the
claimant, who was lawfully detained, alleged that the
state authorities had physically abused him in prison,
thereby violating his right to security of person. Article
5(1) of the European Convention on Human Rights
provides, viz: "Everyone has the right to liberty and
security of person. No one shall be deprived of his
liberty save in the following cases and in accordance
with a procedure prescribed by law ..." (emphases
supplied) Article 3, on the other hand, provides that
"(n)o one shall be subjected to torture or to inhuman
or degrading treatment or punishment." Although the
application failed on the facts as the alleged ill-
treatment was found baseless, the ECHR relied
heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to
the attention of domestic authorities at the
time when they could reasonably have been
expected to take measures in order to ensure
his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure
his security in custody or to comply with the
procedural obligation under Art.3 to conduct
an effective investigation into his
allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of
Discrimination against Women has also made a
statement that the protection of the bodily integrity of
women may also be related to the right to security
and liberty, viz:
...gender-based violence which impairs or
nullifies the enjoyment by women of human
rights and fundamental freedoms under
general international law or under specific
human rights conventions is discrimination
within the meaning of article 1 of the
Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights
and freedoms include . . . the right to liberty
and security of person.132
Third, the right to security of person is a
guarantee of protection of one's rights by the
government. In the context of the writ of Amparo, this
right is built into the guarantees of the right to life
and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as
freedom from threat and guarantee of bodily and
psychological integrity) under Article III, Section 2.
The right to security of person in this third sense is a
corollary of the policy that the State "guarantees full
respect for human rights" under Article II, Section 11
of the 1987 Constitution.133 As the government is the
chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty
and security of person is rendered ineffective if
government does not afford protection to these rights
especially when they are under threat. Protection
includes conducting effective investigations,
organization of the government apparatus to extend
protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice.
The Inter-American Court of Human Rights stressed
the importance of investigation in the Velasquez
Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken
in a serious manner and not as a mere
formality preordained to be ineffective. An
investigation must have an objective and
be assumed by the State as its own legal
duty, not as a step taken by private
interests that depends upon the initiative
of the victim or his family or upon their offer
of proof, without an effective search for the
truth by the government.135
This third sense of the right to security of person as a
guarantee of government protection has been
interpreted by the United Nations' Human Rights
Committee136 in not a few cases involving Article 9137 of
the ICCPR. While the right to security of person
appears in conjunction with the right to liberty under
Article 9, the Committee has ruled that the right to
security of person can exist independently of the
right to liberty. In other words, there need not
necessarily be a deprivation of liberty for the right to
security of person to be invoked. In Delgado Paez v.
Colombia,138 a case involving death threats to a
religion teacher at a secondary school in Leticia,
Colombia, whose social views differed from those of
the Apostolic Prefect of Leticia, the Committee
held, viz:
The first sentence of article 9 does not stand
as a separate paragraph. Its location as a part
of paragraph one could lead to the view that
the right to security arises only in the context
of arrest and detention. The travaux
préparatoires indicate that the discussions of
the first sentence did indeed focus on matters
dealt with in the other provisions of article
9. The Universal Declaration of Human
Rights, in article 3, refers to the right to
life, the right to liberty and the right to
security of the person. These elements
have been dealt with in separate clauses in
the Covenant. Although in the Covenant
the only reference to the right of security
of person is to be found in article 9, there
is no evidence that it was intended to
narrow the concept of the right to security
only to situations of formal deprivation of
liberty. At the same time, States parties
have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the
case that, as a matter of law, States can
ignore known threats to the life of persons
under their jurisdiction, just because that
he or she is not arrested or otherwise
detained. States parties are under an
obligation to take reasonable and
appropriate measures to protect them. An
interpretation of article 9 which would
allow a State party to ignore threats to the
personal security of non-detained persons
within its jurisdiction would render totally
ineffective the guarantees of the
Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v.
Zambia,140 which involved a political activist and
prisoner of conscience who continued to be
intimidated, harassed, and restricted in his
movements following his release from detention. In a
catena of cases, the ruling of the Committee was of a
similar import: Bahamonde v. Equatorial
Guinea,141 involving discrimination, intimidation and
persecution of opponents of the ruling party in that
state; Tshishimbi v. Zaire,142 involving the abduction
of the complainant's husband who was a supporter of
