G.R. No.

100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND

GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again
placed into focus in this petition for prohibition, with prayer for a restraining order and
preliminary injunction. The petitioners ask us to prohibit public respondent CHR from further
hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."

The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo
(one of the petitioners) in his capacity as an Executive Officer of the Quezon City Integrated
Hawkers Management Council under the Office of the City Mayor, was sent to, and received by,
the private respondents (being the officers and members of the North EDSA Vendors
Association, Incorporated). In said notice, the respondents were given a grace-period of three (3)
days (up to 12 July 1990) within which to vacate the questioned premises of North EDSA.1 Prior
to their receipt of the demolition notice, the private respondents were informed by petitioner
Quimpo that their stalls should be removed to give way to the "People's Park".2 On 12 July
1990, the group, led by their President Roque Fermo, filed a letter-complaint (Pinag-samang
Sinumpaang Salaysay) with the CHR against the petitioners, asking the late CHR Chairman
Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of
Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores, and
carinderia along North EDSA. The complaint was docketed as CHR Case No. 90-1580.3 On 23
July 1990, the CHR issued an Order, directing the petitioners "to desist from demolishing
the stalls and shanties at North EDSA pending resolution of the vendors/squatters'
complaint before the Commission" and ordering said petitioners to appear before the CHR.4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as
well as CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried
out the demolition of private respondents' stalls, sari-sari stores and carinderia,5 the CHR, in its
resolution of 1 August 1990, ordered the disbursement of financial assistance of not more than
P200,000.00 in favor of the private respondents to purchase light housing materials and food
under the Commission's supervision and again directed the petitioners to "desist from further
demolition, with the warning that violation of said order would lead to a citation for contempt
and arrest."6
A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also
averred, among other things, that:

1. this case came about due to the alleged violation by the (petitioners) of the
Inter-Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed
on a moratorium in the demolition of the dwellings of poor dwellers in Metro-
Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to

therein refers to moratorium in the demolition of the structures of poor dwellers;

4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;

5. that the complainants (were) occupying government land, particularly the

sidewalk of EDSA corner North Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if
already issued, upon grounds clearly specified by law and ordinance.8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the
motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that
the Commission's authority should be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly violated in this case (were)
not civil and political rights, (but) their privilege to engage in business."9

On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with
the contempt charge that had meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss was still then unresolved).10

In an Order,11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying
out the demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it
imposed a fine of P500.00 on each of them.

On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to dismiss and
supplemental motion to dismiss, in this wise:
 Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of
the gross violations of their human and constitutional rights. The motion to
dismiss should be and is hereby DENIED for lack of merit.13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only
a paper tiger limited only to investigating civil and political rights, but it (should) be (considered)
a quasi-judicial body with the power to provide appropriate legal measures for the protection of
human rights of all persons within the Philippines . . . ." It added:

The right to earn a living is a right essential to one's right to development, to life
and to dignity. All these brazenly and violently ignored and trampled upon by
respondents with little regard at the same time for the basic rights of women and
children, and their health, safety and welfare. Their actions have psychologically
scarred and traumatized the children, who were witness and exposed to such a
violent demonstration of Man's inhumanity to man.

In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was denied.

Hence, this recourse.

The petition was initially dismissed in our resolution15 of 25 June 1991; it was subsequently
reinstated, however, in our resolution16 of 18 June 1991, in which we also issued a temporary
restraining order, directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-
1580."17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose
stalls were demolished by the petitioners at the instance and authority given by the Mayor of
Quezon City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the
demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his
comment for public respondent CHR. The latter thus filed its own comment,18 through Hon.
Samuel Soriano, one of its Commissioners. The Court also resolved to dispense with the
comment of private respondent Roque Fermo, who had since failed to comply with the
resolution, dated 18 July 1991, requiring such comment.

The petition has merit.

The Commission on Human Rights was created by the 1987
Constitution. It was formally constituted by then President Corazon Aquino via Executive Order
No. 163,20 issued on 5 May 1987, in the exercise of her legislative power at the time. It
succeeded, but so superseded as well, the Presidential Committee on Human Rights.21

The powers and functions22 of the Commission are defined by the 1987 Constitution, thus: to —

(1) Investigate, on its own or on complaint by any party, all forms of human
rights violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide
for preventive measures and legal aid services to the underprivileged whose
human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to

enhance respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and
to provide for compensation to victims of violations of human rights, or their
families;

(7) Monitor the Philippine Government's compliance with international treaty

obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to
determine the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore been shared by this Court. In Cariño v.
Commission on Human Rights,24 the Court, through then Associate Justice, now Chief Justice
Andres Narvasa, has observed that it is "only the first of the enumerated powers and functions
that bears any resemblance to adjudication or adjudgment," but that resemblance can in no way
be synonymous to the adjudicatory power itself. The Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental

law to be another court or quasi-judicial agency in this country, or duplicate much
less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative
power is that it may investigate, i.e., receive evidence and make findings of fact as
regards claimed human rights violations involving civil and political rights. But
fact finding is not adjudication, and cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not a
judicial function, properly speaking. To be considered such, the faculty of
receiving evidence and making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those factual conclusions to
the end that the controversy may be decided or determined authoritatively, finally
and definitively, subject to such appeals or modes of review as may be provided
by law. This function, to repeat, the Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other kernel of this
controversy and, its is, to determine the extent of CHR's investigative power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to
define it, albeit not a few have tried, could at best be described as inconclusive. Let us observe.
In a symposium on human rights in the Philippines, sponsored by the University of the
Philippines in 1977, one of the questions that has been propounded is "(w)hat do you understand
by "human rights?" The participants, representing different sectors of the society, have given the
following varied answers:

Human rights are the basic rights which inhere in man by virtue of his humanity.
They are the same in all parts of the world, whether the Philippines or England,
Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights of
the accused to due process of law; political rights, such as the right to elect public
officials, to be elected to public office, and to form political associations and
engage in politics; and social rights, such as the right to an education,
employment, and social services.25

Human rights are the entitlement that inhere in the individual person from the
sheer fact of his humanity. . . . Because they are inherent, human rights are not
granted by the State but can only be recognized and protected by it.26
 (Human rights include all) the civil, political, economic, social, and cultural rights
defined in the Universal Declaration of Human Rights.27

Human rights are rights that pertain to man simply because he is human. They are
part of his natural birth, right, innate and inalienable.28

The Universal Declaration of Human Rights, as well as, or more specifically, the International
Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and
Political Rights, suggests that the scope of human rights can be understood to include those that
relate to an individual's social, economic, cultural, political and civil relations. It thus seems to
closely identify the term to the universally accepted traits and attributes of an individual, along
with what is generally considered to be his inherent and inalienable rights, encompassing almost
all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional
Commission in adopting the specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back at the country's experience
under the martial law regime which may have, in fact, impelled the inclusions of those
provisions in our fundamental law. Many voices have been heard. Among those voices, aptly
represented perhaps of the sentiments expressed by others, comes from Mr. Justice J.B.L.
Reyes, a respected jurist and an advocate of civil liberties, who, in his paper, entitled "Present
State of Human Rights in the Philippines,"29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their Bill of
Rights most of the human rights expressed in the International Covenant, these
rights became unavailable upon the proclamation of Martial Law on 21
September 1972. Arbitrary action then became the rule. Individuals by the
thousands became subject to arrest upon suspicion, and were detained and held
for indefinite periods, sometimes for years, without charges, until ordered
released by the Commander-in-Chief or this representative. The right to petition
for the redress of grievances became useless, since group actions were forbidden.
So were strikes. Press and other mass media were subjected to censorship and
short term licensing. Martial law brought with it the suspension of the writ of
habeas corpus, and judges lost independence and security of tenure, except
members of the Supreme Court. They were required to submit letters of
resignation and were dismissed upon the acceptance thereof. Torture to extort
confessions were practiced as declared by international bodies like Amnesty
International and the International Commission of Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the
following discussions during its 26 August 1986 deliberations:

MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of
the importance of human rights and also because civil and political rights have
been determined by many international covenants and human rights legislations in
the Philippines, as well as the Constitution, specifically the Bill of Rights and
subsequent legislation. Otherwise, if we cover such a wide territory in area, we
might diffuse its impact and the precise nature of its task, hence, its effectivity
would also be curtailed.

So, it is important to delienate the parameters of its tasks so that the commission
can be most effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights
are very broad. The Article on the Bill of Rights covers civil and political rights.
Every single right of an individual involves his civil right or his political right. So,
where do we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in
the language of human rights advocates, as well as in the Universal Declaration of
Human Rights which addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on. These are very
specific rights that are considered enshrined in many international documents and
legal instruments as constituting civil and political rights, and these are precisely
what we want to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as
defined in the Universal Declaration of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil
and Political Rights distinguished this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?

MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed
to the proper courts and authorities.

xxx xxx xxx

MR. BENGZON. So, we will authorize the commission to define its functions,
and, therefore, in doing that the commission will be authorized to take under its
wings cases which perhaps heretofore or at this moment are under the jurisdiction
of the ordinary investigative and prosecutorial agencies of the government. Am I
correct?

MR. GARCIA. No. We have already mentioned earlier that we would like to
define the specific parameters which cover civil and political rights as covered by
the international standards governing the behavior of governments regarding the
particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which
we would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we
are really trying to say is, perhaps, at the proper time we could specify all those
rights stated in the Universal Declaration of Human Rights and defined as human
rights. Those are the rights that we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the
Bill of Rights covered by human rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I
would like to state that in the past regime, everytime we invoke the violation of
human rights, the Marcos regime came out with the defense that, as a matter of
fact, they had defended the rights of people to decent living, food, decent housing
and a life consistent with human dignity.

So, I think we should really limit the definition of human rights to political rights.
Is that the sense of the committee, so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised
by the previous speaker.

There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners
and the prevention of tortures; 3) fair and public trials; 4) cases of
disappearances; 5) salvagings and hamletting; and 6) other crimes committed
against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as
much as possible, without prejudice to future expansion. The coverage of the
concept and jurisdictional area of the term "human rights". I was actually
disturbed this morning when the reference was made without qualification to the
rights embodied in the universal Declaration of Human Rights, although later on,
this was qualified to refer to civil and political rights contained therein.

If I remember correctly, Madam President, Commissioner Garcia, after

mentioning the Universal Declaration of Human Rights of 1948, mentioned or
linked the concept of human right with other human rights specified in other
convention which I do not remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture

of 1985?

MR. GUINGONA. I do not know, but the commissioner mentioned another.

MR. GARCIA. Madam President, the other one is the International Convention
on Civil and Political Rights of which we are signatory.

MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
covenant mentioned. It is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering whether it would
be wise to link our concept of human rights to general terms like "convention,"
rather than specify the rights contained in the convention.

As far as the Universal Declaration of Human Rights is concerned, the

Committee, before the period of amendments, could specify to us which of these
articles in the Declaration will fall within the concept of civil and political rights,
not for the purpose of including these in the proposed constitutional article, but to
give the sense of the Commission as to what human rights would be included,
without prejudice to expansion later on, if the need arises. For example, there was
no definite reply to the question of Commissioner Regalado as to whether the
right to marry would be considered a civil or a social right. It is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific civil and
political rights that we felt must be envisioned initially by this provision —
freedom from political detention and arrest prevention of torture, right to fair
and public trials, as well as crimes involving disappearance, salvagings,
hamlettings and collective violations. So, it is limited to politically related crimes
precisely to protect the civil and political rights of a specific group of individuals,
and therefore, we are not opening it up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no
longer linking his concept or the concept of the Committee on Human Rights with
the so-called civil or political rights as contained in the Universal Declaration of
Human Rights.
 MR. GARCIA. When I mentioned earlier the Universal Declaration of Human
Rights, I was referring to an international instrument.

MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific
article therein, but only to those that pertain to the civil and politically related, as
we understand it in this Commission on Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction

between civil and social rights.

MR. GARCIA. There are two international covenants: the International

Covenant and Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. The second covenant contains all the
different rights-the rights of labor to organize, the right to education, housing,
shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the
committee to those that the Gentlemen has specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more abused
and oppressed. Another reason is, the cases involved are very delicate — torture,
salvaging, picking up without any warrant of arrest, massacre — and the persons
who are allegedly guilty are people in power like politicians, men in the military
and big shots. Therefore, this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission,
especially for the little Filipino, the little individual who needs this kind of help
and cannot get it. And I think we should concentrate only on civil and political
violations because if we open this to land, housing and health, we will have no
place to go again and we will not receive any response. . . .30 (emphasis
supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a
provision empowering the Commission on Human Rights to "investigate, on its own or on
complaint by any party, all forms of human rights violations involving civil and political rights"
(Sec. 1).

The term "civil rights,"31 has been defined as referring —

(t)o those (rights) that belong to every citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as otherwise defined
civil rights are rights appertaining to a person by virtue of his citizenship in a state
or community. Such term may also refer, in its general sense, to rights capable of
being enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious
persecution, unreasonable searches and seizures, and imprisonment for debt.32

Political rights,33 on the other hand, are said to refer to the right to participate, directly or
indirectly, in the establishment or administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the rights appurtenant to citizenship vis-a-
vis the management of government.34

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent

that the delegates envisioned a Commission on Human Rights that would focus its attention to
the more severe cases of human rights violations. Delegate Garcia, for instance, mentioned such
areas as the "(1) protection of rights of political detainees, (2) treatment of prisoners and the
prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and
hamletting, and (6) other crimes committed against the religious." While the enumeration has not
likely been meant to have any preclusive effect, more than just expressing a statement of priority,
it is, nonetheless, significant for the tone it has set. In any event, the delegates did not apparently
take comfort in peremptorily making a conclusive delineation of the CHR's scope of
investigatorial jurisdiction. They have thus seen it fit to resolve, instead, that "Congress may
provide for other cases of violations of human rights that should fall within the authority of the
Commission, taking into account its recommendation."35

In the particular case at hand, there is no cavil that what are sought to be demolished are the
stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a "People's Park". More than that,
the land adjoins the North EDSA of Quezon City which, this Court can take judicial notice of, is
a busy national highway. The consequent danger to life and limb is not thus to be likewise
simply ignored. It is indeed paradoxical that a right which is claimed to have been violated is one
that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at
the standards hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we
are not prepared to conclude that the order for the demolition of the stalls, sari-sari stores and
carinderia of the private respondents can fall within the compartment of "human rights
violations involving civil and political rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with
the Rules of Court." Accordingly, the CHR acted within its authority in providing in its revised
rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the
appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of
Court." That power to cite for contempt, however, should be understood to apply only to
violations of its adopted operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in pursuing its investigative work.
The "order to desist" (a semantic interplay for a restraining order) in the instance before us,
however, is not investigatorial in character but prescinds from an adjudicative power that it does
not possess. In Export Processing Zone Authority vs. Commission on Human Rights,36 the
Court, speaking through Madame Justice Carolina Griño-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive

measures and legal aid services to the underprivileged whose human rights have
been violated or need protection" may not be construed to confer jurisdiction on
the Commission to issue a restraining order or writ of injunction for, it that were
the intention, the Constitution would have expressly said so. "Jurisdiction is
conferred only by the Constitution or by law". It is never derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of
preliminary injunction) which the CHR may seek from proper courts on behalf of
the victims of human rights violations. Not being a court of justice, the CHR itself
has no jurisdiction to issue the writ, for a writ of preliminary injunction may only
be issued "by the judge of any court in which the action is pending [within his
district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . . A
writ of preliminary injunction is an ancillary remedy. It is available only in a
pending principal action, for the preservation or protection of the rights and
interests of a party thereto, and for no other purpose." (footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government.37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid
to the vendors affected by the demolition is not an appropriate issue in the instant petition. Not
only is there lack of locus standi on the part of the petitioners to question the disbursement but,
more importantly, the matter lies with the appropriate administrative agencies concerned to
initially consider.

The public respondent explains that this petition for prohibition filed by the petitioners has
become moot and academic since the case before it (CHR Case No. 90-1580) has already been
fully heard, and that the matter is merely awaiting final resolution. It is true that prohibition is a
preventive remedy to restrain the doing of an act about to be done, and not intended to provide a
remedy for an act already accomplished. 38 Here, however, said Commission admittedly has yet
to promulgate its resolution in CHR Case No. 90-1580. The instant petition has been intended,
among other things, to also prevent CHR from precisely doing that.39

WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human
Rights is hereby prohibited from further proceeding with CHR Case No. 90-1580 and from
implementing the P500.00 fine for contempt. The temporary restraining order heretofore issued
by this Court is made permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo,
Quiason and Puno, JJ., concur.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA,
minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA
NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA,
CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and
represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN,
minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and
MA. CONCEPCION, all surnamed MISA, minors and represented by their parents
GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented
by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T.
CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO
JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and
CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA.
ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA
MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA
ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by
their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and
MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and
LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed
OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors,
represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors,
represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the
issue of whether the said petitioners have a cause of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for
the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all before the Court." The minors further
asseverate that they "represent their generation as well as generations yet unborn."4
Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or

approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and
verdant rainforests in which varied, rare and unique species of flora and fauna may be found;
these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are
also the habitat of indigenous Philippine cultures which have existed, endured and flourished
since time immemorial; scientific evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four
per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential,
industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a)
water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as
well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion
therein of salt water, incontrovertible examples of which may be found in the island of Cebu and
the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility
and agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum — approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora
and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of
the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-
billion peso dams constructed and operated for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to
process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such
as the phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted as
a matter of judicial notice. This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2
million hectares of said rainforests or four per cent (4.0%) of the country's land
area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or
25 hectares per hour — nighttime, Saturdays, Sundays and holidays included —
the Philippines will be bereft of forest resources after the end of this ensuing
decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of
fact, the environmental damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
— especially plaintiff minors and their successors — who may never see, use,
benefit from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the

natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left
with a country that is desertified (sic), bare, barren and devoid of the wonderful
flora, fauna and indigenous cultures which the Philippines had been abundantly
blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary

to the public policy enunciated in the Philippine Environmental Policy which, in
pertinent part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life

of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned

TLA's is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth"

and "make full and efficient use of natural resources (sic)." (Section 1,
Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16,
Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against
him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion,
the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no
cause of action against him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that
the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of
the plaintiffs-minors not only represent their children, but have also joined the latter in this
case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles
19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural
law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No.
192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion
in granting Timber License Agreements (TLAs) to cover more areas for logging than what is
available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts.
They likewise submit that even if TLAs may be considered protected by the said clause, it is well
settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law.
They see nothing in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the "protection by the state in
its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause
of action. They then reiterate the theory that the question of whether logging should be permitted
in the country is a political question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the petitioners' resources is not to
file an action to court, but to lobby before Congress for the passage of a bill that would ban
logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a certain
period of time — usually for twenty-five (25) years. During its effectivity, the same can neither
be revised nor cancelled unless the holder has been found, after due notice and hearing, to have
violated the terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would
be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted
Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not
take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class
suit. The subject matter of the complaint is of common and general interest not just to several,
but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare
that the plaintiffs therein are numerous and representative enough to ensure the full protection of
all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section
12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant
petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can,
for themselves, for others of their generation and for the succeeding generations, file a class suit.
Their personality to sue in behalf of the succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future generations.
10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find
for the petitioners and rule against the respondent Judge's challenged order for having been
issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of
the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:

Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.

This right unites with the right to health which is provided for in the
preceding section of the same article:
 Sec. 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right belongs
to a different category of rights altogether for it concerns nothing less than self-preservation and
self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all
forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of
the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby

disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the conservation,
development and utilization of the country's natural resources, 13 then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates
that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the public domain, as
well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present
and future generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to

ensure the sustainable use, development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development
and the use of the country's natural resources, not only for the present generation
but for future generations as well. It is also the policy of the state to recognize and
apply a true value system including social and environmental cost implications
relative to their utilization, development and conservation of our natural
resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value system that takes
into account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources

shall be primarily responsible for the implementation of the foregoing policy.
 (2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of the
DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos, and (c) to insure
the attainment of an environmental quality that is conducive to a life of dignity and well-being."
16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to
the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the
said right.

A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting
of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs
should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint
fails to state a cause of action, 19 the question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in
the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary
should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It
bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
 presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even
invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have
acted with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government
to strictly respect the said licenses according to their terms and conditions regardless of changes
in policy and the demands of public interest and welfare. He was aware that as correctly pointed
out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform
Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization

and disposition of forest resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful,

and is not a contract between the authority, federal, state, or municipal, granting it
and the person to whom it is granted; neither is it property or a property right, nor
does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments
by which the State regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they
are not deemed contracts within the purview of the due process of law clause [See
Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director
of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of
existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only been passed in the
exercise of the police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general welfare. In
Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other
words, the constitutional guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in the interest of public
health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
 contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could
apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for, save in cases of renewal, no contract
would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder
is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as defendants
the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

A.M. No. 1120-MJ May 5, 1976

DOMINADOR C. BALDOZA, complainant,

vs.
HON. JUDGE RODOLFO B. DIMAANO, respondent.

RESOLUTION

ANTONIO, J.:

In a verified letter-complaint dated September 9, 1975, the Municipal Secretary of Taal,

Batangas, charges Municipal Judge Rodolfo B. Dimaano, of the same municipality, with
abuse of authority in refusing to allow employees of the Municipal Mayor to examine the
criminal docket records of the Municipal Court to secure data in connection with their
contemplated report on the peace and order conditions of the said municipality. Respondent, in
answer to the complaint, stated that there has never been an intention to refuse access to official
court records; that although court records are among public documents open to inspection not
only by the parties directly involved but also by other persons who have legitimate interest to
such inspection, yet the same is always subject to reasonable regulation as to who, when, where
and how they may be inspected. He further asserted that a court has unquestionably the power to
prevent an improper use or inspection of its records and the furnishing of copies therefrom may
be refused where the person requesting is not motivated by a serious and legitimate interest but
acts out of whim or fancy or mere curiosity or to gratify private spite or to promote public
scandal.
In his answer, the respondent significantly observed:

Restrictions are imposed by the Court for fear of an abuse in the exercise of the
right. For fear that the dirty hands of partisan politics might again be at play,
Some of the cases filed and decided by the Court after the declaration of Martial
Law and years after the election still bore the stigma of partisan politics as shown
in the affidavits and testimonies of witnesses.

Without casting aspersion on any particular individual, it is worth mentioning,

that the padlocks of the door of the Court has recently been tampered by inserting
papers and matchsticks.

Under the circumstances, to allow an indiscriminate and unlimited exercise of the

right to free access, might do more harm than good to the citizenry of Taal.
Disorder and chaos might result defeating the very essence of their request. The
undersigned is just as interested as Mr. Baldoza in the welfare of the community
and the preservation of our democratic principles.

Be that as it may, a request of this magnitude cannot be immediately granted

without adequate deliberation and upon advisement, especially so in this case
where the undersigned doubts the propriety of such request. Hence, it is believed
that authority should first be secured from the Supreme Court, through the
Executive Judge, for the formulation of guidelines and policies on this matter.

The case was thereupon referred to Judge Francisco Mat. Riodique for investigation and report.
At the preliminary hearing on October 16, 1975, Taal Mayor Corazon A. Caniza filed a motion
to dismiss the complaint to preserve harmony and (cooperation among officers in the same
municipality. This motion was denied by the Investigating Judge, but after formal investigation,
he recommended the exoneration of respondent. Pertinent portion of his report reads as follows:

* * * When this case was heard, complainant Dominador Baldoza informed the
Court that he is aware of the motion to dismiss filed by Mayor Corazon A. Caniza
and that he is in conformity with the dismissal of the administrative charge
against Judge Rodolfo Dimaano. The Court asked him if he could prove his case
and he said he can. So, the Court denied his oral motion to dismiss and required
him to present his evidence. Complainant only manifested to the Court that he has
no oral evidence. The only evidence he has are the exchanged communication
which were all in writing and attached to the record between him and the
respondent. The Court asked the respondent what he has to say on the
documentary evidence of the complainant. He manifested that all his answers to
the complaint are all embodied in his answers filed with the Court.

A careful perusal, scrutiny, and study of the communications between the

complainant and the respondent, together with the answers filed by the latter,
reveal that there is no showing of abuse of authority on the part of the respondent.
The respondent allowed the complainant to open and view the docket books of the
 respondent under certain conditions and under his control and supervision.
Complainant admitted that he was aware of the rules and conditions imposed by
the respondent when he went to his office to view his docket books for the
purpose mentioned in his communication. He also agreed that he is amenable to
such rules and conditions which the respondent may impose. Under these
conditions, therefore, the Court finds that the respondent has not committed any
abuse of authority.

The complainant was warned to be more cautious in filing any administrative

charge against any public official especially, members of the judiciary,
considering that an administrative charge against a member of the judiciary may
expose the latter to public ridicule and scandal thereby minimizing if not
eradicating public trust and

After a careful evaluation of the recommendation, We find that the respondent did not act
arbitrarily in the premises. As found by the Investigating Judge, the respondent allowed the
complainant to open and view the docket books of respondent certain conditions and under his
control and supervision. it has not been shown that the rules and conditions imposed by the
respondent were unreasonable. The access to public records predicated on the right of the people
to acquire information on matters of public concern. Undoubtedly in a democracy, the public has
a legitimate interest in matters of social and political significance. In an earlier case, 1 this Court
held that mandamus would lie to compel the Secretary of Justice and the Register of Deeds to
examine the records of the latter office. Predicating the right to examine the records on statutory
provisions, and to a certain degree by general principles of democratic institutions, this Court
stated that while the Register of Deeds has discretion to exercise as to the manner in which
persons desiring to inspect, examine or copy the records in his office may exercise their rights,
such power does not carry with it authority to prohibit. Citing with approval People ex rel. Title
Guarantee & T. Co. vs. Railly, 2 this Court said:

The subject is necessarily committed, to a great degree, 'to his (register of deeds')
discretion as to how much of the conveniences of the office are required to be
preserved for the accomodation of these persons. It is not his duty to permit the
office to be thronged needlessly with persons examining its books of papers, but it
is his duty to regulate, govern, and control his office in such a manner as to permit
the statutory advantages to be enjoyed by other persons not employed by him as
largely and extensibly as that consistently can be done * * *. What the law
expects and requires from him is the exercise of an unbiased and impartial
judgment, by which all persons resorting to the office, under legal authority, and
conducting themselves in an orderly manner, shall be secured their lawful rights
and privileges, and that a corporation formed in the manner in which the relator
has been, shall be permitted to obtain all the information either by searches,
abstracts, or copies, that the law has entitled it to obtain.

Except, perhaps, when it is clear that the purpose of the examination is unlawful,
or sheer, Idle curiosity, we do not believe it is the duty under the law of
registration officers to concern themselves with the motives, reasons, and objects
 of the person seeking access to the records. It is not their prerogative to see that
the information which the records contain is not flaunted before public gaze, or
that scandal is not made of it. If it be wrong to publish the contents of the records,
it is the legislature and not the officials having custody thereof which is called
upon to devise a remedy. As to the moral or material injury which the publication
might inflict on other parties, that is the publisher's responsibility and lookout.
The publication is made subject to the consequences of the law.

The concurring opinion of Justice Briones predicated such right not on statutory grounds merely
but on the constitutional right of the press to have access to information as the essence of press
freedom. 3

The New Constitution now expressly recognizes that the people are entitled to information on
matters of public concern and thus are expressly granted access to official records, as well as
documents of official acts, or transactions, or decisions, subject to such limitations imposed by
law. 4 The incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic perception by
the public of the nation's problems, nor a meaningful democratic decision making if they are
denied access to information of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the
flow of such information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases. " 5 However, restrictions on
access to certain records may be imposed by law. Thus, access restrictions imposed to control
civil insurrection have been permitted upon a showing of immediate and impending danger that
renders ordinary means of control inadequate to maintain order. 6

WHEREFORE, the case against respondent is hereby dismissed.

G.R. No. 171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H.

HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG,
Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

x-------------------------------------x

G.R. No. 171409             May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171485             May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO,

AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S.
HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO
B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS
FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA,
AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.

x-------------------------------------x

G.R. No. 171483             May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C.

LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE
PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA,
AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.

G.R. No. 171489             May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE

AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III,
MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO
V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO
SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL
ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

x-------------------------------------x

G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-
GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA,
IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary.1
Superior strength – the use of force – cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government and in
favor of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws
and actions that restrict fundamental rights come to the courts "with a heavy presumption against
their constitutional validity."2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and
protected by the Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines

and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President.
. . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article
12 of the Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists – the historical enemies of the democratic
Philippine State – who are now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly constituted Government elected in May
2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State –
and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people’s confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine State
and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested

in me under the Constitution as President of the Republic of the Philippines, and Commander-in-
Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February
24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No.
1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were
issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of

the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People’s Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust
or assassinate the President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from
petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents’ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet
members and President Arroyo herself.6 Upon the advice of her security, President Arroyo
decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a
bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People’s Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his
arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino’s brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group’s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go for
the planned movement against Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-
Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was
no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the field." He claimed
that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that
the President’s ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of
three (3) soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from
the provinces in mass protests.10

By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She directed
both the AFP and the PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President’s mind were organized for purposes of
destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and
EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building.13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the standards – and the
standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a
‘takeover.’" National Telecommunications’ Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that
the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza.
Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City.
Later, he was turned over to the custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1)
it encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship" or
"prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives Satur
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP
1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of
expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis
of the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017
and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to
enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom
of expression and the right of the people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16
2,17 and 418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming
that PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O.
No. 5 are "unconstitutional for being violative of the freedom of expression, including its cognate
rights such as freedom of the press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate
the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483
(KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge
A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of judicial
review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity."23
Courts may exercise such power only when the following requisites are present: first, there must
be an actual case or controversy; second, petitioners have to raise a question of constitutionality;
third, the constitutional question must be raised at the earliest opportunity; and fourth, the
decision of the constitutional question must be necessary to the determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.25 The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo’s
issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26 so that a declaration thereon would be of no practical use or value.27
Generally, courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;31 second, the exceptional character of the situation and
the paramount public interest is involved;32 third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;33 and fourth, the
case is capable of repetition yet evading review.34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of expression, of assembly and
of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and
in the present petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents’ contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they
failed to take into account the Chief Justice’s very statement that an otherwise "moot" case may
still be decided "provided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance." The present case falls right within this
exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative
to have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that
a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court
ruled that for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest common to all members
of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that
the person who impugns the validity of a statute must have "a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as a result." The Vera
doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila
Race Horse Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and
Anti-Chinese League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted
the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws, regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:
 (1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of
the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner with
locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the
exercise of Congress’ taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be
relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election
law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s
organization does not give it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue
as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens’ cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members
of Congress have standing to sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful
search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine
Amusement and Gaming Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of
the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury
which the IBP as an institution or its members may suffer as a consequence of the issuance of PP
No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is
a media personality will not likewise aid her because there was no showing that the enforcement
of these issuances prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But
considering once more the transcendental importance of the issue involved, this Court may relax
the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5
is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,67 may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not accountable
to anyone. Like any other official, he remains accountable to the people68 but he may be removed
from office only in the mode provided by law and that is by impeachment.69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr.
v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining
"political questions," particularly those questions "in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government."75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the courts.
Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order
to determine their constitutional sufficiency. From the principle of separation of powers, it
shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost
evenly divided on the issue of whether the validity of the imposition of Martial Law is a political
or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that "in times of war or
national emergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is answerable only to
his conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the President’s "calling-
out" power as a discretionary power solely vested in his wisdom, it stressed that "this does not
prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in an appropriate action
the validity of the acts of the political departments. Under the new definition of judicial power,
the courts are authorized not only "to settle actual controversies involving rights which are
legally demandable and enforceable," but also "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the government.81 It
speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test
that "judicial inquiry can go no further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that
"it is incumbent upon the petitioner to show that the President’s decision is totally bereft of
factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court
cannot undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of
PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it."84 But Locke recognized that this moral restraint might not
suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the
ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the people’s first intention is that the State shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it.89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution
a regularized system of standby emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to meet the problem of combining
a capacious reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency

by constitutional democracies, have employed the doctrine of constitutional dictatorship.91
Frederick M. Watkins saw "no reason why absolutism should not be used as a means for the
defense of liberal institutions," provided it "serves to protect established institutions from
the danger of permanent injury in a period of temporary emergency and is followed by a
prompt return to the previous forms of political life."92 He recognized the two (2) key
elements of the problem of emergency governance, as well as all constitutional governance:
increasing administrative powers of the executive, while at the same time "imposing
limitation upon that power."93 Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: "The period of
dictatorship must be relatively short…Dictatorship should always be strictly legitimate in
character…Final authority to determine the need for dictatorship in any given case must
never rest with the dictator himself…"94 and the objective of such an emergency dictatorship
should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of
concentrating power – in a government where power has consciously been divided – to cope
with… situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means – i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of the
constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme
of "constitutional dictatorship" as solution to the vexing problems presented by emergency.98
Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional
dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be

initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of

the man or men who will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination…

4) …all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should

never be permanent in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a

constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was instituted…
 11) …the termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship…99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of

emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of constitutionalism, he insisted
that the historical and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but rather in the limiting of
it; between which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government, McIlwain
meant government limited to the orderly procedure of law as opposed to the processes of
force. The two fundamental correlative elements of constitutionalism for which all lovers of
liberty must yet fight are the legal limits to arbitrary power and a complete political
responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from
Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and,
eventually, to McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson’s "balanced power structure."102 Executive,
legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme
Court, respectively. Each is supreme within its own sphere. But none has the monopoly of
power in times of emergency. Each branch is given a role to serve as limitation or check
upon the other. This system does not weaken the President, it just limits his power, using the
language of McIlwain. In other words, in times of emergency, our Constitution reasonably
demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that
its enforcement encroached on both unprotected and protected rights under Section 4, Article III
of the Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless
violence. In United States v. Salerno,104 the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on
its face and when ‘such summary action’ is inappropriate. But the plain import of our cases is,
at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure
speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are 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."106 Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state
regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its improper applications
on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law’s "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,109 it was held that:

[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.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when the
assailed law may be valid. Here, petitioners did not even attempt to show whether this situation
exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application."110 It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even attempt to show that
PP 1017 is vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most
to the least benign, these are: the calling-out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these conditions present in
the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she
is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires.
For this reason, a President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition
of public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,114 an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat
to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used
to stifle or persecute critics of the government. It is placed in the keeping of the President for the
purpose of enabling him to secure the people from harm and to restore order so that they can
enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her
in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the President
is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to
it that all laws are enforced by the officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws."116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional
as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section
1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail
the clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it

was lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:

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

the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue
decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees
are laws which are of the same category and binding force as statutes because they were issued
by the President in the exercise of his legislative power during the period of Martial Law under
the 1973 Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and
a House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state
of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call
the military to enforce or implement certain laws, such as customs laws, laws governing family
and property relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article
XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public
interest.

What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports
to grant the President, without any authority or delegation from Congress, to take over or direct
the operation of any privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.122 In effect at the time of its approval was
President Marcos’ Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary
of National Defense to take over "the management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila
(and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort
to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section
18, Article VII grants the President such power, hence, no legitimate constitutional objection can
be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each other.123
Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate
to national emergencies, they must be read together to determine the limitation of the exercise of
emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over
or direct the operation of any privately owned public utility or business affected with
public interest," it refers to Congress, not the President. Now, whether or not the President may
exercise such power is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the
Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day fighting
in a theater of war. Such cases need not concern us here. Even though "theater of war" be an
expanding concept, we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from stopping production.
This is a job for the nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the
President’s power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President
is to execute. The first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited
view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception.127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads: a) economic,128 b) natural
disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.131 This is evident in the Records of the Constitutional
Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears
in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or
natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned public
utility or business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation
of powers, the fact remains that the Constitution has set up this form of government, with all its
defects and shortcomings, in preference to the commingling of powers in one man or group of
men. The Filipino people by adopting parliamentary government have given notice that they
share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal.
The point is, under this framework of government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific functions
of the legislative branch of enacting laws been surrendered to another department – unless we
regard as legislating the carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of constitutional government,
in times of extreme perils more than in normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called upon ‘to perform the duties and
discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing
PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless arrest; and
the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that
on February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the President’s calling-out power. Its general purpose is to
command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search
or violate the citizens’ constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not a
mere incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the blunders committed by policemen
in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders
are "acts and commands of the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.139 They are based on and are the product of, a relationship in which power is their
source, and obedience, their object.140 For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"

confronts not only our country, but the international community as well. The following
observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become
one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions – or threats of the use of force as the
most recent by the United States against Iraq – consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach
a consensus on the basic issue of definition. The organization has intensified its efforts recently,
but has been unable to bridge the gap between those who associate "terrorism" with any violent
act by non-state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force when resistance
against foreign occupation or against systematic oppression of ethnic and/or religious groups
within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs
and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India,
liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the
United States, terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way – because of opposing political interests that are at the roots of
those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in
the position of an occupying power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in each
and every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard
to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States.141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part
of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their
part. It must be remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by
reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure 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."142 The plain import of the language
of the Constitution is that searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third,
he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and
booked like a criminal suspect; fourth,he was treated brusquely by policemen who "held his head
and tried to push him" inside an unmarked car; fifth, he was charged with Violation of Batas
Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven (7)
hours; and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without
a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was
the leader of the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on
the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect
to public affairs. It is a necessary consequence of our republican institution and complements the
right of speech. As in the case of freedom of expression, this right is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive evil that Congress
has a right to prevent. In other words, like other rights embraced in the freedom of expression,
the right to assemble is not subject to previous restraint or censorship. It may not be conditioned
upon the prior issuance of a permit or authorization from the government authorities except, of
course, if the assembly is intended to be held in a public place, a permit for the use of such place,
and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot
be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free speech
and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting
was held but as to its purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for their conspiracy or
other violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly
and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has a
right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing
that an assembly presents a clear and present danger that the State may deny the citizens’ right to
exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed
acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits,
the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.150 The first time
they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When
a person’s right is restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were searched without
warrant;second, the police operatives seized several materials for publication; third, the search
was conducted at about 1:00 o’ clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the security guard of
the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune
offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’
to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." Director General Lomibao further stated that "if they do not follow
the standards –and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 – we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the duration of
the state of national emergency. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom
of the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning
of government officials to media, are plain censorship. It is that officious functionary of the
repressive government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he be so rash as
to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions
because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our citizens. Freedom to comment on
public affairs is essential to the vitality of a representative democracy. It is the duty of the courts
to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the
Tribune’s offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to
get the clippings. Is that not in admission of the admissibility of these clippings that were taken
from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 o’clock in the morning and without any
search warrant? Did they become suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
that the police could go and inspect and gather clippings from Daily Tribune or any other
newspaper.
SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this,
we do not condone this. If the people who have been injured by this would want to sue
them, they can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for,
as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens’ rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1
rallies" become "unruly and violent." Consequently, the transcendental issues raised by the
parties should not be "evaded;" they must now be resolved to prevent future constitutional
aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017’s extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public utility and private business affected with
public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting
as Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard – that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and prevent acts of
lawless violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed deleted from the said G.O.
While "terrorism" has been denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the AFP’s authority in carrying out
this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of the
Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal
limits to arbitrary power, and political responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision
in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures
to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have
not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

G.R. No. 189028               July 16, 2013

NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST

FOR LITERATURE BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL
ARTS (PAINTING) BENEDICTO CABRERA, NATIONAL ARTIST FOR VISUAL
ARTS (SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST FOR VISUAL
ARTS (PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL ARTIST FOR
PRODUCTION DESIGN SALVADOR BERNAL, UNIVERSITY PROFESSOR
EMERITUS GEMINO ABAD, DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF
LAW), DEAN DANILO SILVESTRE (UP COLLEGE OF ARCHITECTURE), DEAN
ROLAND TOLENTINO (UP COLLEGE OF MASS COMMUNICATION), PROF. JOSE
DALISAY, DR. ANTON JUAN, DR. ALEXANDER CORTEZ, DR. JOSE NEIL GARCIA,
DR. PEDRO JUN CRUZ REYES, PROF. JOSE CLAUDIO GUERRERO, PROF.
MICHAEL M. COROZA, PROF. GERARD LICO, PROF. VERNE DE LA PENA, PROF.
MARIAN ABUAN, PROF. THEODORE O. TE, DR. CRISTINA PANTOJA-HIDALGO,
PROF. JOSE WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF. NICOLO DEL
CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON REMOTO, PROF.
PRISCELINA PATAJOLEGASTO, PROF. BELEN CALINGACION, PROF. AMIEL Y.
LEONARDIA, PROF. VIM NADERA, PROF. MARILYN CANTA, PROF. CECILIA
DELA PAZ, ROF. CHARLSON ONG, PROF. CLOD MARLON YAMBAO, PROF.
KENNETH JAMANDRE, PROF. JETHRO JOAQUIN, ATTY. F.D. NICOLAS B.
PICHAY, ATTY. ROSE BEATRIX ANGELES, MR. FERNANDO JOSEF, MS. SUSAN S.
LARA, MR. ALFRED YUSON, MS. JING PANGANIBANMENDOZA, MR. ROMULO
BAQUIRAN, JR., MR. CARLJOE JAVIER, MS. REBECCA T. ANONUEVO, MR. JP
ANTHONY D. CUNADA, MS. LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL
O. SANTOS, MR. GIL OLEA MENDOZA, MR. EDGAR C. SAMAR, MS. CHRISTINE
BELLEN, MR. ANGELO R. LACUESTA, MS. ANNA MARIA KATIGBAKLACUESTA,
MR. LEX LEDESMA, MS. KELLY PERIQUET, MS. CARLA PACIS, MR. J. ALBERT
GAMBOA, MR. CESAR EVANGELISTA BUENDIA, MR. PAOLO ALCAZAREN, MR.
ALWYN C. JAVIER, MR. RAYMOND MAGNO GARLITOS, MS. GANG BADOY, MR.
LESLIE BOCOBO, MS. FRANCES BRETANA, MS. JUDITH TORRES, MS.
JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS. CAMILLE DE LA ROSA,
MR. JAMES LADIORAY, MR. RENATO CONSTANTINO, JR., and CONCERNED
ARTISTS OF THE PHILIPPINES (CAP), Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, THE CULTURAL CENTER OF THE PHILIPPINES,
THE NATIONAL COMMISSION ON CULTURE AND THE ARTS, MS. CECILE
GUIDOTE-ALVAREZ, MR. CARLO MAGNO JOSE CAPARAS,1 MR. JOSE MORENO,
MR. FRANCISCO MANOSA, AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING
UNDER THEIR INSTRUCTIONS, DIRECTION, CONTROL AND SUPERVISION IN
RELATION TO THE CONFERMENT OF THE ORDER OF THE NATIONAL ARTIST
AND THE RELEASE OF FUNDS IN RELATION TO THE CONFERMENT OF THE
HONORS AND PRIVILEGES OF THE ORDER OF NATIONAL ARTISTS ON
RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS, MORENO AND MANOSA,
Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Art has traditionally been viewed as the expression of everything that is true, good and beautiful.
As such, it is perceived to evoke and produce a spirit of harmony. Art is also considered as a
civilizing force, a catalyst of nation-building. The notion of art and artists as privileged
expressions of national culture helped shape the grand narratives of the nation and shared
symbols of the people. The artist does not simply express his/her own individual inspiration but
articulates the deeper aspirations of history and the soul of the people.2 The law recognizes this
role and views art as something that "reflects and shapes values, beliefs, aspirations, thereby
defining a people’s national identity."3 If unduly politicized, however, art and artists could stir
controversy and may even cause discord, as what happened in this case.