democratic reform in Zaire; Dias v.
Angola,143 involving the murder of the
complainant's partner and the harassment he
(complainant) suffered because of his
investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on the
chairman of an opposition alliance.
Similarly, the European Court of Human Rights
(ECHR) has interpreted the "right to security" not only
as prohibiting the State from arbitrarily depriving
liberty, but imposing a positive duty on the State to
afford protection of the right to liberty.145 The ECHR
interpreted the "right to security of person" under
Article 5(1) of the European Convention of Human
Rights in the leading case on disappearance of
persons, Kurt v. Turkey.146 In this case, the claimant's
son had been arrested by state authorities and had
not been seen since. The family's requests for
information and investigation regarding his
whereabouts proved futile. The claimant suggested
that this was a violation of her son's right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only
have been effected in conformity with the
substantive and procedural rules of national
law but must equally be in keeping with the
very purpose of Article 5, namely to protect
the individual from arbitrariness... Having
assumed control over that individual it is
incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5
must be seen as requiring the authorities
to take effective measures to safeguard
against the risk of disappearance and to
conduct a prompt effective investigation
into an arguable claim that a person has
been taken into custody and has not been
seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security
of person to the case at bar, we now determine
whether there is a continuing violation of respondents'
right to security.
First, the violation of the right to security as
freedom from threat to respondents' life, liberty
and security.
While respondents were detained, they were
threatened that if they escaped, their families,
including them, would be killed. In Raymond's
narration, he was tortured and poured with gasoline
after he was caught the first time he attempted to
escape from Fort Magsaysay. A call from a certain
"Mam," who wanted to see him before he was killed,
spared him.
This time, respondents have finally escaped. The
condition of the threat to be killed has come to pass. It
should be stressed that they are now free from
captivity not because they were released by virtue of
a lawful order or voluntarily freed by their abductors. It
ought to be recalled that towards the end of their
ordeal, sometime in June 2007 when respondents
were detained in a camp in Limay, Bataan,
respondents' captors even told them that they were
still deciding whether they should be executed.
Respondent Raymond Manalo attested in his
affidavit, viz:
Kinaumagahan, naka-kadena pa kami.
Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa
ng mga sundalo kung papatayin kami o
hindi.148
The possibility of respondents being executed stared
them in the eye while they were in detention. With
their escape, this continuing threat to their life is
apparent, moreso now that they have surfaced and
implicated specific officers in the military not only in
their own abduction and torture, but also in those of
other persons known to have disappeared such as
Sherlyn Cadapan, Karen Empeño, and Manuel
Merino, among others.
Understandably, since their escape, respondents
have been under concealment and protection by
private citizens because of the threat to their life,
liberty and security. The threat vitiates their free will
as they are forced to limit their movements or
activities.149 Precisely because respondents are being
shielded from the perpetrators of their abduction, they
cannot be expected to show evidence of overt acts of
threat such as face-to-face intimidation or written
threats to their life, liberty and security. Nonetheless,
the circumstances of respondents' abduction,
detention, torture and escape reasonably support a
conclusion that there is an apparent threat that they
will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty,
security, and life, actionable through a petition for a
writ of Amparo.
Next, the violation of the right to security as
protection by the government. Apart from the
failure of military elements to provide protection to
respondents by themselves perpetrating the
abduction, detention, and torture, they also miserably
failed in conducting an effective investigation of
respondents' abduction as revealed by the testimony
and investigation report of petitioners' own witness, Lt.
Col. Ruben Jimenez, Provost Marshall of the
7th Infantry Division.
The one-day investigation conducted by Jimenez was
very limited, superficial, and one-sided. He merely
relied on the Sworn Statements of the six implicated
members of the CAFGU and civilians whom he met in
the investigation for the first time. He was present at
the investigation when his subordinate Lingad was
taking the sworn statements, but he did not propound
a single question to ascertain the veracity of their
statements or their credibility. He did not call for other
witnesses to test the alibis given by the six implicated
persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National
Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP
should adopt rules of action in the event the writ
of Amparo is issued by a competent court against any
members of the AFP, which should essentially include
verification of the identity of the aggrieved party;
recovery and preservation of relevant evidence;
identification of witnesses and securing statements
from them; determination of the cause, manner,
location and time of death or disappearance;
identification and apprehension of the person or
persons involved in the death or disappearance; and
bringing of the suspected offenders before a
competent court.150 Petitioner AFP Chief of Staff also