The Antecedents

History of the Order of National Artists

On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 10014 and,
upon recommendation of the Board of Trustees of the Cultural Center of the Philippines (CCP),
created the category of Award and Decoration of National Artist to be awarded to Filipinos who
have made distinct contributions to arts and letters. In the same issuance, Fernando Amorsolo
was declared as the first National Artist.

On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001 "by
creating a National Artists Awards Committee" that would "administer the conferment of the
category of National Artist" upon deserving Filipino artists. The Committee, composed of
members of the Board of Trustees of the CCP, was tasked to "draft the rules to guide its
deliberations in the choice of National Artists, to the end that those who have created a body of
work in the arts and letters capable of withstanding the test of time will be so recognized."

The authority of the National Artists Awards Committee to administer the conferment of the
National Artist Award was again reiterated in Presidential Decree No. 2086 issued on June 7,
1973.

On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National
Commission for Culture and the Arts, was signed into law. It established the National
Commission for Culture and the Arts (NCCA) and gave it an extensive mandate over the
development, promotion and preservation of the Filipino national culture and arts and the
Filipino cultural heritage. The NCCA was tasked with the following:

Sec. 8. The Commission. – A National Commission for Culture and Arts is hereby created to
formulate policies for the development of culture and arts; implement these policies in
coordination with affiliated cultural agencies; coordinate the implementation of programs of
these affiliated agencies; administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic freedom; develop and promote
the Filipino national culture and arts; and preserve Filipino cultural heritage. The Commission
shall be an independent agency. It shall render an annual report of its activities and achievements
to the President and to Congress.

Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend
recognition of artistic achievement through awards, grants and services to artists and cultural
groups which contribute significantly to the Filipino’s cultural legacy."7 In connection with this
mandate, the NCCA is vested with the power to "advise the President on matters pertaining to
culture and the arts, including the creation of a special decoration or award, for persons who have
significantly contributed to the development and promotion of Philippine culture and arts."8

As both the CCP Board of Trustees and the NCCA have been mandated by law to promote,
develop and protect the Philippine national culture and the arts, and authorized to give awards to
deserving Filipino artists, the two bodies decided to team up and jointly administer the National
Artists Award.9 Thereafter, they reviewed the guidelines for the nomination, selection and
administration of the National Artists Award. Pursuant to their respective powers to draft and
promulgate rules, regulations and measures to guide them in their deliberations in the choice of
National Artists, the CCP and NCCA adopted the following revised guidelines in September
200710:

4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the Arts (NCCA) shall plan,
organize and implement the Order of National Artists in coordination with the
Cultural Center of the Philippines (CCP).

4.2. It shall enlist the support and cooperation of private sector experts from the
various fields of art to ensure that the awards are implemented in a successful and
impartial manner.

4.3. The National Artist Award Secretariat shall commission art experts to form a
Special Research Group who shall verify information submitted on nominees and
provide essential data.

They shall be selected for their specialization and familiarity with the works and
accomplishments of nominated artists.

4.4. The Special Research Group shall be composed of ten (10) to twenty (20)
members who have expertise in one or more fields or disciplines.

4.5. The National Artist Award Council of Experts shall be created before or
during the nomination period. It is tasked to screen nominees and recommend to
the NCCA and CCP Boards the candidates for the Order of National Artists. It
shall be composed of highly regarded peers, scholars, (including cultural
philosophers and historians), academicians, researchers, art critics, and other
knowledgeable individuals. A wider age-range of experts who would have first-
hand knowledge of achievements of nominees shall be considered.

4.6. The selection of the members of the National Artist Award Council of
Experts shall be based on the following criteria:
 (a) should have achieved authority, credibility and track record in his
field(s) of expertise;

(b) should have extensive knowledge in his field(s) and his views on
Philippine art and culture must be national in perspective;

(c) should be a recognized authority in the study or research of Philippine

art and culture;

(d) must be willing to devote sufficient time and effort to the work of the
Council;

(e) must be willing to sign a non-disclosure statement in order to safeguard

the confidentiality of the deliberations;

(f) must not have been convicted with finality of any crime by a court of
justice or dismissed for cause by any organization, whether public or
private.

4.7. The National Artist Award Council of Experts shall be composed of a

maximum of seven (7) members each of the seven (7) areas/disciplines. The
living National Artists will automatically become members in addition to the
forty-nine (49) selected members. These members will constitute the first
deliberation panel and will be invited to evaluate the nominations and materials
submitted by the Special Research Group.

4.8. Any member of the Council of Experts who is nominated or related to a

nominee up to the fourth degree of consanguinity or affinity shall inhibit
himself/herself from the deliberation process. Likewise, any member may decline
to participate in the deliberation for any reason or may be removed for just cause
upon recommendation to the NCCA Board by at least two thirds (2/3) of the
members; in which case, the National Artist Award Secretariat shall again select
the replacements for those who decline or resigned until the first deliberation
panel is completed.

4.9. The list of nominated members of the National Artist Award Council of
Experts shall be reviewed by the National Artist Award Secretariat as needed, for
purposes of adding new members or replacements.

4.10. The members of the National Artist Award Council of Experts shall serve
for a fixed term of three (3) years.

5. CRITERIA FOR SELECTION

The Order of National Artists shall be given to:

 5.1 Living artists who are Filipino citizens at the time of nomination, as well as
those who died after the establishment of the award in 1972 but were Filipino
citizens at the time of their death.

5.2 Artists who through the content and form of their works have contributed in
building a Filipino sense of nationhood.

5.3. Artists who have pioneered in a mode of creative expression or style, thus,
earning distinction and making an impact on succeeding generations of artists.

5.4. Artists who have created a substantial and significant body of works and/or
consistently displayed excellence in the practice of their art form thus enriching
artistic expression or style.

5.5 Artists who enjoy broad acceptance through:

5.5.1. prestigious national and/or international recognition, such as the

Gawad CCP Para sa Sining, CCP Thirteen Artists Award and NCCA Alab
ng Haraya

5.5.2. critical acclaim and/or reviews of their works

5.5.3. respect and esteem from peers.

6. NOMINATION PROCEDURE

6.1. The National Artist Award Secretariat shall announce the opening of
nominations through media releases and letters to qualified organizations.

6.2. Candidates may be nominated under one or more of the following categories:

6.2.1. Dance – choreography, direction and/or performance.

6.2.2. Music – composition, direction, and/or performance.

6.2.3. Theater – direction, performance and/or production design.

6.2.4. Visual Arts – painting, sculpture, printmaking, photography, installation art,

mixed media works, illustration, comics/komiks, graphic arts, performance art
and/or imaging.

6.2.5. Literature – poetry, fiction (short story, novel and play); non-fiction (essay,
journalism, literary criticism and historical literature).

6.2.6. Film and Broadcast Arts – direction, writing, production design,

cinematography, editing, camera work, and/or performance.
6.2.7. Architecture, Design and Allied Arts – architecture design, interior design,
industrial arts design, landscape architecture and fashion design.

6.3. Nominations for the Order of National Artists may be submitted by

government and non-government cultural organizations and educational
institutions, as well as private foundations and councils.

6.4. Members of the Special Research Group, as well as agencies attached to the
NCCA and CCP shall not submit nominations.

6.5. NCCA and CCP Board members and consultants and NCCA and CCP
officers and staff are automatically disqualified from being nominated.

6.6. Nominations shall be accepted only when these are submitted in writing and
with proper supporting documentation, as follows:

6.6.1. A cover letter signed by the head or designated representative of the

nominating organization.

The cover letter shall be accompanied by a Board Resolution approving

the nominee concerned with the said resolution signed by the organization
President and duly certified by the Board Secretary.

6.6.2. A duly accomplished nomination form;

6.6.3. A detailed curriculum vitae of the nominee;

6.6.4. A list of the nominee’s significant works categorized according to

the criteria;

6.6.5. The latest photograph (color or black and white) of the nominee,
either 5" x 7" or 8" x 11";

6.6.6. Pertinent information materials on the nominee’s significant works

(on CDs, VCDs and DVDs);

6.6.7. Copies of published reviews;

6.6.8. Any other document that may be required.

6.7. Nominations received beyond the announced deadline for the submission of
nominations shall not be considered.

6.8. The National Artist Award Secretariat shall announce the opening of
nominations through media releases.
 6.9. All inquiries and nominations shall be submitted to

The NATIONAL ARTIST AWARD SECRETARIAT

Office of the Artistic Director Cultural Center of the Philippines Roxas Boulevard, 1300 Pasay
City or The NATIONAL ARTIST AWARD SECRETARIAT Office of the Deputy Executive
Director National Commission for Culture and the Arts 633 General Luna Street, Intramuros,
Manila

7. SCREENING AND SELECTION PROCESS

7.1. The National Artist Award Secretariat shall pre-screen the nominees based on
technical guideline items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-screening shall
not be based on the accomplishments and merits of the nominee.

7.2. The Special Research Group shall accomplish its task within six (6) months.
The main objective is to verify the validity of the data, and evaluate the quality,
true value and significance of works according to the criteria. It shall come up
with the updated and comprehensive profiles of nominees reflecting their most
outstanding achievements.

7.3. The National Artist Award Secretariat will meet to review the list of
nominees for oversights. Consequently, deserving nominees shall be added to the
list.

7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary.

The panelists shall be grouped according to their respective fields of expertise or
disciplines to shortlist the nominees in their disciplines or categories for
presentation to the second deliberation panel.

7.5. The second deliberation panel shall be composed of a different set of experts
from the first deliberation panel three (3) experts each of the seven (7)
areas/discipline and may include members from varying backgrounds such as
critics and academicians. The achievements of each shortlisted nominee shall be
presented by one designated member of Council of Experts. Then panel
deliberates and ranks the shortlisted nominees according to the order of
precedence following the set criteria of the Order of National Artists. In extreme
cases, the Second Deliberation may add new names to the lists.

7.6. The second deliberation panel may recommend not to give award in any
category if no nominee is found deserving. The number of awardees shall also
depend on the availability of funds. All decisions and recommendations shall be
in writing.

7.7. The recommendations from the Second Deliberation Panel of the National
Artist Award Council of Experts shall then be presented to the joint boards of
 NCCA and CCP for final selection. The presentors shall prepare their presentation
in writing together with an audio-visual presentation or powerpoint presentation.
Written interpellations/opinions will be accepted from selected critics. The review
shall be based on the ranking done by the Second Deliberation. The voting shall
be across disciplines. The National Artists will be given the option whether to
vote on all categories or on his/her particular discipline.

7.8. Proxy votes will not be allowed in the Selection Process. Designation of
permanent representatives of agencies should be made at the outset to make them
regular Board members of NCCA and thus, may be allowed to cast votes.

7.9. The list of awardees shall be submitted to the President of the Republic of the
Philippines for confirmation, proclamation and conferral.

8. PRESENTATION OF THE AWARDS

8.1. The Order of National Artists shall not be conferred more frequently than
every three (3) years.

8.2. The Order of National Artists shall be conferred by the President of the
Philippines on June 11 or any appropriate date in fitting ceremonies to be
organized by the National Artist Secretariat.

8.3. The medallion of the Order of National Artists and citation shall be given to
the honoree during the conferment ceremony. The cash award of ₱100,000.00 in
cheque shall be given immediately after the ceremony or at another time and
place as requested by the honoree.

8.4. A posthumous conferral consisting of the medallion and citation shall be

given to the family or legal heir/s of the honoree. The cash award of ₱75,000.00
in cheque shall be given to the honoree’s legal heir/s or a representative
designated by the family immediately after the ceremony or at another time and
place as requested by the family. (Emphases supplied.)

In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the
NCCA Executive Director as Chairperson, the CCP President as Vice-Chairperson, and the
NCCA Deputy Executive Director, the CCP Vice-President/Artistic Director, the NCCA
National Artist Award Officer and the CCP National Artist Award Officer as members. They
also centralized with the NCCA all financial resources and management for the administration of
the National Artists Award. They added another layer to the selection process to involve and
allow the participation of more members of the arts and culture sector of the Philippines in the
selection of who may be proclaimed a National Artist.

On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors
Code of the Philippines to Create an Order of Precedence of Honors Conferred and for Other
Purposes, was issued. The National Artists Award was renamed the Order of National Artists and
raised to the level of a Cultural Order, fourth in precedence among the orders and decorations
that comprise the Honors of the Philippines. Executive Order No. 236, s. 2003, recognizes the
vital role of the NCCA and the CCP in identifying Filipinos who have made distinct
contributions to arts and letters and states that the National Artist recognition is conferred "upon
the recommendation of the Cultural Center of the Philippines and the National Commission for
Culture and the Arts."12 Executive Order No. 236, s. 2003, further created a Committee on
Honors to "assist the President in evaluating nominations for recipients of Honors,"13 including
the Order of National Artists, and presidential awards. The Committee on Honors has been
allowed to "authorize relevant department or government agencies to maintain Honors and/or
Awards Committees to process nominations for Honors and/or Presidential Awards."14 In this
connection, Section 2.4(A) of the Implementing Rules and Regulations15 of Executive Order No.
236, s. 2003, states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the

following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall
process nominations for the consideration of the Committee on Honors. The Committee on
Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that
nominations received from the various awards committees meet two tests: that there has not been
an abuse of discretion in making the nomination, and that the nominee is in good standing.
Should a nomination meet these criteria, a recommendation to the President for conferment shall
be made.
The President of the Philippines takes the recommendations of the Committee on Honors in the
highest consideration when making the final decision on the conferment of awards. (Emphasis
supplied.)

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No. 236
Entitled "Establishing the Honors Code of the Philippines to Create an Order of Precedence of
Honors Conferred and for Other Purposes" was subsequently issued on June 8, 2005. It amended
the wording of Executive Order No. 236, s. 2003, on the Order of National Artists and clarified
that the NCCA and the CCP "shall advise the President on the conferment of the Order of
National Artists."

Controversy Surrounding the 2009

Order of National Artists

Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of
Commissioners and the CCP Board of Trustees was held to discuss, among others, the evaluation
of the 2009 Order of National Artists and the convening of the National Artist Award Secretariat.
The nomination period was set for September 2007 to December 31, 2007, which was later
extended to February 28, 2008. The pre-screening of nominations was held from January to
March 2008.16

On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered
during the deliberation and a preliminary shortlist19 of 32 names was compiled.

On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new set
of Council of Experts met and shortlisted 13 out of the 32 names in the preliminary shortlist.20
On May 6, 2009, the final deliberation was conducted by the 30-member Final Deliberation
Panel comprised of the CCP Board of Trustees and the NCCA Board of Commissioners and the
living National Artists.21 From the 13 names in the second shortlist, a final list of four names was
agreed upon.22 The final list, according to rank, follows:

Name Art Field/Category Number of Votes

Manuel Conde (+) Film and Broadcast Arts (Film) 26
Ramon Santos Music 19
Lazaro Francisco (+) Literature 15
Federico Aguilar-Alcuaz Visual Arts 15

On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary Vilma
Labrador, and the President and Artistic Director of the CCP, Mr. Nestor Jardin, was sent to the
President.23 The letter stated, thus:

May 6, 2009
Her Excellency GLORIA MACAPAGAL-ARROYO
President of the Philippines
Malacañan Palace, Manila

Subject: 2009 Order of National Artist Awardees

Dear President Arroyo:

We are respectfully submitting a recommendation of the NCCA Board of Trustees and CCP
Board of Trustees for the Proclamation of the following as 2009 Order of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) – Film and Broadcast Arts

2. Dr. RAMON SANTOS – Music

3. Mr. LAZARO FRANCISCO+ (Posthumous) – Literature

4. Mr. FEDERICO AGUILAR-ALCUAZ – Visual Arts

The above persons were identified by experts in the various fields of arts and culture, including
living National Artists. An intensive selection process was observed following established
practice. In the past, awards were presented by the President at a Ceremony held at the
Malacañan Palace followed by a program called "Parangal" at the Cultural Center of the
Philippines. We also propose to continue with past practice of celebrating the life and works of
the four (4) Order of National Artists through an exhibit that will open and a commemorative
publication that will be released on the day of the proclamation.

We respectfully suggest, subject to Her Excellency’s availability, that the Proclamation be on

June 11, 2009, if possible at the Malacañan Palace.

Thank you for your kind attention.

Very respectfully yours,

(Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts

(Sgd.)
NESTOR O. JARDIN
President and Artistic Director
Cultural Center of the Philippines24

According to respondents, the aforementioned letter was referred by the Office of the President
to the Committee on Honors. Meanwhile, the Office of the President allegedly received
nominations from various sectors, cultural groups and individuals strongly endorsing private
respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa and Jose
Moreno. The Committee on Honors purportedly processed these nominations and invited
resource persons to validate the qualifications and credentials of the nominees.25

The Committee on Honors thereafter submitted a memorandum to then President Gloria

Macapagal-Arroyo recommending the conferment of the Order of National Artists on the four
recommendees of the NCCA and the CCP Boards, as well as on private respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno. Acting on this recommendation, Proclamation No. 1823
declaring Manuel Conde a National Artist was issued on June 30, 2009. Subsequently, on July 6,
2009, Proclamation Nos. 1824 to 1829 were issued declaring Lazaro Francisco, Federico
AguilarAlcuaz and private respondents Guidote-Alvarez, Caparas, Mañosa and Moreno,
respectively, as National Artists. This was subsequently announced to the public by then
Executive Secretary Eduardo Ermita on July 29, 2009.26

Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and
the CCP Board of Trustees to select those who will be conferred the Order of National Artists
and to set the standard for entry into that select group, petitioners instituted this petition for
prohibition, certiorari and injunction (with prayer for restraining order) praying that the Order of
National Artists be conferred on Dr. Santos and that the conferment of the Order of National
Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno be enjoined and declared
to have been rendered in grave abuse of discretion.27

In a Resolution28 dated August 25, 2009, the Court issued a status quo order29 enjoining "public
respondents" "from conferring the rank and title of the Order of National Artists on private
respondents; from releasing the cash awards that accompany such conferment and recognition;
and from holding the acknowledgment ceremonies for recognition of the private respondents as
National Artists."

What is the nature and scope of the power of the President to confer the Order of the National
Artists and how should it be exercised? This is the essential issue presented in this case. It will
determine whether the proclamation of respondents as National Artists is valid. Preliminary
procedural issues on the standing of the petitioners and the propriety of the remedies taken,30
however, call for resolution as a prerequisite to the discussion of the main question.

Contention of the Parties

A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation of at
least three groups, the National Artists, cultural workers and academics, and the Concerned
Artists of the Philippines (CAP). The National Artists assert an "actual as well as legal interest in
maintaining the reputation of the Order of National Artists."31 In particular, they invoke their
right to due process not to have the honor they have been conferred with diminished by the
irregular and questionable conferment of the award on respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno. For petitioners, this would adversely affect their right to live a meaningful
life as it detracts not only from their right to enjoy their honor as a fruit of their lifelong labor but
also from the respect of their peers.32
The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned with
the preservation of the country’s rich cultural and artistic heritage. As taxpayers, they are
concerned about the use of public monies for illegal appointments or spurious acts of
discretion.33

All of the petitioners claim that former President Macapagal-Arroyo gravely abused her
discretion in disregarding th e results of the rigorous screening and selection process for the
Order of National Artists and in substituting her own choice for those of the Deliberation Panels.
According to petitioners, the President’s discretion to name National Artists is not absolute but
limited. In particular, her discretion on the matter cannot be exercised in the absence of or
against the recommendation of the NCCA and the CCP. In adding the names of respondents
Caparas, Guidote-Alvarez, Mañosa and Moreno while dropping Dr. Santos from the list of
conferees, the President’s own choices constituted the majority of the awardees in utter disregard
of the choices of the NCCA and the CCP and the arts and culture community which were arrived
at after a long and rigorous process of screening and deliberation. Moreover, the name of Dr.
Santos as National Artist for Music was deleted from the final list submitted by the NCCA and
the CCP Boards without clearly indicating the basis thereof. For petitioners, the President’s
discretion to name National Artists cannot be exercised to defeat the recommendations made by
the CCP and NCCA Boards after a long and rigorous screening process and with the benefit of
expertise and experience. The addition of four names to the final list submitted by the Boards of
the CCP and the NCCA and the deletion of one name from the said list constituted a substitution
of judgment by the President and a unilateral reconsideration without clear justification of the
decision of the First, Second and Final Deliberation Panels composed of experts.34

Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and unethical
because, as the then Executive Director of the NCCA and presidential adviser on culture and
arts, she was disqualified from even being nominated.35 Moreover, such action on the part of the
former President constituted grave abuse of discretion as it gave preferential treatment to
respondent Guidote-Alvarez by naming the latter a National Artist despite her not having been
nominated and, thus, not subjected to the screening process provided by the rules for selection to
the Order of National Artists. Her inclusion in the list by the President represented a clear and
manifest favor given by the President in that she was exempted from the process that all other
artists have to undergo. According to petitioners, it may be said that the President used a
different procedure to qualify respondent Guidote-Alvarez. This was clearly grave abuse of
discretion for being manifest and undue bias violative of the equal protection clause.36

Respondent Caparas refutes the contention of the petitioning National Artists and insists that
there could be no prejudice to the latter. They remain to be National Artists and continue to
receive the emoluments, benefits and other privileges pertaining to them by virtue of that honor.
On the other hand, all the other petitioners failed to show any material and personal injury or
harm caused to them by the conferment of the Order of National Artists on respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno. The rule on standing may not be relaxed in favor of the
petitioners as no question of constitutionality has been raised and no issue of transcendental
importance is involved.37
Respondent Caparas further argues that the remedies of prohibition and injunction are improper
as the act sought to be enjoined – the declaration of respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno as National Artists – had already been consummated. In particular,
respondent Caparas was already proclaimed National Artist through Proclamation No. 1827
issued on July 6, 2009.38

On the merits, respondent Caparas contends that no grave abuse of discretion attended his
proclamation as National Artist. The former President considered the respective
recommendations of the NCCA and the CCP Boards and of the Committee on Honors in
eventually declaring him (Caparas) as National Artist. The function of the NCCA and the CCP
Boards is simply to advise the President. The award of the Order of National Artists is the
exclusive prerogative of the President who is not bound in any way by the recommendation of
the NCCA and the CCP Boards. The implementing rules and regulations or guidelines of the
NCCA cannot restrict or limit the exclusive power of the President to select the recipients of the
Order of National Artists.39

For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that she
was waiving her right to file her comment on the petition and submitted herself to the Court’s
discretion and wisdom.

Respondent Mañosa manifested that his creations speak for themselves as his contribution to
Filipino cultural heritage and his worthiness to receive the award. Nonetheless, he expressed his
conviction that the Order of National Artists is not a right but a privilege that he would willingly
relinquish should he be found not worthy of it.41

Respondent Moreno did not file any pleading despite being given several opportunities to do so.
Hence, the Court dispensed with his pleadings.42

In a Resolution dated July 12, 2011, this Court gave due course to the petition and required the
parties to file their respective memoranda.43 Respondent Caparas filed his memorandum on
September 8, 2011,44 the CCP filed its memorandum on September 19, 2011,45 respondent
Mañosa on September 20, 2011,46 and the Office of the Solicitor General filed a manifestation
stating that it is adopting its comment as its memorandum on September 21, 2011.47 Respondent
Moreno failed to file a Memorandum, hence, the Court resolved to dispense with the same.48
Petitioners filed their Memorandum on May 14, 2012.49

On the other hand, the original position of the Office of the Solicitor General (OSG) was similar
to that of respondent Caparas.50 In a subsequent manifestation,51 however, the OSG stated that
the current Board of Commissioners of the NCCA agree with the petitioners that the President
cannot honor as a National Artist one who was not recommended by the joint Boards of the
NCCA and the CCP. The implementing rules and regulations of Executive Order No. 236, s.
2003, recognized the binding character of the recommendation of the NCCA and the CCP
Boards and limited the authority of the Committee on Honors to the determination that (1) there
has been no grave abuse of discretion on the part of the NCCA and the CCP Boards in making
the nomination, and (2) the nominee is in good standing. Where a nomination meets the said two
criteria, a recommendation to the President to confer the award shall be made.52
The OSG further argued that, while the President exercises control over the NCCA and the CCP,
the President has the duty to faithfully execute the laws, including the NCCA-CCP guidelines for
selection of National Artists and the implementing rules of Executive Order No. 236, s. 2003.
Moreover, the laws recognize the expertise of the NCCA and the CCP in the arts and tasked
them to screen and select the artists to be conferred the Order of National Artists. Their mandate
is clear and exclusive as no other agency possesses such expertise.53

The OSG also assailed the former President’s choice of respondent Guidote-Alvarez for being
contrary to Republic Act No. 7356.54 Section 11 of the said law provides:

Sec. 11. Membership Restrictions. – During his/her term as member of the Commission, a
Commissioner shall not be eligible for any grant, or such other financial aid from the
Commission as an individual: Provided, however, That he/she may compete for grants and
awards on the same level as other artists one (1) year after his/her term shall have expired.

The omission of the word "award" in the first portion of the above provision appears to be
unintentional as shown by the proviso which states that a member may compete for grants and
awards only one year after his or her term shall have expired. As such, respondent Guidote-
Alvarez is restricted and disqualified from being conferred the 2009 Order of N ational Artists.55

The Court’s Ruling

Standing of the Petitioners

Standing is the determination of whether a specific person is the proper party to bring a matter to
the court for adjudication.56 The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.57

The parties who assail the constitutionality or legality of a statute or an official act must have a
direct and personal interest. They must show not only that the law or any governmental act is
invalid, but also that they sustained or are in immediate danger of sustaining some direct injury
as a result of its enforcement, and not merely that they suffer thereby in some indefinite way.
They must show that they have been or are about to be denied some right or privilege to which
they are lawfully entitled or that they are about to be subjected to some burdens or penalties by
reason of the statute or act complained of.58

In this case, we find that the petitioning National Artists will be denied some right or privilege to
which they are entitled as members of the Order of National Artists as a result of the conferment
of the award on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. In particular, they
will be denied the privilege of exclusive membership in the Order of National Artists.

In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National
Artists is "an exclusive association of honored individuals." To ensure the exclusivity of the
membership in the Order, a rigid nomination and screening process has been established with
different sets of renowned artists and respected art critics invited to sit as the Council of Experts
for the First and Second Deliberation Panels. Moreover, all living National Artists are given a
voice on who should be included in their exclusive club as they automatically become members
of the Final Deliberation Panel that will vote on who should be included in the final list to be
submitted to the President for conferment of the Order of National Artists. To allow the
untrammeled discretion and authority of the President to confer the Order of National Artists
without regard to the stringent screening and rigorous selection process established by the NCCA
and the CCP will diminish, if not negate, the exclusive nature of the said Order. It will unduly
subject the selection and conferment of the Order of National Artists to politics rather than to
principles and procedures. It will subvert the transparent and rigorous process and allow entry to
the exclusive Order of National Artists through a secret backdoor of lobbying, back channeling
and political accommodation.

Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and substantial
interest. Like respondents Caparas, Mañosa and Moreno, he was among the 87 nominees for the
2009 Order of National Artists. Like respondent Moreno, he made it to the preliminary shortlist.
As he did not make it to the second shortlist, he was not considered by the Final Deliberation
Panel, more so by the former President.

It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated for
being the Executive Director of the NCCA at that time while respondents Mañosa and Caparas
did not make it to the preliminary shortlist and respondent Moreno was not included in the
second shortlist. Yet, the four of them were treated differently and considered favorably when
they were exempted from the rigorous screening process of the NCCA and the CCP and
conferred the Order of National Artists. The Committee on Honors and the former President
effectively treated respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as a preferred
class. The special treatment accorded to respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno fails to pass rational scrutiny.60 No real and substantial distinction between respondents
and petitioner Abad has been shown that would justify deviating from the laws, guidelines and
established procedures, and placing respondents in an exceptional position. The undue
classification was not germane to the purpose of the law. Instead, it contradicted the law and
well-established guidelines, rules and regulations meant to carry the law into effect. While
petitioner Abad cannot claim entitlement to the Order of National Artists,61 he is entitled to be
given an equal opportunity to vie for that honor. In view of the foregoing, there was a violation
of petitioner Abad’s right to equal protection, an interest that is substantial enough to confer him
standing in this case.

As regards the other concerned artists and academics as well as the CAP, their claim of deep
concern for the preservation of the country’s rich cultural and artistic heritage, while laudable,
falls short of the injury in fact requirement of standing. Their assertion constitutes a generalized
grievance shared in a substantially equal measure by all or a large class of citizens.62 Nor can
they take refuge in their status as taxpayers as the case does not involve any illegal appropriation
or taxation. A taxpayer’s suit is proper only when there is an exercise of the spending or taxing
power of the Congress.63
Nonetheless, as a reading of the petition shows that it has advanced an issue which deserves the
attention of this Court in view of its seriousness, novelty and weight as precedent, it behooves
the Court to relax the rules on standing and to resolve the issue presented before it.64 Moreover,
this issue is of paramount interest,65 which further justifies a liberal stance on standing.

Propriety of the Remedies

The present action is a petition for prohibition, certiorari, injunction, restraining order and all
other legal, just and equitable reliefs.

It has been held that the remedies of prohibition and injunction are preventive and, as such,
cannot be availed of to restrain an act that is already fait accompli.66 Where the act sought to be
prohibited or enjoined has already been accomplished or consummated, prohibition or injunction
becomes moot.67

Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits
for the future guidance of both bench and bar. Courts will decide a question otherwise moot and
academic if it is "capable of repetition, yet evading review."68

It is an opportune time for the Court to assert its role as republican schoolmaster,69 a teacher in a
vital national seminar.70 There are times when the controversy is of such character that, to
prevent its recurrence and to assure respect for constitutional limitations, this Court must pass on
the merits of a case.71 This is one such case. More than being a teaching moment, this is not the
first time that the Order of National Artists was conferred in the manner that is being assailed in
this case.72 If not addressed here and now, there is great probability that the central question
involved in this case will haunt us again in the future. Every President may invoke absolute
presidential prerogative and thrust upon us National Artists after his or her own heart, in total
disregard of the advise of the CCP and the NCCA and the voice of the community of artists,
resulting to repeated episodes of indignation and uproar from the artists and the public.

Furthermore, if not corrected, such an act would give rise to mischief and dangerous precedent
whereby those in the corridors of power could avoid judicial intervention and review by merely
speedily and stealthily completing the commission of an illegality.73

In any event, the present petition is also for certiorari and there is no procedural bar for the Court
to pass upon the question of whether the proclamations of respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno as National Artists were attended by grave abuse of presidential
discretion.

Limits of the President’s Discretion

The respective powers of the CCP Board of Trustees and of the NCCA Board of Commissioners
with respect to the conferment of the Order of National Artists are clear. They jointly administer
the said award and, upon their recommendation or advice, the President confers the Order of
National Artists.
To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or counsel."74
To "advise" is "to give an opinion or counsel, or recommend a plan or course of action; also to
give notice. To encourage, inform or acquaint."75 "Advise" imports that it is discretionary or
optional with the person addressed whether he will act on such advice or not.76 This has been
clearly explained in Cojuangco, Jr. v. Atty. Palma77:

The "power to recommend" includes the power to give "advice, exhortation or indorsement,
which is essentially persuasive in character, not binding upon the party to whom it is made."
(Emphasis supplied.)

Thus, in the matter of the conferment of the Order of National Artists, the President may or may
not adopt the recommendation or advice of the NCCA and the CCP Boards. In other words, the
advice of the NCCA and the CCP is subject to the President’s discretion.

Nevertheless, the President’s discretion on the matter is not totally unfettered, nor the role of the
NCCA and the CCP Boards meaningless.

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to
keep it from straying. In its classic formulation, "discretion is not unconfined and vagrant" but
"canalized within banks that keep it from overflowing."78

The President’s power must be exercised in accordance with existing laws. Section 17, Article
VII of the Constitution prescribes faithful execution of the laws by the President:

Sec. 17. The President shall have control of all the executive departments, bureaus and offices.
He shall ensure that the laws be faithfully executed. (Emphasis supplied.)

The President’s discretion in the conferment of the Order of National Artists should be exercised
in accordance with the duty to faithfully execute the relevant laws. The faithful execution clause
is best construed as an obligation imposed on the President, not a separate grant of power.79 It
simply underscores the rule of law and, corollarily, the cardinal principle that the President is not
above the laws but is obliged to obey and execute them.80 This is precisely why the law provides
that "administrative or executive acts, orders and regulations shall be valid only when they are
not contrary to the laws or the Constitution."81

In this connection, the powers granted to the NCCA and the CCP Boards in connection with the
conferment of the Order of National Artists by executive issuances were institutionalized by two
laws, namely, Presidential Decree No. 208 dated June 7, 1973 and Republic Act No. 7356. In
particular, Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as the
National Artists Awards Committee and tasked it to "administer the conferment of the category
of National Artist" upon deserving Filipino artists with the mandate to "draft the rules to guide its
deliberations in the choice of National Artists":

Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National
Artist, is hereby amended by creating a National Artists Awards Committee, hereinafter to
administer the conferment of the category of National Artist upon those deserving thereof. The
Committee, which shall be composed of members of the Board of Trustees of the Cultural Center
of the Philippines, shall organize itself immediately and shall draft the rules to guide its
deliberations in the choice of National Artists, to the end that those who have created a body of
work in the arts and in letters capable of withstanding the test of time will be so recognized.
(Emphases supplied.)

The authority of the CCP Board of Trustees as National Artists Awards Committee was
reiterated in Presidential Decree No. 208 dated June 7, 1973.

The function of the CCP Board of Trustees as National Artists Awards Committee has been
recognized under Republic Act No. 7356:

Sec. 18. The National Cultural Agencies. – The [NCCA] shall coordinate with the national
cultural agencies including but not limited to the Cultural Center of the Philippines, the Institute
of Philippine Languages, the National Historical Institute, the National Library, the National
Museum, the Records Management and Archives Office. However, they shall continue operating
under their respective charters or as provided by law where provisions therein are not
inconsistent with the provisions of this Act. They shall serve as the national repository and/or
showcase, as the case may be, of the best of Philippine culture and arts. For this purpose, these
agencies shall submit periodic reports, including recommendations to the [NCCA]. (Emphasis
supplied.)

On the other hand, the NCCA has been given the following mandate in connection with the
conferment of cultural or arts awards:

Sec. 12. Mandate. – The Commission is hereby mandated to formulate and implement policies
and plans in accordance with the principles stated in Title 1 of this Act.

(a) To encourage the continuing and balanced development of a pluralistic culture by the
people themselves, it shall:

xxxx

(4) extend recognition of artistic achievement through awards, grants and services to
artists and cultural groups which contribute significantly to the Filipino’s cultural legacy;

xxxx

Sec. 13. Powers and Functions. – To carry out its mandate, the Commission shall exercise
the following powers and functions:

xxxx

(j) advise the President on matters pertaining to culture and the arts, including the
creation of a special decoration or award, for persons who have significantly contributed
to the development and promotion of Philippine culture and arts;
 (k) promulgate rules, regulations and undertake any and all measures as may be necessary
to implement this Act. (Emphases supplied.)

By virtue of their respective statutory mandates in connection with the conferment of the
National Artist Award, the NCCA and the CCP decided to work together and jointly administer
the National Artist Award. They reviewed the guidelines for the nomination, selection and
administration of the National Artist Award, created a National Artist Award Secretariat,
centralized all financial resources and management for the administration of the National Artist
Award, and added another layer to the selection process so that more members of the arts and
culture sector of the Philippines may be involved and participate in the selection of National
Artists.

We have held that an administrative regulation adopted pursuant to law has the force and effect
of law.82 Thus, the rules, guidelines and policies regarding the Order of National Artists jointly
issued by the CCP Board of Trustees and the NCCA pursuant to their respective statutory
mandates have the force and effect of law. Until set aside, they are binding upon executive and
administrative agencies,83 including the President himself/herself as chief executor of laws. In
this connection, Section 2.5(A) of the Implementing Rules and Regulations84 of Executive Order
No. 236, s. 2003 provides:

2.5: General Guidelines for Awards Committees

A. National Orders of Cultural and Scientific Merit

The existing modalities of the NCCA for selecting recipients for the Order of National Artists,
and the Gawad sa Manlilikha ng Bayan, and of the NAST for selecting recipients of the Order of
National Scientists, shall remain in force. (Emphases supplied.)

Section 2.4(A) of the same implementing rules further states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the

following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

 Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall
process nominations for the consideration of the Committee on Honors. The Committee on
Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that
nominations received from the various awards committees meet two tests: that there has not been
an abuse of discretion in making the nomination, and that the nominee is in good standing.
Should a nomination meet these criteria, a recommendation to the President for conferment shall
be made.

The President of the Philippines takes the recommendations of the Committee on Honors in the
highest consideration when making the final decision on the conferment of awards. (Emphasis
supplied.)

Pursuant to the above provision of the implementing rules of Executive Order No. 236, s. 2003,
the authority of the Committee on Honors is limited to determining whether the nominations
submitted by a particular awards committee, in this case, the joint NCCA and CCP Boards, have
been tainted by abuse of discretion, and whether the nominees are in good standing. Should the
nominations meet these two criteria, the Committee on Honors shall make a recommendation to
the President for conferment of the Order of National Artists.

In view of the various stages of deliberation in the selection process and as a consequence of
his/her duty to faithfully enforce the relevant laws, the discretion of the President in the matter of
the Order of National Artists is confined to the names submitted to him/her by the NCCA and the
CCP Boards. This means that the President could not have considered conferment of the Order of
National Artists on any person not considered and recommended by the NCCA and the CCP
Boards. That is the proper import of the provision of Executive Order No. 435, s. 2005, that the
NCCA and the CCP "shall advise the President on the conferment of the Order of National
Artists." Applying this to the instant case, the former President could not have properly
considered respondents Guidote-Alvarez, Caparas, Mañosa and Moreno, as their names were not
recommended by the NCCA and the CCP Boards. Otherwise, not only will the stringent
selection and meticulous screening process be rendered futile, the respective mandates of the
NCCA and the CCP Board of Trustees under relevant laws to administer the conferment of
Order of National Artists, draft the rules and regulations to guide its deliberations, formulate and
implement policies and plans, and undertake any and all necessary measures in that regard will
also become meaningless.

Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of the
NCCA at that time, the Guidelines expressly provides:
6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are
automatically disqualified from being nominated.85

Respondent Guidote-Alvarez could not have even been nominated, hence, she was not qualified
to be considered and conferred the Order of National Artists at that time. The President’s
discretion on the matter does not extend to removing a legal impediment or overriding a legal
restriction.

From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to the
conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz was not
binding on the former President but only discretionary or optional for her whether or not to act
on such advice or recommendation. Also, by virtue of the power of control, the President had the
authority to alter or modify or nullify or set aside such recommendation or advice. It was well
within the President’s power and discretion to proclaim all, or some or even none of the
recommendees of the CCP and the NCCA Boards, without having to justify his or her action.
Thus, the exclusion of Santos did not constitute grave abuse of discretion on the part of the
former President.

The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas,

Mañosa and Moreno was an entirely different matter.

There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or
personal bias.86

There was a violation of the equal protection clause of the Constitution87 when the former
President gave preferential treatment to respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno.1âwphi1 The former President’s constitutional duty to faithfully execute the laws and
observe the rules, guidelines and policies of the NCCA and the CCP as to the selection of the
nominees for conferment of the Order of National Artists proscribed her from having a free and
uninhibited hand in the conferment of the said award. The manifest disregard of the rules,
guidelines and processes of the NCCA and the CCP was an arbitrary act that unduly favored
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The conferment of the Order of
National Artists on said respondents was therefore made with grave abuse of discretion and
should be set aside.

While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno as National Artists, such action should not be taken as a pronouncement on
whether they are worthy to be conferred that honor. Only the President, upon the advise of the
NCCA and the CCP Boards, may determine that. The Court simply declares that, as the former
President committed grave abuse of discretion in issuing Proclamation Nos. 1826 to 1829 dated
July 6, 2009, the said proclamations are invalid. However, nothing in this Decision should be
read as a disqualification on the part of respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno to be considered for the honor of National Artist in the future, subject to compliance
with the laws, rules and regulations governing said award.
WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829
dated July 6, 2009 proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas,
Francisco Mañosa, and Jose Moreno, respectively, as National Artists are declared INVALID
and

SET ASIDE for having been issued with grave abuse of discretion.

SO ORDERED

G.R. No. 202666               September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES,
Respondents.

DECISION

VELASCO, JR., J.:

The individual's desire for privacy is never absolute, since participation in society is an equally
powerful desire. Thus each individual is continually engaged in a personal adjustment process in
which he balances the desire for privacy with the desire for disclosure and communication of
himself to others, in light of the environmental conditions and social norms set by the society in
which he lives.

- Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation
to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas
Data." Petitioners herein assail the July 27, 2012 Decision2 of the Regional Trial Court, Branch
14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the
period material, graduating high school students at St. Theresa's College (STC), Cebu City.
Sometime in January 2012, while changing into their swimsuits for a beach party they were
about to attend, Julia and Julienne, along with several others, took digital pictures of themselves
clad only in their undergarments. These pictures were then uploaded by Angela Lindsay Tan
(Angela) on her Facebook3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high
school department, learned from her students that some seniors at STC posted pictures online,
depicting themselves from the waist up, dressed only in brassieres. Escudero then asked her
students if they knew who the girls in the photos are. In turn, they readily identified Julia,
Julienne, and Chloe Lourdes Taboada (Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal Facebook
accounts and showed her photos of the identified students, which include: (a) Julia and Julienne
drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the
streets of Cebu wearing articles of clothing that show virtually the entirety of their black
brassieres. What is more, Escudero’s students claimed that there were times when access to or
the availability of the identified students’ photos was not confined to the girls’ Facebook
friends,4 but were, in fact, viewable by any Facebook user.5

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page,
showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate
action. Thereafter, following an investigation, STC found the identified students to have
deported themselves in a manner proscribed by the school’s Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholicbeverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually

suggestive messages, language or symbols; and 6. Posing and uploading pictures on the
Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question,
reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high
school principal and ICM6 Directress. They claimed that during the meeting, they were
castigated and verbally abused by the STC officials present in the conference, including
Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr.
Purisima informed their parents the following day that, as part of their penalty, they are barred
from joining the commencement exercises scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan),
filed a Petition for Injunction and Damages before the RTC of Cebu City against STC, et al.,
docketed as Civil Case No. CEB-38594.7 In it, Tan prayed that defendants therein be enjoined
from implementing the sanction that precluded Angela from joining the commencement
exercises.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray
as an intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their
memorandum, containing printed copies of the photographs in issue as annexes. That same day,
the RTC issued a temporary restraining order (TRO) allowing the students to attend the
graduation ceremony, to which STC filed a motion for reconsideration.

Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from
participating in the graduation rites, arguing that, on the date of the commencement exercises, its
adverted motion for reconsideration on the issuance ofthe TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data,
docketed as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children’s Facebook accounts was set at "Friends Only."
They, thus, have a reasonable expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of
laws that safeguard the right to privacy. Corollarily, respondents knew or ought to have
known that the girls, whose privacy has been invaded, are the victims in this case, and not
the offenders. Worse, after viewing the photos, the minors were called "immoral" and
were punished outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced
without their consent. Escudero, however, violated their rights by saving digital copies of
the photos and by subsequently showing them to STC’s officials. Thus, the Facebook
accounts of petitioners’ children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data,
and digital images happened at STC’s Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with Civil
Case No. CEB-38594. To petitioners, the interplay of the foregoing constitutes an
invasion of their children’s privacy and, thus, prayed that: (a) a writ of habeas databe
issued; (b) respondents be ordered to surrender and deposit with the court all soft and
printed copies of the subjectdata before or at the preliminary hearing; and (c) after trial,
judgment be rendered declaring all information, data, and digital images accessed, saved
or stored, reproduced, spread and used, to have been illegally obtained inviolation of the
children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5,
2012, issued the writ of habeas data. Through the same Order, herein respondents were directed
to file their verified written return, together with the supporting affidavits, within five (5)
working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified written return,
laying down the following grounds for the denial of the petition, viz: (a) petitioners are not the
proper parties to file the petition; (b) petitioners are engaging in forum shopping; (c) the instant
case is not one where a writ of habeas data may issue;and (d) there can be no violation of their
right to privacy as there is no reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The
dispositive portion of the Decision pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of
the minors’ right to privacy, one of the preconditions for the issuance of the writ of habeas data.
Moreover, the court a quoheld that the photos, having been uploaded on Facebook without
restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted,
STC gathered the photographs through legal means and for a legal purpose, that is, the
implementation of the school’s policies and rules on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of
the Rule on Habeas Data.10

The Issues

The main issue to be threshed out inthis case is whether or not a writ of habeas data should be
issued given the factual milieu. Crucial in resolving the controversy, however, is the pivotal
point of whether or not there was indeed an actual or threatened violation of the right to privacy
in the life, liberty, or security of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved
party.11 It is an independent and summary remedy designed to protect the image, privacy, honor,
information, and freedom of informati on of an individual, and to provide a forum to enforce
one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends.12

In developing the writ of habeas data, the Court aimed to protect an individual’s right to
informational privacy, among others. A comparative law scholar has, in fact, defined habeas
dataas "a procedure designed to safeguard individual freedom from abuse in the information
age."13 The writ, however, will not issue on the basis merely of an alleged unauthorized access
to information about a person.Availment of the writ requires the existence of a nexus between
the right to privacy on the one hand, and the right to life, liberty or security on the other.14 Thus,
the existence of a person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of
the victim are indispensable before the privilege of the writ may be extended.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the perspective of the case at bar,this requisite begs
this question: given the nature of an online social network (OSN)––(1) that it facilitates and
promotes real-time interaction among millions, if not billions, of users, sans the spatial
barriers,16 bridging the gap created by physical space; and (2) that any information uploaded in
OSNs leavesan indelible trace in the provider’s databases, which are outside the control of the
end-users––is there a right to informational privacy in OSN activities of its users? Before
addressing this point, We must first resolve the procedural issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced
disappearances

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the
purpose of complementing the Writ of Amparoin cases of extralegal killings and enforced
disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data.
However, in cases of extralegal killings and enforced disappearances, the petition may be filed
by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse,
children and parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the
fourth civil degreeof consanguinity or affinity, in default of those mentioned in the
preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of
extralegal killings or enforced disappearances, the above underscored portion of Section 2,
reflecting a variance of habeas data situations, would not have been made.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the
information age."17 As such, it is erroneous to limit its applicability to extralegal killings and
enforced disappearances only. In fact, the annotations to the Rule preparedby the Committee on
the Revision of the Rules of Court, after explaining that the Writ of Habeas Data complements
the Writ of Amparo, pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s
right to privacy, more specifically the right to informational privacy. The remedies against the
violation of such right can include the updating, rectification, suppression or destruction of the
database or information or files in possession or in control of respondents.18 (emphasis Ours)
Clearly then, the privilege of the Writ of Habeas Datamay also be availed of in cases outside of
extralegal killings and enforced disappearances.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information

Respondents’ contention that the habeas data writ may not issue against STC, it not being an
entity engaged in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party, while valid to a point, is, nonetheless,
erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available
only against abuses of a person or entity engaged in the businessof gathering, storing, and
collecting of data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose
right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party. (emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that
habeas data is a protection against unlawful acts or omissions of public officials and of private
individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party
and his or her correspondences, or about his or her family. Such individual or entity need not be
in the business of collecting or storing data.

To "engage" in something is different from undertaking a business endeavour. To "engage"

means "to do or take part in something."19 It does not necessarily mean that the activity must be
done in pursuit of a business. What matters is that the person or entity must be gathering,
collecting or storing said data or information about the aggrieved party or his or her family.
Whether such undertaking carries the element of regularity, as when one pursues a business, and
is in the nature of a personal endeavour, for any other reason or even for no reason at all, is
immaterial and such will not prevent the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to
a very small group, i.e., private persons and entities whose business is data gathering and storage,
and in the process decreasing the effectiveness of the writ asan instrument designed to protect a
right which is easily violated in view of rapid advancements in the information and
communications technology––a right which a great majority of the users of technology
themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the
controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, through time, greatly evolved, with technological advancements
having an influential part therein. This evolution was briefly recounted in former Chief Justice
Reynato S. Puno’s speech, The Common Right to Privacy,20 where he explained the three
strands of the right to privacy, viz: (1) locational or situational privacy;21 (2) informational
privacy; and (3) decisional privacy.22 Of the three, what is relevant to the case at bar is the right
to informational privacy––usually defined as the right of individuals to control information about
themselves.23

With the availability of numerous avenues for information gathering and data sharing nowadays,
not to mention each system’s inherent vulnerability to attacks and intrusions, there is more
reason that every individual’s right to control said flow of information should be protected and
that each individual should have at least a reasonable expectation of privacy in cyberspace.
Several commentators regarding privacy and social networking sites, however, all agree that
given the millions of OSN users, "[i]n this [Social Networking] environment, privacy is no
longer grounded in reasonable expectations, but rather in some theoretical protocol better known
as wishful thinking."24

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that
would allow a summary hearing of the unlawful use of data or information and to remedy
possible violations of the right to privacy.25 In the same vein, the South African High Court, in
its Decision in the landmark case, H v. W,26 promulgated on January30, 2013, recognized that
"[t]he law has to take into account the changing realities not only technologically but also
socially or else it will lose credibility in the eyes of the people. x x x It is imperative that the
courts respond appropriately to changing times, acting cautiously and with wisdom." Consistent
with this, the Court, by developing what may be viewed as the Philippine model of the writ of
habeas data, in effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in cyberspace activities,
including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in
mind that informational privacy involves personal information. At the same time, the very
purpose of OSNs is socializing––sharing a myriad of information,27 some of which would have
otherwise remained personal.

b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay
connected to other members of the same or different social media platform through the sharing
of statuses, photos, videos, among others, depending on the services provided by the site. It is
akin to having a room filled with millions of personal bulletin boards or "walls," the contents of
which are under the control of each and every user. In his or her bulletin board, a user/owner can
post anything––from text, to pictures, to music and videos––access to which would depend on
whether he or she allows one, some or all of the other users to see his or her posts. Since gaining
popularity, the OSN phenomenon has paved the way to the creation of various social networking
sites, includingthe one involved in the case at bar, www.facebook.com (Facebook), which,
according to its developers, people use "to stay connected with friends and family, to discover
what’s going on in the world, and to share and express what matters to them."28

Facebook connections are established through the process of "friending" another user. By
sending a "friend request," the user invites another to connect their accounts so that they can
view any and all "Public" and "Friends Only" posts of the other.Once the request is accepted, the
link is established and both users are permitted to view the other user’s "Public" or "Friends
Only" posts, among others. "Friending," therefore, allows the user to form or maintain one-to-
one relationships with other users, whereby the user gives his or her "Facebook friend" access to
his or her profile and shares certain information to the latter.29

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed
with different privacy tools designed to regulate the accessibility of a user’s profile31 as well as
information uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this
ability of the users to "customize their privacy settings," but did so with this caveat: "Facebook
states in its policies that, although it makes every effort to protect a user’s information, these
privacy settings are not foolproof."33

For instance, a Facebook user canregulate the visibility and accessibility of digital
images(photos), posted on his or her personal bulletin or "wall," except for the user’sprofile
picture and ID, by selecting his or her desired privacy setting:

(a) Public - the default setting; every Facebook user can view the photo;

(b) Friends of Friends - only the user’s Facebook friends and their friends can view the
photo;

(b) Friends - only the user’s Facebook friends can view the photo;
 (c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and

(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to
broaden or limit the visibility of his or her specific profile content, statuses, and photos, among
others, from another user’s point of view. In other words, Facebook extends its users an avenue
to make the availability of their Facebook activities reflect their choice as to "when and to what
extent to disclose facts about [themselves] – and to put others in the position of receiving such
confidences."34 Ideally, the selected setting will be based on one’s desire to interact with others,
coupled with the opposing need to withhold certain information as well as to regulate the
spreading of his or her personal information. Needless to say, as the privacy setting becomes
more limiting, fewer Facebook users can view that user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable expectation of
privacy in Facebook would, in context, be correct. However, such is not the case. It is through
the availability of said privacy tools that many OSN users are said to have a subjective
expectation that only those to whomthey grant access to their profile will view the information
they post or upload thereto.35

This, however, does not mean thatany Facebook user automatically has a protected expectation
of privacy inall of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that
said user, in this case the children of petitioners,manifest the intention to keepcertain posts
private, through the employment of measures to prevent access thereto or to limit its visibility.36
And this intention can materialize in cyberspace through the utilization of the OSN’s privacy
tools. In other words, utilization of these privacy tools is the manifestation,in cyber world, of the
user’s invocation of his or her right to informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his
or her post orprofile detail should not be denied the informational privacy right which necessarily
accompanies said choice.38 Otherwise, using these privacy tools would be a feckless exercise,
such that if, for instance, a user uploads a photo or any personal information to his or her
Facebook page and sets its privacy level at "Only Me" or a custom list so that only the user or a
chosen few can view it, said photo would still be deemed public by the courts as if the user never
chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip
these privacy tools of their function but it would also disregard the very intention of the user to
keep said photo or information within the confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook
users and whether the disclosure was confidential in nature. In other words, did the minors limit
the disclosure of the photos such that the images were kept within their zones of privacy? This
determination is necessary in resolving the issue of whether the minors carved out a zone of
privacy when the photos were uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated, insist that
Escudero intruded upon their children’s Facebook accounts, downloaded copies ofthe pictures
and showed said photos to Tigol. To them, this was a breach of the minors’ privacy since their
Facebook accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded
with a password.39 Ultimately, they posit that their children’s disclosure was only limited since
their profiles were not open to public viewing. Therefore, according to them, people who are not
their Facebook friends, including respondents, are barred from accessing said post without their
knowledge and consent. Aspetitioner’s children testified, it was Angelawho uploaded the
subjectphotos which were only viewable by the five of them,40 although who these five are do
not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures
of girls cladin brassieres. This student [sic] of mine informed me that these are senior high
school [students] of STC, who are their friends in [F]acebook. x x x They then said [that] there
are still many other photos posted on the Facebook accounts of these girls. At the computer lab,
these students then logged into their Facebook account [sic], and accessed from there the various
photographs x x x. They even told me that there had been times when these photos were ‘public’
i.e., not confined to their friends in Facebook."

In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure
to question the students’ act of showing the photos to Tigol disproves their allegation that the
photos were viewable only by the five of them. Without any evidence to corroborate their
statement that the images were visible only to the five of them, and without their challenging
Escudero’s claim that the other students were able to view the photos, their statements are, at
best, self-serving, thus deserving scant consideration.42

It is well to note that not one of petitioners disputed Escudero’s sworn account that her students,
who are the minors’ Facebook "friends," showed her the photos using their own Facebook
accounts. This only goes to show that no special means to be able to viewthe allegedly private
posts were ever resorted to by Escudero’s students,43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their Facebook friends, or (2) by
the public at large.

Considering that the default setting for Facebook posts is"Public," it can be surmised that the
photographs in question were viewable to everyone on Facebook, absent any proof that
petitioners’ children positively limited the disclosure of the photograph. If suchwere the case,
they cannot invoke the protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez44 is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all
privacy rights to such imagery, particularly under circumstances suchas here, where the
Defendant did not employ protective measures or devices that would have controlled access to
the Web page or the photograph itself.45

Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the
less privacy one can reasonably expect. Messages sent to the public at large inthe chat room or e-
mail that is forwarded from correspondent to correspondent loses any semblance of privacy."

That the photos are viewable by "friends only" does not necessarily bolster the petitioners’
contention. In this regard, the cyber community is agreed that the digital images under this
setting still remain to be outside the confines of the zones of privacy in view of the following:

(1) Facebook "allows the world to be more open and connected by giving its users the
tools to interact and share in any conceivable way;"47

(2) A good number of Facebook users "befriend" other users who are total strangers;48

(3) The sheer number of "Friends" one user has, usually by the hundreds; and

(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are
not Facebook friends with the former, despite its being visible only tohis or her own
Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is
no assurance that it can no longer be viewed by another user who is not Facebook friends with
the source of the content. The user’s own Facebook friend can share said content or tag his or her
own Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook
friends or not with the former. Also, when the post is shared or when a person is tagged, the
respective Facebook friends of the person who shared the post or who was tagged can view the
post, the privacy setting of which was set at "Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook
friends. If C, A’s Facebook friend, tags B in A’s post, which is set at "Friends," the initial
audience of 100 (A’s own Facebook friends) is dramatically increased to 300 (A’s 100 friends
plus B’s 200 friends or the public, depending upon B’s privacy setting). As a result, the audience
who can view the post is effectively expanded––and to a very large extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity towards
user interaction and socialization rather than seclusion or privacy, as it encourages broadcasting
of individual user posts. In fact, it has been said that OSNs have facilitated their users’ self-
tribute, thereby resulting into the "democratization of fame."51 Thus, it is suggested, that a
profile, or even a post, with visibility set at "Friends Only" cannot easily, more so automatically,
be said to be "very private," contrary to petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students’
Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion
since it was the minors’ Facebook friends who showed the pictures to Tigol. Respondents were
mere recipients of what were posted. They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who had legitimate access to the said
posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however,
neither the minors nor their parents imputed any violation of privacy against the students who
showed the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and
broadcasted the photographs. In fact, what petitioners attributed to respondents as an act of
offensive disclosure was no more than the actuality that respondents appended said photographs
in their memorandum submitted to the trial court in connection with Civil Case No. CEB-
38594.52 These are not tantamount to a violation of the minor’s informational privacy rights,
contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos
of minor students scantily clad, are personal in nature, likely to affect, if indiscriminately
circulated, the reputation of the minors enrolled in a conservative institution. However, the
records are bereft of any evidence, other than bare assertions that they utilized Facebook’s
privacy settings to make the photos visible only to them or to a select few. Without proof that
they placed the photographs subject of this case within the ambit of their protected zone of
privacy, they cannot now insist that they have an expectation of privacy with respect to the
photographs in question.

Had it been proved that the access tothe pictures posted were limited to the original uploader,
through the "Me Only" privacy setting, or that the user’s contact list has been screened to limit
access to a select few, through the "Custom" setting, the result may have been different, for in
such instances, the intention to limit access to the particular post, instead of being broadcasted to
the public at large or all the user’s friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children’s ears."53 This means that
self-regulation on the part of OSN users and internet consumers ingeneral is the best means of
avoiding privacy rights violations.54 As a cyberspace communitymember, one has to be
proactive in protecting his or her own privacy.55 It is in this regard that many OSN users,
especially minors, fail.Responsible social networking or observance of the "netiquettes"56 on the
part of teenagers has been the concern of many due to the widespreadnotion that teenagers can
sometimes go too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in
its curriculum to educate its students on proper online conduct may be mosttimely. Too, it is not
only STC but a number of schools and organizations have already deemed it important to include
digital literacy and good cyber citizenshipin their respective programs and curricula in view of
the risks that the children are exposed to every time they participate in online activities.58
Furthermore, considering the complexity of the cyber world and its pervasiveness,as well as the
dangers that these children are wittingly or unwittingly exposed to in view of their unsupervised
activities in cyberspace, the participation of the parents in disciplining and educating their
children about being a good digital citizen is encouraged by these institutions and organizations.
In fact, it is believed that "to limit such risks, there’s no substitute for parental involvement and
supervision."59

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to
beresponsible in their dealings and activities in cyberspace, particularly in OSNs, whenit
enforced the disciplinary actions specified in the Student Handbook, absenta showing that, in the
process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage
incyberspace activities.1âwphi1 Accordingly, they should be cautious enough to control their
privacy and to exercise sound discretion regarding how much information about themselves they
are willing to give up. Internet consumers ought to be aware that, by entering or uploading any
kind of data or information online, they are automatically and inevitably making it permanently
available online, the perpetuation of which is outside the ambit of their control. Furthermore, and
more importantly, information, otherwise private, voluntarily surrendered by them can be
opened, read, or copied by third parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and
activities and must not be negligent in protecting their rights. Equity serves the vigilant.
Demanding relief from the courts, as here, requires that claimants themselves take utmost care in
safeguarding a right which they allege to have been violated. These are indispensable. We cannot
afford protection to persons if they themselves did nothing to place the matter within the
confines of their private zone. OSN users must be mindful enough to learn the use of privacy
tools, to use them if they desire to keep the information private, and to keep track of changes in
the available privacy settings, such as those of Facebook, especially because Facebook is
notorious for changing these settings and the site's layout often.

In finding that respondent STC and its officials did not violate the minors' privacy rights, We
find no cogent reason to disturb the findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July
27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is
hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION

G.R. No. 182601               November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY
FERNANDEZ and RONALD MUNOZ, Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court challenging
the decision1 dated January 21, 2008 and the resolution2 dated April 17, 2008 of the Court of
Appeals (CA) in CAG.R. SP No. 91541.

The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial Court
(RTC), Branch 96, Quezon City, denying Joey M. Pestilos, Dwight Macapanas, Miguel Gaces,
Jerry Fernandez, and Ronald Munoz's (petitioners) Urgent Motion for Regular Preliminary
Investigation, as well as their subsequent motion for reconsideration.

The Antecedent Facts

The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning,
an altercation ensued between the petitioners and Atty. Moreno Generoso (Atty. Generoso)
at Kasiyahan Street, Barangay Holy Spirit, Quezon City where the petitioners and Atty.
Generoso reside.3

Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station) to
report the incident.4 Acting on this report, Desk Officer SPOl Primitivo Monsalve (SPOJ
Monsalve) dispatched SP02 Dominador Javier (SP02 Javier) to go to the scene of the crime and
to render assistance.5 SP02 Javier, together with augmentation personnel from the Airforce, A2C
Alano Sayson and Airman Ruel Galvez, arrived at the scene of the crime less than one hour after
the alleged altercation6 and they saw Atty. Generoso badly beaten.7

Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted the
police officers to "invite" the petitioners to go to Batasan Hills Police Station for investigation.8
The petitioners went with the police officers to Batasan Hills Police Station.9 At the inquest
proceeding, the City Prosecutor of Quezon City found that the petitioners stabbed Atty.
Generoso with a bladed weapon. Atty. Generoso fortunately survived the attack.10

In an Information dated February 22, 2005, the petitioners were indicted for attempted
murder allegedly committed as follows:

That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said accused,
conspiring together, confederating with and mutually helping one another, with intent to kill,
qualified with evident premeditation, treachery and taking advantage of superior strength, did
then and there, willfully, unlawfully and feloniously commence the commission of the crime of
Murder directly by overt acts, by then and there stabbing one Atty. MORENO GENEROSO y
FRANCO, with a bladed weapon, but said accused were not able to perform all the acts of
execution which would produce the crime of Murder by reason of some cause/s or accident other
than their own spontaneous desistance, that is, said complainant was able to parry the attack, to
his damage and prejudice.

CONTRARY TO LAW.11

On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary
Investigation12 on the ground that they had not been lawfully arrested. They alleged that no
valid warrantless arrest took place since the police officers had no personal knowledge that they
were the perpetrators of the crime. They also claimed that they were just "invited" to the
police station. Thus, the inquest proceeding was improper, and a regular procedure for
preliminary investigation should have been performed pursuant to Rule 112 of the Rules of
Court.13

On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for Regular
Preliminary Investigation.14 The court likewise denied the petitioners' motion for
reconsideration.15

The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition for
certiorari. They attributed grave abuse of discretion, amounting to lack or excess of jurisdiction,
on the R TC for the denial of their motion for preliminary investigation.16

The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the petition for lack of merit.17 The
CA ruled that the word "invited" in the Affidavit of Arrest executed by SP02 Javier carried the
meaning of a command. The arresting officer clearly meant to arrest the petitioners to
answer for the mauling of Atty. Generoso. The CA also recognized that the arrest was
pursuant to a valid warrantless arrest so that an inquest proceeding was called for as a
consequence. Thus, the R TC did not commit any grave abuse of discretion in denying the
Urgent Motion for Regular Preliminary Investigation.

The CA saw no merit in the petitioners' argument that the order denying the Urgent Motion for
Regular Preliminary Investigation is void for failure to clearly state the facts and the law upon
which it was based, pursuant to Rule 16, Section 3 of the Revised Rules of Court. The CA found
that the RTC had sufficiently explained the grounds for the denial of the motion.

The petitioners moved for reconsideration, but the CA denied the motion in its Resolution of
April 17, 2008;18 hence, the present petition.

The Issues

The petitioners cited the following assignment of errors:

I.
 WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT
A WARRANT.

II.

WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN

THEY WERE MERELY INVITED TO THE POLICE PRECINCT.

III.

WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY

INVESTIGATION IS VOID FOR FAILURE TO STATE THE FACTS AND THE LAW
UPON WHICH IT WAS BASED.

The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever
issued; they went to the police station only as a response to the arresting officers' invitation. They
even cited the Affidavit of Arrest, which actually used the word "invited. "

The petitioners also claim that no valid warrantless arrest took place under the terms of Rule 112,
Section 7 of the Revised Rules of Court. The incident happened two (2) hours before the police
officers actually arrived at the crime scene. The police officers could not have undertaken a valid
warrantless arrest as they had no personal knowledge that the petitioners were the authors of the
crime.

The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for Regular
Preliminary Investigation is void because it was not properly issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order. The criminal proceedings
against the petitioners should now proceed.

It is unfortunate that the kind of motion that the petitioners filed has to reach this Court for its
resolution. The thought is very tempting that the motion was employed simply to delay the
proceedings and that the use of Rule 65 petition has been abused.

But accepting things as they are, this delay can be more than compensated by fully examining in
this case the legalities surrounding warrantless warrants and establishing the proper
interpretation of the Rules for the guidance of the bench and the bar. These Rules have evolved
over time, and the present case presents to us the opportunity to re-trace their origins,
development and the current applicable interpretation.