submitted his own affidavit attesting that he received
the above directive of respondent Secretary of
National Defense and that acting on this directive, he
immediately caused to be issued a directive to the
units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the
recent reappearance of the respondents, and
undertook to provide results of the investigations to
respondents.151 To this day, however, almost a year
after the policy directive was issued by petitioner
Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of
the investigation which they now seek through the
instant petition for a writ of Amparo.
Under these circumstances, there is substantial
evidence to warrant the conclusion that there is a
violation of respondents' right to security as a
guarantee of protection by the government.
In sum, we conclude that respondents' right to
security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of
person. Their right to security as a guarantee of
protection by the government is likewise violated by
the ineffective investigation and protection on the part
of the military.
Finally, we come to the reliefs granted by the Court of
Appeals, which petitioners question.
First, that petitioners furnish respondents all official
and unofficial reports of the
investigation undertaken in connection with their
case, except those already in file with the court.
Second, that petitioners confirm in writing the
present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the
Court of Appeals all medical reports, records and
charts, and reports of any treatment given or
recommended and medicines prescribed, if any,
to the Manalo brothers, to include a list of medical
personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs,
petitioners argue that the production order sought by
respondents partakes of the characteristics of a
search warrant. Thus, they claim that the requisites
for the issuance of a search warrant must be
complied with prior to the grant of the production
order, namely: (1) the application must be under oath
or affirmation; (2) the search warrant must particularly
describe the place to be searched and the things to
be seized; (3) there exists probable cause with one
specific offense; and (4) the probable cause must be
personally determined by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce.152 In the case at bar,
however, petitioners point out that other than the
bare, self-serving and vague allegations made by
respondent Raymond Manalo in his unverified
declaration and affidavit, the documents respondents
seek to be produced are only mentioned generally by
name, with no other supporting details. They also
argue that the relevancy of the documents to be
produced must be apparent, but this is not true in the
present case as the involvement of petitioners in the
abduction has not been shown.
Petitioners' arguments do not hold water. The
production order under the Amparo Rule should not
be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of the
government from the demand of the people such as
respondents.
Instead, the Amparo production order may be likened
to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 1. Motion for production or inspection
order.
Upon motion of any party showing
good cause therefor, the court in
which an action is pending may (a)
order any party to produce and permit
the inspection and copying or
photographing, by or on behalf of the
moving party, of any designated
documents, papers, books of
accounts, letters, photographs, objects
or tangible things, not privileged,
which constitute or contain evidence
material to any matter involved in the
action and which are in his
possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge
Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books
and papers of Material Distributors (Phil.) Inc. The
company questioned the issuance of the subpoena on
the ground that it violated the search and seizure
clause. The Court struck down the argument and held
that the subpoena pertained to a civil procedure that
"cannot be identified or confused with unreasonable
searches prohibited by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff
himself undertook "to provide results of the
investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor
the Writ of Amparo has been sought for as soon as
the same has been furnished Higher headquarters."
With respect to the second and third reliefs,
petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, as well as the submission
of a list of medical personnel, is irrelevant, improper,
immaterial, and unnecessary in the resolution of the
petition for a writ of Amparo. They add that it will
unnecessarily compromise and jeopardize the
exercise of official functions and duties of military
officers and even unwittingly and unnecessarily
expose them to threat of personal injury or even
death.
On the contrary, the disclosure of the present places
of assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and
detention, is relevant in ensuring the safety of
respondents by avoiding their areas of territorial
jurisdiction. Such disclosure would also help ensure
that these military officers can be served with notices
and court processes in relation to any investigation
and action for violation of the respondents' rights. The
list of medical personnel is also relevant in securing
information to create the medical history of
respondents and make appropriate medical
interventions, when applicable and necessary.

In blatant violation of our hard-won guarantees to life,

liberty and security, these rights are snuffed out from
victims of extralegal killings and enforced
disappearances. The writ of Amparo is a tool that
gives voice to preys of silent guns and prisoners
behind secret walls.

WHEREFORE, premises considered, the petition

is DISMISSED. The Decision of the Court of Appeals
dated December 26, 2007 is affirmed.

SO ORDERED.