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and the 1935,20
197321 and 198722 Constitutions all protect the right of the people to be secure in their persons
against unreasonable searches and seizures. Arrest falls under the term "seizure. "23

This constitutional mandate is identical with the Fourth Amendment of the Constitution of the
United States. The Fourth Amendment traces its origins to the writings of Sir Edward Coke24
and The Great Charter of the Liberties of England (Magna Carta Libertatum), sealed under oath
by King John on the bank of the River Thames near Windsor, England on June 15, 1215.25 The
Magna Carta Libertatum limited the King of England's powers and required the Crown to
proclaim certain liberties26 under the feudal vassals' threat of civil war.27 The declarations in
Chapter 29 of the Magna Carta Libertatum later became the foundational component of the
Fourth Amendment of the United States Constitution.28 It provides:

No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold, or Liberties, or free

Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him,
nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land, We will sell
to no man, we will not deny or defer to any man either Justice or Right.30 [Emphasis supplied]

In United States v. Snyder,31 the United States Supreme Court held that this constitutional
provision does not prohibit arrests, searches and seizures without judicial warrant, but only those
that are unreasonable.32 With regard to an arrest, it is considered a seizure, which must also
satisfy the test of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless
arrests. The Court based these rulings on the common law of America and England that,
according to the Court, were not different from the Spanish laws.34 These court rulings likewise
justified warrantless arrests based on the provisions of separate laws then existing in the
Philippines.35

In 1905, the Court held in The United States v. Wilson36 that Section 3737 of Act No. 183, or
the Charter of Manila, defined the arresting officer's power to arrest without a warrant, at least
insofar as the City of Manila was concerned.

In The United States v. Vallejo, et al.,38 the Court held that in the absence of any provisions
under statutes or local ordinances, a police officer who held similar functions as those of the
officers established under the common law of England and America, also had the power to arrest
without a warrant in the Philippines.

The Court also ruled in The United States v. Santos39 that the rules on warrantless arrest were
based on common sense and reason.40 It further held that warrantless arrest found support under
the then Administrative Code41 which directed municipal policemen to exercise vigilance in the
prevention of public offenses.

In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of the
Provisional Law for the Application of the Penal Code which were provisions taken from the
Spanish Law.
These rules were subsequently established and incorporated in our Rules of Court and
jurisprudence. Presently, the requirements of a warrantless arrest are now summarized in Rule
113, Section 5 which states that: Section 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed, and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be
forth with delivered to the nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112.

A warrantless arrest under the circumstances contemplated under Section 5(a) above has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a
"hot pursuit" arrest.44

For purposes of this case, we shall focus on Section 5(b) – the provision applicable in the present
case. This provision has undergone changes through the years not just in its phraseology but also
in its interpretation in our jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the applicable American and
Philippine jurisprudence to fully understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and English common law
principle on warrantless arrests but also on laws then existing in the Philippines. In Fortaleza,45
the Court cited Rule 28 of the Provisional Law for the Application of the Penal Code which
provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained, persons
whom there is reasonable ground to believe guilty of some offense. It will be the duty of the
authorities, as well as of their agents, to arrest:

First. Such persons as may be arrested under the provisions of rule 27.
Second. A person charged with a crime for which the code provides a penalty greater than that of
confinamiento.

Third. A person charged with a crime for which the code provides a penalty less than that of
confinamiento, if his antecedents or the circumstances of the case would warrant the presumption
that he would fail to appear when summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however, to a defendant who gives
sufficient bond, to the satisfaction of the authority or agent who may arrest him, and who it may
reasonably be presumed will appear whenever summoned by the judge or court competent to try
him.

Fourth. A person coining under the provisions of the preceding paragraph may be arrested,
although no formal complaint has been filed against him, provided the following circumstances
are present:

First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting
to a crime had been committed.

Second. That the authority or agent had sufficient reason to believe that the person arrested
participated in the commission of such unlawful act or crime." [Emphasis and underscoring
supplied]

In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which
provided that certain officials, including police officers may, within the territory defined in the
law, pursue and arrest without warrant, any person found in suspicious places or under
suspicious circumstances, reasonably tending to show that such person has committed, or is
about to commit any crime or breach of the peace.

In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer may arrest
persons walking in the street at night when there is reasonable ground to suspect the commission
of a crime, although there is no proof of a felony having been committed.

The Court ruled in Santos that the arresting officer must justify that there was a probable cause
for an arrest without a warrant. The Court defined probable cause as a reasonable ground of
suspicion, supported by circumstances sufficiently strong in themselves as to warrant a
reasonable man in believing that the accused is guilty. Besides reasonable ground of suspicion,
action in good faith is another requirement. Once these conditions are complied with, the peace
officer is not liable even if the arrested person turned out to be innocent.

Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not
necessary for the arresting officer to first have knowledge that a crime was actually committed.
What was necessary was the presence of reasonably sufficient grounds to believe the existence of
an act having the characteristics of a crime; and that the same grounds exist to believe that the
person sought to be detained participated in it. In addition, it was also established under the old
court rulings that the phrase "reasonable suspicion" was tantamount to probable cause without
which, the warrantless arrest would be invalid and the arresting officer may be held liable for its
breach.48

In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a Chinaman because the
arresting person did not state in what way the Chinaman was acting suspiciously or the particular
act or circumstance which aroused the arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of Court of the rules on
warrantless arrests, the gauge for a valid warrantless arrest was the arresting officer's reasonable
suspicion (probable cause) that a crime was committed and the person sought to be arrested has
participated in its commission. This principle left so much discretion and leeway on the part of
the arresting officer. However, the 1940 Rules of Court has limited this discretion.

B. The 1940 Rules of Court

(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially
incorporated in Section 6, Rule 109 of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without
a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe
that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another. [Emphasis and underscoring supplied]

These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court.
Notably, the 1940 and 1964 Rules have deviated from the old rulings of the Court. Prior to the
1940 Rules, the actual commission of the offense was not necessary in determining the validity
of the warrantless arrest. Too, the arresting officer's determination of probable cause (or
reasonable suspicion) applied both as to whether a crime has been committed and whether the
person to be arrested has committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be
actual commission of an offense, thus, removing the element of the arresting officer's
"reasonable suspicion of the commission of an offense." Additionally, the determination of
probable cause, or reasonable suspicion, was limited only to the determination of whether the
person to be arrested has committed the offense. In other words, the 1940 and 1964 Rules of
Court restricted the arresting officer's discretion in warrantless arrests under Section 6(b), Rule
113 of the 1964 Rules of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was re-
worded and re-numbered when it became Section 5, Rule 113 of the 1985 Rules of Criminal
Procedure, to wit:

Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. [Emphasis and underscoring
supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions
introduced under the 1964 Rules of Court. More importantly, however, it added a qualification
that the commission of the offense should not only have been "committed" but should have been
"just committed." This limited the arresting officer's time frame for conducting an investigation
for purposes of gathering information indicating that the person sought to be arrested has
committed the crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the
incorporation of the word "probable cause" as the basis of the arresting officer's determination on
whether the person to be arrested has committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure
provides that:

When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it.
From the current phraseology of the rules on warrantless arrest, it appears that for purposes of
Section S(b ), the following are the notable changes: first, the contemplated offense was qualified
by the word "just," connoting immediacy; and second, the warrantless arrest of a person sought
to be arrested should be based on probable cause to be determined by the arresting officer based
on his personal knowledge of facts and circumstances that the person to be arrested has
committed it.

It is clear that the present rules have "objectified" the previously subjective determination of the
arresting officer as to the (1) commission of the crime; and (2) whether the person sought to be
arrested committed the crime. According to Feria, these changes were adopted to minimize
arrests based on mere suspicion or hearsay.51

As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure are: first, an offense has just been committed; and second, the arresting
officer has probable cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it.

For purposes of this case, we shall discuss these elements separately below, starting with the
element of probable cause, followed by the elements that the offense has just been committed,
and the arresting officer's personal knowledge of facts or circumstances that the person to be
arrested has committed the crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable
cause

The existence of "probable cause" is now the "objectifier" or the determinant on how the
arresting officer shall proceed on the facts and circumstances, within his personal knowledge, for
purposes of determining whether the person to be arrested has committed the crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,52 the U.S. Supreme Court held that the Fourth Amendment of the
Federal Constitution does not prohibit arrests without a warrant although such arrests must be
reasonable. According to State v. Quinn,53 the warrantless arrest of a person who was
discovered in the act of violating the law is not a violation of due process.

The U.S. Supreme Court, however indicated in Henry v. United States54 that the Fourth
Amendment limited the circumstances under which warrantless arrests may be made. The
necessary inquiry is not whether there was a warrant or whether there was time to get one, but
whether at the time of the arrest probable cause existed. The term probable cause is synonymous
to "reasonable cause" and "reasonable grounds."55

In determining the existence of probable cause, the arresting officer should make a thorough
investigation and exercise reasonable judgment. The standards for evaluating the factual basis
supporting a probable cause assessment are not less stringent in warrantless arrest situation than
in a case where a warrant is sought from a judicial officer. The probable cause determination of a
warrantless arrest is based on information that the arresting officer possesses at the time of the
arrest and not on the information acquired later.56

In evaluating probable cause, probability and not certainty is the determinant of reasonableness
under the Fourth Amendment. Probable cause involves probabilities similar to the factual and
practical questions of everyday life upon which reasonable and prudent persons act. It is a
pragmatic question to be determined in each case in light of the particular circumstances and the
particular offense involved.57

In determining probable cause, the arresting officer may rely on all the information in his
possession, his fair inferences therefrom, including his observations. Mere suspicion does not
meet the requirements of showing probable cause to arrest without warrant especially if it is a
mere general suspicion. Probable cause may rest on reasonably trustworthy information as well
as personal knowledge. Thus, the arresting officer may rely on information supplied by a witness
or a victim of a crime; and under the circumstances, the arresting officer need not verify such
information.58

In our jurisdiction, the Court has likewise defined probable cause in the context of Section 5(b),
Rule 113 of the Revised Rules of Criminal Procedure.

In Abelita Ill v. Doria et al.,59 the Court held that personal knowledge of facts must be based on
probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of committing the offense is based on
actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. A reasonable suspicion, therefore, must be
founded on probable cause, coupled with good faith on the part of the peace officers making the
arrest.

i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure,
distinguished from probable cause in preliminary investigations and the judicial proceeding for
the issuance of a warrant of arrest

The purpose of a preliminary investigation is to determine whether a crime has been committed
and whether there is probable cause to believe that the accused is guilty of the crime and should
be held for triat.60 In Buchanan v. Viuda de Esteban,61 we defined probable cause as the
existence of facts and circumstances as would excite the belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime
for which he was prosecuted.

In this particular proceeding, the finding of the existence of probable cause as to the guilt of the
respondent was based on the submitted documents of the complainant, the respondent and his
witnesses.62

On the other hand, probable cause in judicial proceedings for the issuance of a warrant of arrest
is defined as the existence of such facts and circumstances that would lead a reasonably discreet
and prudent person to believe that an offense has been committed by the person sought to be
arrested.

Hence, before issuing a warrant of arrest, the judge must be satisfied that based on the evidence
submitted, there is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof. At this stage of the criminal proceeding, the judge is not yet
tasked to review in detail the evidence submitted during the preliminary investigation. It is
sufficient that he personally evaluates the evidence in determining probable cause63 to issue a
warrant of arrest.

In contrast, the arresting officer's determination of probable cause under Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure is based on his personal knowledge of facts or
circumstances that the person sought to be arrested has committed the crime. These facts or
circumstances pertain to actual facts or raw evidence, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making.the arrest.

The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man
to believe that the person accused is guilty of the offense with which he is charged,64 or an
actual belief or reasonable ground of suspicion, based on actual facts.65

It is clear therefore that the standard for determining "probable cause" is invariable for the officer
arresting without a warrant, the public prosecutor, and the judge issuing a warrant of arrest. It is
the existence of such facts and circumstances that would lead a reasonably discreet and prudent
person to believe that an offense has been committed by the person sought to be arrested or held
for trial, as the case may be.

However, while the arresting officer, the public prosecutor and the judge all determine "probable
cause," within the spheres of their respective functions, its existence is influenced heavily by the
available facts and circumstance within their possession. In short, although these officers use the
same standard of a reasonable man, they possess dissimilar quantity of facts or circumstances, as
set by the rules, upon which they must determine probable cause.

Thus, under the present rules and jurisprudence, the arresting officer should base his
determination of probable cause on his personal knowledge of facts and circumstances that the
person sought to be arrested has committed the crime; the public prosecutor and the judge must
base their determination on the evidence submitted by the parties.

In other words, the arresting officer operates on the basis of more limited facts, evidence or
available information that he must personally gather within a limited time frame.

Hence, in Santos,66 the Court acknowledged the inherent limitations of determining probable
cause in warrantless arrests due to the urgency of its determination in these instances. The Court
held that one should not expect too much of an ordinary policeman. He is not presumed to
exercise the subtle reasoning of a judicial officer. Oftentimes, he has no opportunity to make
proper investigation but must act in haste on his own belief to prevent the escape of the
criminal.67

ii) Second and Third Elements of Section 5(b), Rule 113:

The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it

We deem it necessary to combine the discussions of these two elements as our jurisprudence
shows that these were usually taken together in the Court's determination of the validity of the
warrantless arrests that were made pursuant to Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure.

In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on December 8, 1994. It

was only on December 11, 1994 that Chancellor Posadas requested the NBI's assistance. On the
basis of the supposed identification of two (2) witnesses, the NBI attempted to arrest Francis
Carlo Taparan and Raymundo Narag three (3) days after the commission of the crime. With this
set of facts, it cannot be said that the officers have personal knowledge of facts or circumstances
that the persons sought to be arrested committed the crime. Hence, the Court invalidated the
warrantless arrest.

Similarly, in People v. Burgos,69 one Cesar Masamlok personally and voluntarily surrendered to
the authorities, stating that Ruben Burgos forcibly recruited him to become a member of the
NPA, with a threat of physical harm. Upon receipt of this information, a joint team of PC-INP
units was dispatched to arrest Burgos who was then plowing the field. Indeed, the arrest was
invalid considering that the only information that the police officers had in effecting the arrest
was the information from a third person. It cannot be also said in this case that there was
certainty as regards the commission of a crime.

In People v. del Rosario,70 the Court held that the requirement that an offense has just been
committed means that there must be a large measure of immediacy between the time the offense
was committed and the time of the arrest. If there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured.

The Court held that the arrest of del Rosario did not comply with these requirements because he
was arrested only a day after the commission of the crime and not immediately thereafter.
Additionally, the arresting officers were not present and were not actual eyewitnesses to the
crime. Hence, they had no personal knowledge of facts indicating that the person to be arrested
had committed the offense. They became aware of del Rosario's identity as the driver of the
getaway tricycle only during the custodial investigation.

In People v. Cendana,71 the accused was arrested one (1) day after the killing of the victim and
only on the basis of information obtained from unnamed sources. The unlawful arrest was held
invalid.
In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the commission of the crime
was held invalid because the crime had not just been committed. Moreover, the "arresting"
officers had no "personal knowledge" of facts indicating that the accused was the gunman who
had shot the victim. The information upon which the police acted came from statements made by
alleged eyewitnesses to the shooting; one stated that the accused was the gunman; another was
able to take down the alleged gunman's car's plate number which turned out to be registered in
the name of the accused's wife. That information did not constitute "personal knowledge."

In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same day was held valid.
In this case, the arresting officer had knowledge of facts which he personally gathered in the
course of his investigation, indicating that the accused was one of the perpetrators.

In People v. Gerente,74 the policemen arrested Gerente only about three (3) hours after Gerente
and his companions had killed the victim. The Court held that the policemen had personal
knowledge of the violent death of the victim and of facts indicating that Gerente and two others
had killed him. The warrantless arrest was held valid.

In People v. Alvario,75 the warrantless arrest came immediately after the arresting officers
received information from the victim of the crime. The Court held that the personal knowledge
of the arresting officers was derived from the information supplied by the victim herself who
pointed to Alvario as the man who raped her at the time of his arrest. The Court upheld the
warrantless arrest. In People v. Jayson,76 there was a shooting incident. The policemen who
were summoned to the scene of the crime found the victim. The informants pointed to the
accused as the assailant only moments after the shooting. The Court held that the arresting
officers acted on the basis of personal knowledge of the death of the victim and of facts
indicating that the accused was the assailant. Thus, the warrantless arrest was held valid.

In People v. Acol,77 a group held up the passengers in a jeepney and the policemen immediately
responded to the report of the crime. One of the victims saw four persons walking towards Fort
Bonifacio, one of whom was wearing his jacket. The victim pointed them to the policemen.
When the group saw the policemen coming, they ran in different directions. The Court held that
the arrest was valid.

In Cadua v. CA,78 there was an initial report to the police concerning a robbery. A radio
dispatch was then given to the arresting officers, who proceeded to Alden Street to verify the
authenticity of the radio message. When they reached the place, they met with the complainants
who initiated the report about the robbery. Upon the officers' invitation, the victims joined them
in conducting a search of the nearby area where the accused was spotted in the vicinity. Based on
the reported statements of the complainants, he was identified as a logical suspect in the offense
just committed. Hence, the arrest was held valid.

In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal Procedure
does not require the arresting officers to personally witness the commission of the offense.

In this case, P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa
Sia about a shooting incident. He dispatched a team headed by SP03 Ramirez to investigate the
incident. SP03 Ramirez later reported that a certain William Sia was wounded while Judge
Abelita III, who was implicated in the incident, and his wife just left the place of the incident.
P/Supt. Doria looked for Abelita III and when he found him, he informed him of the incident
report. P/Supt. Doria requested Abelita III to go with him to the police headquarters as he had
been reported to be involved in the incident. Abelita III agreed but suddenly sped up his vehicle
and proceeded to his residence where P/Supt. Doria caught him up as he was about to run
towards his house.

The police officers saw a gun in the front seat of the vehicle beside the driver's seat as Abelita III
opened the door. They also saw a shotgun at the back of the driver's seat. The police officers
confiscated the firearms and arrested Abelita III. The Court held that the petitioner's act of trying
to get away, coupled with the incident report which they investigated, were enough to raise a
reasonable suspicion on the part of the police authorities as to the existence of probable cause.
Based on these discussions, it appears that the Court's appreciation of the elements that "the
offense has just been committed" and ''personal knowledge of facts and circumstances that the
person to be arrested committed it" depended on the particular circumstances of the case.
However, we note that the element of ''personal knowledge of facts or circumstances" under
Section S(b ), Rule 113 of the Revised Rules of Criminal Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances. According to the Black's Law
Dictionary,80 "circumstances are attendant or accompanying facts, events or conditions. "
Circumstances may pertain to events or actions within the actual perception, personal evaluation
or observation of the police officer at the scene of the crime. Thus, even though the police officer
has not seen someone actually fleeing, he could still make a warrantless arrest if, based on his
personal evaluation of the circumstances at the scene of the crime, he could determine the
existence of probable cause that the person sought to be arrested has committed the crime.
However, the determination of probable cause and the gathering of facts or circumstances should
be made immediately after the commission of the crime in order to comply with the element of
immediacy.

In other words, the clincher in the element of ''personal knowledge of facts or circumstances" is
the required element of immediacy within which these facts or circumstances should be gathered.
This required time element acts as a safeguard to ensure that the police officers have gathered the
facts or perceived the circumstances within a very limited time frame. This guarantees that the
police officers would have no time to base their probable cause finding on facts or circumstances
obtained after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time gap from the commission of
the crime to the arrest widens, the pieces of information gathered are prone to become
contaminated and subjected to external factors, interpretations and hearsay. On the other
hand, with the element of immediacy imposed under Section 5(b), Rule 113 of the Revised Rules
of Criminal Procedure, the police officer's determination of probable cause would necessarily be
limited to raw or uncontaminated facts or circumstances, gathered as they were within a very
limited period of time. The same provision adds another safeguard with the requirement of
probable cause as the standard for evaluating these facts of circumstances before the police
officer could effect a valid warrantless arrest.
In light of the discussion above on the developments of Section 5(b), Rule 113 of the Revised
Rules of Criminal Procedure and our jurisprudence on the matter, we hold that the following
must be present for a valid warrantless arrest: 1) the crime should have been just committed; and
2) the arresting officer's exercise of discretion is limited by the standard of probable cause to be
determined from the facts and circumstances within his personal knowledge. The requirement of
the existence of probable cause objectifies the reasonableness of the warrantless arrest for
purposes of compliance with the Constitutional mandate against unreasonable arrests.

Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the present
petitioners, the question to be resolved is whether the requirements for a valid warrantless arrest
under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure were complied with,
namely: 1) has the crime just been committed when they were arrested? 2) did the arresting
officer have personal knowledge of facts and circumstances that the petitioners committed the
crime? and 3) based on these facts and circumstances that the arresting officer possessed at the
time of the petitioners' arrest, would a reasonably discreet and prudent person believe that the
attempted murder of Atty. Generoso was committed by the petitioners? We rule in the
affirmative.

III. Application of Section S(b), Rule 113 of the Revised Rules

of Criminal Procedure in the present case: there was a
valid warrantless arrest

We deem it necessary to review the records of the CA because it has misapprehended the facts in
its decision.81 From a review of the records, we conclude that the police officers had personal
knowledge of facts or circumstances upon which they had properly determined probable cause in
effecting a warrantless arrest against the petitioners. We note, however, that the determination of
the facts in the present case is purely limited to the resolution of the issue on the validity of the
warrantless arrests of the petitioners.

Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005, the date that the
alleged crime was committed, the petitioners were brought in for investigation at the Batasan
Hills Police Station. The police blotter stated that the alleged crime was committed at 3:15
a.m. on February 20, 2005, along Kasiyahan St., Brgy. Holy Spirit, Quezon City.

The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty. Generoso and
the petitioners already inside the police station, would connote that the arrest took place less than
one hour from the time of the occurrence of the crime. Hence, the CA finding that the arrest took
place two (2) hours after the commission of the crime is unfounded.

The arresting officers' personal observation of Atty. Generoso's bruises when they arrived at the
scene of the crime is corroborated by the petitioners' admissions that Atty: Generoso indeed
suffered blows from petitioner Macapanas and his brother Joseph Macapanas,83 although they
asserted that they did it in self-defense against Atty. Generoso.

Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate84 that was
issued by East Avenue Medical Center on the same date of the alleged mauling. The medical
check-up of Atty. Generoso that was made about 8:10 a.m. on the date of the incident, showed
the following findings: "Contusion Hematoma, Left Frontal Area; Abrasion, T6 area, right
midclavicular line periorbital hematoma, left eye; Abrasion, distal 3rd posterolateral aspect of
right forearm; Abrasion, 4th and fifth digit, right hand; Abrasion on area of ih rib (L ant. Chest
wall), tenderness on L peripheral area, no visible abrasion. In addition, the attending physician,
Dr. Eva P. Javier, diagnosed Atty. Generoso of contusion hematoma, periorbital L., and
traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime upon the complaint of
Atty. Generoso of his alleged mauling; the police officers responded to the scene of the
crime less than one (1) hour after the alleged mauling; the alleged crime transpired in a
community where Atty. Generoso and the petitioners reside; Atty. Generoso positively identified
the petitioners as those responsible for his mauling and, notably, the petitioners85 and Atty.
Generoso86 lived almost in the same neighborhood; more importantly, when the petitioners were
confronted by the arresting officers, they did not deny their participation in the incident with
Atty. Generoso, although they narrated a different version of what transpired.87

With these facts and circumstances that the police officers gathered and which they have
personally observed less than one hour from the time that they have arrived at the scene of the
crime until the time of the arrest of the petitioners, we deem it reasonable to conclude that the
police officers had personal knowledge of facts or circumstances justifying the petitioners'
warrantless arrests. These circumstances were well within the police officers' observation,
perception and evaluation at the time of the arrest. These circumstances qualify as the police
officers' personal observation, which are within their personal knowledge, prompting them to
make the warrantless arrests.

Similar to the factual antecedents in Jayson,88 the police officers in the present case saw Atty.
Generoso in his sorry bloodied state. As the victim, he positively identified the petitioners as
the persons who mauled him; however, instead of fleeing like what happened in Jayson, the
petitioners agreed to go with the police officers.

This is also similar to what happened in People v. Tonog, Jr.89 where Tonog did not flee but
voluntarily went with the police officers. More than this, the petitioners in the present case even
admitted to have been involved in the incident with Atty. Generoso, although they had another
version of what transpired.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the courts to
consider if the police officers have complied with the requirements set under Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure, specifically, the requirement of immediacy; the
police officer's personal knowledge of facts or circumstances; and lastly, the propriety of the
determination of probable cause that the person sought to be arrested committed the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve
immediately dispatched the arresting officer, SP02 Javier, to render personal assistance to the
victim.90 This fact alone negates the petitioners' argument that the police officers did not have
personal knowledge that a crime had been committed - the police immediately responded and
had personal knowledge that a crime had been committed.1âwphi1

To reiterate, personal knowledge of a crime just committed under the terms of the above-cited
provision, does not require actual presence at the scene while a crime was being committed; it is
enough that evidence of the recent commission of the crime is patent (as in this case) and the
police officer has probable cause to believe based on personal knowledge of facts or
circumstances, that the person to be arrested has recently committed the crime.

Considering the circumstances of the stabbing, particularly the locality where it took place, its
occasion, the personal circumstances of the parties, and the immediate on-the-spot investigation
that took place, the immediate and warrantless arrests of the perpetrators were proper.
Consequently, the inquest proceeding that the City Prosecutor conducted was appropriate under
the circumstances.

IV. The term "invited" in the Affidavit of Arrest is construed to

mean as an authoritative command

After the resolution of the validity of the warrantless arrest, the discussion of the petitioners'
second issue is largely academic. Arrest is defined as the taking of a person into custody in order
that he may be bound to answer for the commission of an offense. An arrest is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the person making
the arrest.91 Thus, application of actual force, manual touching of the body, physical restraint or
a formal declaration of arrest is not required. It is enough that there be an intention on the part of
one of the parties to arrest the other and the intent of the other to submit, under the belief and
impression that submission is necessary.92

Notwithstanding the term "invited" in the Affidavit of Arrest,93 SP02 Javier could not but have
the intention of arresting the petitioners following Atty. Generoso' s account. SP02 Javier did not
need to apply violent physical restraint when a simple directive to the petitioners to follow him to
the police station would produce a similar effect. In other words, the application of actual force
would only be an alternative if the petitioners had exhibited resistance.

To be sure, after a crime had just been committed and the attending policemen have acquired
personal knowledge of the incidents of the crime, including the alleged perpetrators, the arrest of
the petitioners as the perpetrators pointed to by the victim, was not a mere random act but was in
connection with a particular offense. Furthermore, SP02 Javier had informed the petitioners, at
the time of their arrest, of the charges against them before taking them to Batasan Hills Police
Station for investigation.94

V. The Order denying the motion for preliminary

investigation is valid

In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the
petitioners' urgent motion for regular preliminary investigation for allegedly having been issued
in violation of Article VIII, Section 14 of the 1987 Constitution95 and Rule 16, Section 3 of the
Revised Rules of Court.96

The RTC, in its Order dismissing the motion, clearly states that the Court is not persuaded by the
evidentiary nature of the allegations in the said motion of the accused. Aside from lack of clear
and convincing proof, the Court, in the exercise of its sound discretion on the matter, is legally
bound to pursue and hereby gives preference to the speedy disposition of the case."

We do not see any taint of impropriety or grave abuse of discretion in this Order. The RTC, in
resolving the motion, is not required to state all the facts found in the record of the case. Detailed
evidentiary matters, as the RTC decreed, is best reserved for the full-blown trial of the case, not
in the preliminary incidents leading up to the trial.

Additionally, no less than the Constitution itself provides that it is the decision that should state
clearly and distinctly the facts and the law on which it is based. In resolving a motion, the court
is only required to state clearly and distinctly the reasons therefor. A contrary system would only
prolong the proceedings, which was precisely what happened to this case. Hence, we uphold the
validity of the RTC's order as it correctly stated the reason for its denial of the petitioners' Urgent
Motion for Regular Preliminary Investigation. WHEREFORE, premises considered, we hereby
DENY the petition, and hereby AFFIRM the decision dated January 21, 2008 and the resolution
dated April 17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor of
Quezon City is hereby ORDERED to proceed with the criminal proceedings against the
petitioners.

SO ORDERED.

G.R. Nos. 212140-41               January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the
Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D.
BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-
affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or crossexamine.

- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of the
Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman, National
Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod) (collectively,
respondents), from conducting further proceedings in OMB-CC-13-03013 and OMB-C-C-
13-0397 until the present Petition has been resolved with finality; and (2) this Court’s
declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)was denied due
process of law, and that the Order of the Ombudsman dated 27 March 2014 and the proceedings
in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of
the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v.

Jose "Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under
Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office,
Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the
complaint for Plunder as defined underRA No. 7080 and for violation of Section 3(e) of RA
No. 3019 (Anti-Graft and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in
OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that
criminal proceedings for Plunder as defined in RA No. 7080 be conducted against Sen.
Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in
OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that
criminal proceedings for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of
RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter affidavit in
OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits
between 9 December 2013 and 14 March 2014.5

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in
OMB-C-C-13-0313. In his Request, Sen. Estrada asked for copies of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

 (e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents

and/or additional witnesses for the Complainants.6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the
evidence submitted by the complainant which he may not have been furnished’ (Section 3[b],
Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c],
Rule II of the Rules of Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The
pertinent portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b],
Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office
of the Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished all the filings of the
respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaint shall state the address of the respondent and shall be accompanied by
the affidavits of the complainant and his witnesses, as well as other supporting documents
to establish probable cause …

x x x           x x x          x x x

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of
this section, with copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure
of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on
April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits
and controverting evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of the counter-
affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen.
Estrada] a copy of the Complaint and its supporting affidavits and documents; and this Office
complied with this requirement when it furnished [Sen. Estrada] with the foregoing documents
attached to the Orders to File Counter-Affidavit dated 19 November 2013 and 25 November
2013.

It is to be noted that there is no provision under this Office’s Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason,
Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents
in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the
Ombudsman, the respondents are only required to furnish their counter-affidavits and
controverting evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based on whatever
rights he believes [that] he is entitled to or those that may be derived from the phrase "due
process of law." Thus, this Office cannot grant his motion to be furnished with copies of all the
filings by the other parties. Nevertheless, he should be furnished a copy of the Reply of
complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has
been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-

Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED.
He is nevertheless entitled to be furnished a copy of the Reply if complainant opts to file such
pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a

Joint Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with
one count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada
filed a Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April
2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the charges against
him. Without filing a Motion for Reconsideration of the Ombudsman’s 27 March 2014 Order
denying his Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and
sought to annul and set aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED

27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no
appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, except
through this Petition."11 Sen. Estrada applied for the issuance of a temporary restraining order
and/or writ of preliminary injunction to restrain public respondents from conducting further
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a
judgment declaring that (a) he has been denied due process of law, and as a consequence thereof,
(b) the Order dated 27 March 2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-
C-C-13-0397 subsequent to and affected bythe issuance of the 27 March 2014 Order, are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-
0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan,
Amata, Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and
directing him to comment thereon within a non-extendible period of five days fromreceipt of the
order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished
copies of counter-affidavits of his co-respondents deprived him of his right to procedural due
process, and he has filed the present Petition before thisCourt. The Ombudsman denied Sen.
Estrada’s motion to suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for
reconsideration of the Order dated 15 May 2014 but his motion was denied in an Order dated 3
June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen.
Estrada had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying,
among other motions filed by the other respondents, Sen. Estrada’s motion for reconsideration
dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March
2014 and before the promulgation of the assailed Joint Resolution, this Office thereafter
reevaluated the request and granted it byOrder dated 7 May 2014 granting his request. Copies of
the requested counter-affidavits were appended to the copy of the Order dated 7 May 2014
transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his
right to procedural due process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents),
through the Officeof the Solicitor General, filed their Comment to the present Petition. The
public respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

 II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN

THE ORDINARY COURSE OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION

AND/OR TEMPORARY RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated
that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada
should have either filed a motion for reconsideration of the 27 March 2014 Order or incorporated
the alleged irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution.
There was also no violation of Sen. Estrada’s right to due process because there is no rule which
mandates that a respondent such as Sen. Estrada be furnished with copies of the submissions of
his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada
insisted that he was denied due process. Although Sen. Estrada received copies of the counter-
affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of
Tuason’s counter-affidavits, heclaimed that he was not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the

FIO Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March

2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and
 k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues
that the Petition is not rendered moot by the subsequent issuance of the 7 May 2014 Joint
Order because there is a recurring violation of his right to due process. Sen. Estrada also
insists that there is no forum shopping as the present Petition arose from an incident in
the main proceeding, and that he has no other plain, speedy, and adequate remedy in the
ordinary course of law. Finally, Sen. Estrada reiterates his application for the issuance of
a temporary restraining order and/or writ of preliminary injunction to restrain public
respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-
13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of
Sen. Estrada’s Request did not constitute grave abuse of discretion. Indeed, the denial did not
violate Sen. Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with
copies of the counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as
well as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the
Ombudsman, for ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the following

manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by
the affidavits of the complainant and his witnesses, as well as other supporting documents
to establish probable cause. They shall be in such number of copies as there are
respondents, plus two (2) copies for the official file. The affidavits shall be subscribed
and sworn to before any prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of who must certify
thathe personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss it if he finds no ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents. The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been furnished and to copy them at
his expense. If the evidence is voluminous, the complainant may be required to specify
those which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.
 Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of
this section, with copies thereof furnished by him to the complainant. The respondent
shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party ora witness. The parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits
and other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial. Section 4.
Resolution of investigating prosecutor and its review.— If the investigating prosecutor
finds cause to hold the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the complainant and his witnesses;
that there is reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the complaint and of
the evidence submitted against him; and that he was given an opportunity to submit
controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman orhis deputy
in cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without

the prior written authority or approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by
himself, file the information against the respondent, or direct any other assistant prosecutor or
state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule
II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A.
3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the
Revised Penal Code, and for such other offenses committed by public officers and employees in
relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the
case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be

conducted by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

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

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

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section
3, Rule 112 of the Rules of Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on thecomplainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any event,
the respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a
motion for a bill of particulars be entertained. If respondent desires any matter in the
complainant’s affidavit to be clarified, the particularization thereof may be done at the
time of clarificatory questioning in the manner provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted
for resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are
facts material to the case which the investigating officer may need to be clarified on, he
may conduct a clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is impracticable, the
clarificatory questioning may be conducted in writing, whereby the questions desired to
be asked by the investigating officer or a party shall be reduced into writing and served
on the witness concerned who shall be required to answer the same in writing and under
oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall
forward the records of the case together with his resolution to the designated authorities
for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of
the proper Deputy Ombudsman in all other cases.
 xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally
approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or
reinvestigation of an approved order or resolution shall be allowed, the same to be filed
within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the
proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the resolution
subject of the motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or
rule which states that it is a compulsory requirement of due process in a preliminary
investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-
respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor
Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen.
Estrada’s claim. What the Rules of Procedure of the Office of the Ombudsman require is for the
Ombudsman to furnish the respondent with a copy of the complaint and the supporting affidavits
and documents at the time the order to submit the counter-affidavit is issued to the respondent.
This is clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the
Ombudsman when it states, "[a]fter such affidavits [of the complainant and his witnesses] have
been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to submit, within ten (10)
days from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-
affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the
complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-
affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No
grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27
March 2014 Order which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman
provides that a respondent "shall have access to the evidence on record," this provision should be
construed in relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal
Procedure. First, Section 4(a) states that "the investigating officer shall require the complainant
or supporting witnesses to execute affidavits to substantiate the complaint." The "supporting
witnesses" are the witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a
copy of the affidavits and all other supporting documents, directing the respondent" tosubmit his
counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in
Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant
and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the
same Rule II that a respondent shall have "access to the evidence on record" does not stand
alone, but should be read in relation to the provisions of Section 4(a and b) of the same Rule II
requiring the investigating officer to furnish the respondent with the "affidavits and other
supporting documents" submitted by "the complainant or supporting witnesses." Thus, a
respondent’s "access to evidence on record" in Section 4(c), Rule II of the Ombudsman’s Rules
of Procedure refers to the affidavits and supporting documents of "the complainant or supporting
witnesses" in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he
respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense." A respondent’s right to examine
refers only to "the evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of
the Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits
executed by the corespondents should be furnished to a respondent. Justice Velasco’s dissent
relies on the ruling in Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case,
in which a different set of rules of procedure and standards apply. Sen. Estrada’s Petition, in
contrast, involves the preliminary investigation stage in a criminal case. Rule III on the
Procedure in Administrative Cases of the Rules of Procedure of the Office of the Ombudsman
applies in the Reyes case, while Rule II on the Procedure in Criminal Cases of the Rules of
Procedure of the Office of the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the
Rules of Court apply in a suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who
were both employees of the Land Transportation Office. Peñaloza submitted his counter-
affidavit, as well as those of his two witnesses. Reyes adopted his counter-affidavit in another
case before the Ombudsman as it involved the same parties and the same incident. None of the
parties appeared during the preliminary conference. Peñaloza waived his right to a formal
investigation and was willing to submit the case for resolution based on the evidence on record.
Peñaloza also submitted a counter-affidavit of his third witness. The Ombudsman found Reyes
guilty of grave misconduct and dismissed him from the service. On the other hand, Peñaloza was
found guilty of simple misconduct and penalized with suspension from office without pay for six
months. This Court agreed with the Court of Appeals’ finding that Reyes’ right to due process
was indeed violated. This Court remanded the records of the case to the Ombudsman, for two
reasons: (1) Reyes should not have been meted the penalty of dismissal from the service when
the evidence was not substantial, and (2) there was disregard of Reyes’ right to due process
because he was not furnished a copy of the counter-affidavits of Peñaloza and of Peñaloza’s
three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits happened in
the administrative proceedings on the merits, which resulted in Reyes’ dismissal from the
service. In Sen. Estrada’s Petition, the denial of his Request happened during the preliminary
investigation where the only issue is the existence of probable cause for the purpose of
determining whether an information should be filed, and does not prevent Sen. Estrada from
requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even
during the trial.

We should remember to consider the differences in adjudicating cases, particularly an

administrative case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on
whether the cases to which they are meant to apply are criminal, civil or administrative in
character. In criminal actions, proof beyond reasonable doubt is required for conviction;in civil
actions and proceedings, preponderance of evidence, as support for a judgment; and in
administrative cases, substantial evidence, as basis for adjudication. In criminal and civil actions,
application of the Rules of Court is called for, with more or less strictness. In administrative
proceedings, however, the technical rules of pleadingand procedure, and of evidence, are not
strictly adhered to; they generally apply only suppletorily; indeed, in agrarian disputes
application of the Rules of Court is actually prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and "probable cause merely implies probability of guilt and
should be determined in a summary manner. A preliminary investigation is not a part of the trial
and it is only in a trial where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his innocence."18 Thus, the rights
of a respondent in a preliminary investigation are limited to those granted by procedural law.

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

whether there is sufficient ground to engender a well founded belief that a crime cognizable by
the Regional Trial Court has been committed and that the respondent is probably guilty thereof,
and should be held for trial. The quantum of evidence now required in preliminary investigation
is such evidence sufficient to "engender a well founded belief" as to the fact of the commission
of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the
occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of
such evidence only as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof. We are in accord with the state prosecutor’s
findings in the case at bar that there exists prima facie evidence of petitioner’s involvement in the
commission of the crime, it being sufficiently supported by the evidence presented and the facts
obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and
Hanopol are inadmissible as to him since he was not granted the opportunity of cross-
examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-
affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine. Thus, even if
petitioner was not given the opportunity to cross-examine Galarion and Hanopol atthe time they
were presented to testify during the separate trial of the case against Galarion and Roxas, he
cannot assert any legal right to cross-examine them at the preliminary investigation precisely
because such right was never available to him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court during the trial proper and not in the
preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction
and control over the conduct of a preliminary investigation. If by its very nature a preliminary
investigation could be waived by the accused, we find no compelling justification for a strict
application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of the
Rules of Court, the record of the preliminary investigation does not form part of the record of the
case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be
admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and the trial court
can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court to
compel the presentation of Galarion and Hanopol for purposes of cross-examination.19
(Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the
Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: "x x x
[A]dmissions made by Peñaloza in his sworn statement are binding only on him. Res inter alios
act a alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or
omission of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen.
Estrada’s co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velasco’s
argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-
039720 mentioned the testimonies of Sen. Estrada’s corespondents like Tuason and Cunanan,
their testimonies were merely corroborative of the testimonies of complainants’ witnesses
Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in isolation from the
testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada
to establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-
13-0313 and OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it
examined the evidence, found probable cause, and issued a warrant of arrest against Sen. Estrada
on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that "the due process standards that at the
very least should be considered in the conduct of a preliminary investigation are those that this
Court first articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put,
the Ang Tibay guidelines for administrative cases do not apply to preliminary investigations in
criminal cases. An application of the Ang Tibay guidelines to preliminary investigations will
have absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay
described as the "fundamental and essential requirements of due process in trials and
investigations of an administrative character."22 These requirements are "fundamental and
essential" because without these, there isno due process as mandated by the Constitution. These
"fundamental and essential requirements" cannot be taken away by legislation because theyare
part of constitutional due process. These "fundamental and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x
x.

(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must consider
the evidence presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does
imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." x x x.

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

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his
own independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in sucha manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance of this duty is
inseparable from the authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang
Tibay failed to explicitly state was, prescinding from the general principles governing due
process, the requirement of an impartial tribunalwhich, needless to say, dictates that one called
upon to resolve a dispute may not sit as judge and jury simultaneously, neither may he review his
decision on appeal."25 The GSIS clarification affirms the non applicability of the Ang Tibay
guidelines to preliminary investigations in criminal cases: The investigating officer, which is the
role that the Office of the Ombudsman plays in the investigation and prosecution of government
personnel, will never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The
purpose of the Office of the Ombudsman in conducting a preliminary investigation, after
conducting its own factfinding investigation, is to determine probable cause for filing an
information, and not to make a final adjudication of the rights and obligations of the parties
under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the
corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with
weak cases that will only be dismissed, as well as to spare a person from the travails of a
needless prosecution.26 The Ombudsman and the prosecution service under the control and
supervision of the Secretary of the Department of Justice are inherently the fact-finder,
investigator, hearing officer, judge and jury of the respondent in preliminary investigations.
Obviously, this procedure cannot comply with Ang Tibay, as amplified in GSIS. However, there
is nothing unconstitutional with this procedure because this is merely an Executive function, a
part of the law enforcement process leading to trial in court where the requirements mandated in
Ang Tibay, as amplified in GSIS, will apply. This has been the procedure under the 1935, 1973
and 1987 Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to
preliminary investigations will mean that all past and present preliminary investigations are in
gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when
he filed his Request, is not yet an accused person, and hence cannot demand the full exercise of
the rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a
crime has been committed and was committed by the suspects. Probable cause need not be based
on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well
put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it
requires "less than evidence which would justify . . . conviction." A finding of probable cause
merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable
cause, wealso hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the
NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the investigator alone. If the
evidence on hand already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be determined
in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where
an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly
adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that
the "rights conferred upon accused persons to participate in preliminary investigations
concerning themselves depend upon the provisions of law by which such rights are specifically
secured, rather than upon the phrase ‘due process of law’." This reiterates Justice Jose P.
Laurel’s oft-quoted pronouncement in Hashim v. Boncan29 that "the right to a preliminary
investigation is statutory, not constitutional." In short, the rights of a respondent ina preliminary
investigation are merely statutory rights, not constitutional due process rights. An investigation
to determine probable cause for the filing of an information does not initiate a criminal action so
as to trigger into operation Section 14(2), Article III of the Constitution.30 It is the filing of a
complaint or information in court that initiates a criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in
GSIS, are granted by the Constitution; hence, these rights cannot be taken away by
merelegislation. On the other hand, as repeatedly reiterated by this Court, the right to a
preliminary investigation is merely a statutory right,32 not part of the "fundamental and essential
requirements" of due process as prescribed in Ang Tibay and amplified in GSIS. Thus, a
preliminary investigation can be taken away by legislation. The constitutional right of an accused
to confront the witnesses against him does not apply in preliminary investigations; nor will the
absence of a preliminary investigation be an infringement of his right to confront the witnesses
against him.33 A preliminary investigation may be done away with entirely without infringing
the constitutional right of an accused under the due process clause to a fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to establish the
existence of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to
"substantial evidence," while the establishment of probable cause needs "only more than ‘bare
suspicion,’ or ‘less than evidence which would justify . . . conviction’." In the United States,
from where we borrowed the concept of probable cause,35 the prevailing definition of probable
cause is this:

In dealing with probable cause, however, as the very name implies, we deal with
probabilities.These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act. The standard of
proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of
guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267
U. S. at 161. And this "means less than evidence which would justify condemnation" or
conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United
States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more than bare
suspicion: Probable cause exists where "the facts and circumstances within their [the officers’]
knowledge and of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that" an offense has been or is
being committed. Carroll v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give fair
leeway for enforcing the law in the community’s protection. Because many situations which
confront officers in the course of executing their duties are more or less ambiguous, room must
be allowed for some mistakes on their part. But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is
a practical, non technical conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’
whim or caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where
probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial. A
preliminary investigation is required before the filing of a complaint or information for an
offense where the penalty prescribed by law is at least four years, two months and one
day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of
arrest or a commitment order, if the accused has already been arrested, shall be issued
and that there is a necessity of placing the respondent under immediate custody in order
not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc.
v. Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely
than not, a crime has been committed and there is enough reason to believe that it was committed
by the accused. It need not be based on clear and convincing evidence of guilt, neither on
evidence establishing absolute certainty of guilt. What is merely required is "probability of
guilt." Its determination, too, does not call for the application of rules or standards of proof that a
judgment of conviction requires after trial on the merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that the act or omission complained of constitutes
the very offense charged.
It is also important to stress that the determination of probable cause does not depend on the
validity or merits of a party’s accusation or defense or on the admissibility or veracity of
testimonies presented. As previously discussed, these matters are better ventilated during the trial
proper of the case. As held in Metropolitan Bank & Trust Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would
excite the belief in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was prosecuted. x
x x. The term does not mean "actual or positive cause" nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the offense charged.
Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.
(Bold facing and italicization supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not
depend on the validity or merits of a party’s accusation or defense or on the admissibility or
veracity of testimonies presented" correctly recognizes the doctrine in the United States that the
determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long
as the person making the hearsay statement is credible. In United States v. Ventresca,38 the
United States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that
"the term ‘probable cause’ . . . means less than evidence which would justify condemnation,"
Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may
rest upon evidence which is not legally competent in a criminal trial. Draper v. United States,
358 U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173,
"There is a large difference between the two things tobe proved (guilt and probable cause), as
well as between the tribunals which determine them, and therefore a like difference in the quanta
and modes of proof required to establish them." Thus, hearsay may be the basis for issuance of
the warrant "so long as there . . . [is] a substantial basis for crediting the hearsay." Jones v.
United States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the direct personal observations of the affiant,"
so long as the magistrate is "informed of some of the underlying circumstances" supporting the
affiant’s conclusions and his belief that any informant involved "whose identity need not be
disclosed . . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at 378 U.S.
114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in
a preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest
entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining probable
cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an

accused and the right to a preliminary investigation. To treat them the same will lead toabsurd
and disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in
GSIS. Preliminary investigations are conducted by prosecutors, who are the same officials who
will determine probable cause and prosecute the cases in court. The prosecutor is hardly the
impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an
investigating officer outside of the prosecution service will be necessary if Ang Tibay, as
amplified in GSIS, were to be applied. This will require a new legislation. In the meantime, all
pending criminal cases in all courts will have to be remanded for reinvestigation, to proceed only
when a new law is in place. To require Ang Tibay, as amplified in GSIS, to apply to preliminary
investigation will necessarily change the concept of preliminary investigation as we know it now.
Applying the constitutional due process in Ang Tibay, as amplified in GSIS, to preliminary
investigation will necessarily require the application of the rights of an accused in Section 14(2),
Article III of the 1987 Constitution. This means that the respondent can demand an actual
hearing and the right to cross-examine the witnesses against him, rights which are not afforded at
present toa respondent in a preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending
preliminary investigations but even to those convicted by final judgment and already serving
their sentences. The rule is well-settled that a judicial decision applies retroactively if it has a
beneficial effect on a person convicted by final judgment even if he is already serving his
sentence, provided that he is not a habitual criminal.39 This Court retains its control over a case
"until the full satisfaction of the final judgment conformably with established legal processes."40
Applying Ang Tibay, as amplified in GSIS, to preliminary investigations will result in thousands
of prisoners, convicted by final judgment, being set free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsman’s grave
abuse of its discretion preceding the finding of a probable cause to indict him." Restated bluntly,
Justice Velasco’s dissent would like this Court to conclude that the mere filing of the present
Petition for Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request should
have, by itself, voided all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s
Request, the Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date
that Sen. Estrada filed the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-
13-0313 and OMB-C-C-13-0397 that furnishedSen. Estrada with the counter-affidavits of Ruby
Tuason, Dennis Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria
Buenaventura, and AlexisSevidal, and directed him to comment within a non-extendible period
of five days from receipt of said Order. Sen. Estrada did not file any comment, as noted in the 4
June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion
for Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict
Sen. Estrada and his corespondents with one count of plunder and 11 counts of violation of
Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that
"[t]his Office, in fact, held in abeyance the disposition of motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much
less a motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen.
Estrada immediately proceeded to file this Petition for Certiorari before this Court. Sen.
Estrada’s resort to a petitionfor certiorari before this Court stands in stark contrast to his filing of
his 7 April 2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution finding
probable cause. The present Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual
and legal errors. Sen. Estrada, however, failed to present a compelling reason that the present
Petition falls under the exceptions41 to the general rule that the filing of a motion for
reconsideration is required prior to the filing of a petition for certiorari. This Court has reiterated
in numerous decisions that a motion for reconsideration is mandatory before the filing of a
petition for certiorari.42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the
present Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to emphasize
that, despite the variance in the quanta of evidence required, a uniform observance of the
singular concept of due process is indispensable in all proceedings."

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join
him in his dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43
wherein we stated that "[t]he law can no longer help one who had been given ample opportunity
to be heard but who did not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the
Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable
for discourtesy in the course of her official functions and imposed on her the penalty of
reprimand. Petitioner filed a motion for reconsideration of the decision on the ground that she
was not furnished copies of the affidavits of the private respondent’s witnesses. The Ombudsman
subsequently ordered that petitioner be furnished with copies of the counter-affidavits of private
respondent’s witnesses, and that petitioner should "file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances." Petitioner received
copies of the affidavits, and simply filed a manifestation where she maintained that her receipt of
the affidavits did not alter the deprivation of her right to due process or cure the irregularity in
the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe
Ombudsman rendered a decision against her. We disposed of petitioner’s deprivation of due
process claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to
exhaust all the administrative remedies available to her before the Ombudsman. This ruling is
legallycorrect as exhaustion of administrative remedies is a requisite for the filing of a petition
for certiorari. Other than this legal significance, however, the ruling necessarily carries the direct
and immediate implication that the petitioner has been granted the opportunity to be heard and
has refused to avail of this opportunity; hence, she cannot claim denial of due process. In the
words of the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut
the affidavits submitted by private respondent. . . and had a speedy and adequate administrative
remedy but she failed to avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and
distinct concepts, exhaustion of administrative remedies and due process embody linked and
related principles. The "exhaustion" principle applies when the ruling court or tribunal is not
given the opportunity tore-examine its findings and conclusions because of an available
opportunity that a party seeking recourse against the court or the tribunal’s ruling omitted to take.
Under the concept of "due process," on the other hand, a violation occurs when a court or
tribunal rules against a party without giving him orher the opportunity to be heard. Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while due process
is considered from the point of view of the litigating party against whom a ruling was made. The
commonality they share is in the same"opportunity" that underlies both. In the context of the
present case, the available opportunity to consider and appreciate the petitioner’s counter-
statement offacts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at all at the
Ombudsman level. At the same time, the petitioner – who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondent’s witnesses – was not denied and cannot
now claim denial of due process because she did not take advantage of the opportunity opened to
her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process
grounds (i.e., for the private respondent’s failure to furnish her copies of the affidavits of
witnesses) and on questions relating to the appreciation of the evidence on record. The
Ombudsman acted on this motion by issuing its Order of January 17, 2003 belatedly furnishing
her with copies of the private respondent’s witnesses, together with the "directive to file, within
ten (10) days from receipt of this Order, such pleading which she may deem fit under the
circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to
file a "Manifestation" where she took the position that "The order of the Ombudsman dated 17
January 2003 supplying her with the affidavits of the complainant does not cure the 04
November 2002 order," and on this basis prayed that the Ombudsman’s decision "be
reconsidered and the complaint dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration
dated 27 January 2003 and prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the Ombudsman
fully discussed in this Order the due process significance of the petitioner’s failure to adequately
respond to the belatedly-furnished affidavits. The Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the
affidavits, which she claims she has not received. Furthermore, the respondent has been given
the opportunity to present her side relative thereto, however, she chose not to submit
countervailing evidence orargument. The respondent, therefore (sic), cannot claim denial of due
process for purposes of assailing the Decision issued in the present case. On this score, the
Supreme Court held in the case of People v. Acot, 232 SCRA 406, that "a party cannot feign
denial of due process where he had the opportunity to present his side". This becomes all the
more important since, as correctly pointed out by the complainant, the decision issued in the
present case is deemed final and unappealable pursuant to Section 27 of Republic Act 6770, and
Section 7, Rule III of Administrative Order No. 07. Despite the clear provisions of the law and
the rules, the respondent herein was given the opportunity not normally accorded, to present her
side, but she opted not to do so which is evidently fatal to her cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one,
not only for her failure to exhaust her available administrative remedy, but also on due process
grounds. The law can no longer help one who had been given ample opportunity to be heard but
who did not take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of
Sen. Estrada’s co-respondents were furnished to him beforethe Ombudsman rendered her 4 June
2014 Joint Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a
decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v.
Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this
Court ruled that "the inordinate delay in terminating the preliminary investigation and filing the
information [by the Tanodbayan] in the present case is violative of the constitutionally
guaranteed right of the petitioner to due process and to a speedy disposition of the cases against
him."48 The Tanod bayan took almost three years to terminate the preliminary investigation,
despite Presidential Decree No. 911’s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte, where the
petitioners were merely asked to comment and were not asked to file counter-affidavits as isthe
proper procedure in a preliminary investigation. Moreover, in Duterte, the Ombudsman took four
years to terminate its preliminary investigation.
As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen.
Estrada’s present Petition for Certiorari is premature for lack of filing of a motion for
reconsideration before the Ombudsman. When the Ombudsman gave Sen. Estrada copies of the
counter-affidavits and even waited for the lapse of the given period for the filing of his comment,
Sen. Estrada failed to avail of the opportunity to be heard due to his own fault. Thus, Sen.
Estrada’s failure cannot in any way be construed as violation of due process by the Ombudsman,
much less of grave abuse of discretion. Sen. Estrada has not filed any comment, and still chooses
not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be
summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May
2014, Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in
OMB-C-C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in
the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49
(Emphasis supplied)

Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However,
in this Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint
Order denying his Request, and that such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section
4 of the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various
pieces of evidence which Senator Estrada was not furnished with – hence, depriving him of the
opportunity to controvert the same – were heavily considered by the Ombudsman in finding
probable cause to charge him with Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings," pursuant to the right of a respondent "to examine the evidence submitted by the
complainant which he may not have been furnished" (Section 3[b], Rule 112 of the Rules of
Court), and to "have access to the evidence on record" (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the
law’s vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an
Order dated 27 March 2014, unceremoniously denied the request on the ground that "there is no
provision under this Office’s Rules of Procedure which entitles respondent to be furnished all the
filings by the other parties x x x x." (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which
were eventually made the bases of the Ombudsman’s finding of probable cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint
Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the
Ombudsman the violation of his right to due process, the same issue he is raising in this petition.
In the verification and certification of non-forum shopping attached to his petition docketed as
G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the pendency of the present
petition, as well as those before the Sandiganbayan for the determination of the existence of
probable cause. In his petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned the
Ombudsman’s 27 March 2014 Joint Order denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable
cause, which he maintains is without legal or factual basis, but also thatsuch finding of probable
cause was premised on evidence not disclosed tohim, including those subject of his Request to be
Furnished with Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following
documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages
Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio, published on 06
March 2014, none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT

RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04
JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily
limited the filing of Sen. Estrada’s comment to the voluminous documents comprisingthe
documents it furnished Sen. Estrada to a "non-extendible" period offive (5) days, making it
virtually impossible for Sen. Estrada to adequately study the charges leveled against him and
intelligently respond to them. The Joint Order also failed to disclose the existence of other
counter-affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits.51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause
was the "sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7
April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014
Joint Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution,
Sen. Estrada did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held
in abeyance the disposition of the motions for reconsideration in this proceeding in light of its
grant to [Sen. Estrada] a period of five days from receipt of the 7 May 2014 [Joint] Order to
formally respond to the abovenamed co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis
pendentia.52 To determine whether a party violated the rule against forum shopping, the most
important factor to ask is whether the elements of litis pendentia are present, or whether a final
judgment in one case will amount to res judicatain another.53 Undergirding the principle of litis
pendentia is the theory that a party isnot allowed to vex another more than once regarding the
same subject matter and for the same cause of action. This theory is founded on the public policy
that the same matter should not be the subject of controversy in court more than once in order
that possible conflicting judgments may be avoided, for the sake of the stability in the rights and
status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that
– in the usual course and because of its nature and purpose – is not covered by the rule on forum
shopping. The exception from the forum shopping rule, however, is true only where a petition for
certiorari is properly or regularly invoked in the usual course; the exception does not apply when
the relief sought, through a petition for certiorari, is still pending with or has as yet to be decided
by the respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion
for reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the
present case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised
Rules of Court which provides that the availability of a remedy in the ordinary course of law
precludes the filing of a petition for certiorari; under this rule, the petition’s dismissal is the
necessary consequence if recourse to Rule 65 is prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting
rulings, or at the very least, to complicated situations, between the RTC and the Court of
Appeals. An extreme possible result is for the appellate court to confirm that the RTC decision is
meritorious, yet the RTC may at the same time reconsider its ruling and recall its order of
dismissal. In this eventuality, the result is the affirmation of the decision that the court a quo has
backtracked on. Other permutations depending on the rulings of the two courts and the timing of
these rulings are possible. In every case, our justice system suffers as this kind of sharp practice
opens the system to the possibility of manipulation; to uncertainties when conflict of rulings
arise; and at least to vexation for complications other than conflict of rulings. Thus, it matters not
that ultimately the Court of Appeals may completely agree with the RTC; what the rule on forum
shopping addresses are the possibility and the actuality of its harmful effects on our judicial
system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due
process by the Ombudsman even as his Motion for Reconsideration raising the very same issue
remained pending with the Ombudsman. This is plain and simple forum shopping, warranting
outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits
and documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of
Criminal Procedure, and Section 4, Rule II of the Rules of Procedure of the Office of the
Ombudsman, Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the
Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish
the respondent with copies of the affidavits of the complainant and affidavits of his supporting
witnesses. Neither of these Rules require the investigating officer to furnish the respondent with
copies of the affidavits of his co-respondents. The right of the respondent is only "to examine the
evidence submitted by the complainant," as expressly stated in Section 3(b), Rule 112 of the
Revised Rules of Criminal Procedure. This Court has unequivocally ruled in Paderanga that
"Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence
submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without
the right to examine or cross-examine." Moreover, Section 4 (a, b and c) of Rule II of the
Ombudsman’s Rule of Procedure, read together, only require the investigating officer to furnish
the respondent with copies of the affidavits of the complainant and his supporting
witnesses.1âwphi1 There is no law or rule requiring the investigating officer to furnish the
respondent with copies of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen.
Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named,
as well as the counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order,
the Ombudsman even held in abeyancethe disposition of the motions for reconsideration because
the Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to
formally respond to the claims made by his co-respondents. The Ombudsman faithfully complied
with the existing Rules on preliminary investigation and even accommodated Sen. Estrada
beyond what the Rules required. Thus, the Ombudsman could not be faulted with grave abuse of
discretion. Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of
grave abuse of discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are
not applicable to preliminary investigations which are creations of statutory law giving rise to
mere statutory rights. A law can abolish preliminary investigations without running afoul with
the constitutional requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS.
The present procedures for preliminary investigations do not comply, and were never intended to
comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with
finality rights and obligations of parties, while administrative investigations governed by Ang
Tibay, as amplified in GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial
evidencefor a decision against the respondent in the administrative case.In preliminary
investigations, only likelihood or probability of guiltis required. To apply Ang Tibay,as
amplified in GSIS,to preliminary investigations will change the quantum of evidence required to
establish probable cause. The respondent in an administrative case governed by Ang Tibay,as
amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses against
him. In preliminary investigations, the respondent has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer
must be impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time.
In preliminary investigations, the same public officer may be the investigator and hearing officer
at the same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now
declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential
requirements in preliminary investigations will render all past and present preliminary
investigations invalid for violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the country. No
preliminary investigation can proceeduntil a new law designates a public officer, outside of the
prosecution service, to determine probable cause. Moreover, those serving sentences by final
judgment would have to be released from prison because their conviction violated constitutional
due process. Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order
in OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition. He
should have filed a Motion for R econsideration, in the same manner that he filed a Motion for
Reconsideration of the 15 May 2014 Order denying his motion to suspend proceedings. The
unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law against the acts of the
public respondent.56 The plain, speedy and adequate remedy expressly provided by law is a
Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada's
failure to file a Motion for Reconsideration renders this Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding probable
cause. While his Motion for Reconsideration of the 28 March 2014 Joint Resolution was
pending, Sen. Estrada did not wait for the resolution of the Ombudsman and instead proceeded to
file the present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June 2014 and
specifically addressed the issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's
present Petition for Certiorari is not only premature, it also constitutes forum shopping.
WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE
GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION,
Respondents.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was
charged administratively and eventually dismissed from the service. The employee’s personal
files stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside
the Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by
petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service
Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct
prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713
and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and
also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the
"Mamamayan Muna Hindi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent
CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent
through a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang,
Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC
Central Office. Following office practice in which documents marked "Confidential" are left
unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson
David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused gov’t employee having a
pending case in the csc. I honestly think this is a violation of law and unfair to others and your
office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He
is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many
who have pending cases in the Csc. The justice in our govt system will not be served if this will
continue. Please investigate this anomaly because our perception of your clean and good office is
being tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically
"to back up all the files in the computers found in the Mamamayan Muna (PALD) and
Legal divisions."4 After some briefing, the team proceeded at once to the CSC-ROIV office at
Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the
officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and
Director III Engelbert Unite (Director Unite) of Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services
Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite
who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to
petitioner and the head of LSD, who were both out of the office at the time, informing them of
the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text
messages received by petitioner read:
 "Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD
per instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the
memo via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that
he will just get a lawyer. Another text message received by petitioner from PALD staff also
reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto
natin."6 At around 10:00 p.m. of the same day, the investigating team finished their task. The
next day, all the computers in the PALD were sealed and secured for the purpose of preserving
all the files stored therein. Several diskettes containing the back-up files sourced from the hard
disk of PALD and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was found that most of
the files in the 17 diskettes containing files copied from the computer assigned to and being used
by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters7 in
connection with administrative cases in the CSC and other tribunals. On the basis of this
finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring
the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit
within five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David
made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or
connected with administrative cases that may broadly be lumped as pending either in the
CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note
that most of these draft pleadings are for and on behalves of parties, who are facing charges as
respondents in administrative cases. This gives rise to the inference that the one who prepared
them was knowingly, deliberately and willfully aiding and advancing interests adverse and
inimical to the interest of the CSC as the central personnel agency of the government tasked to
discipline misfeasance and malfeasance in the government service. The number of pleadings so
prepared further demonstrates that such person is not merely engaged in an isolated practice but
pursues it with seeming regularity. It would also be the height of naivete or credulity, and
certainly against common human experience, to believe that the person concerned had engaged
in this customary practice without any consideration, and in fact, one of the retrieved files (item
13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained
from the computer assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the computer of origin was within
his direct control and disposition.9
Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he
"lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing
expedition" when they unlawfully copied and printed personal files in his computer, and
subsequently asking him to submit his comment which violated his right against self-
incrimination. He asserted that he had protested the unlawful taking of his computer done while
he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo
that the files in his computer were his personal files and those of his sister, relatives, friends and
some associates and that he is not authorizing their sealing, copying, duplicating and printing as
these would violate his constitutional right to privacy and protection against self-incrimination
and warrantless search and seizure. He pointed out that though government property, the
temporary use and ownership of the computer issued under a Memorandum of Receipt
(MR) is ceded to the employee who may exercise all attributes of ownership, including its
use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable
as it failed to comply with the requirements of a formal complaint under the Uniform Rules on
Administrative Cases in the Civil Service (URACC). In view of the illegal search, the
files/documents copied from his computer without his consent is thus inadmissible as evidence,
being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against
the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees). Petitioner was directed to submit his answer
under oath within five days from notice and indicate whether he elects a formal investigation.
Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90
days preventive suspension effective immediately upon receipt of the resolution. Petitioner
received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing
the formal charge as without basis having proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated
that he never aided any people with pending cases at the CSC and alleged that those files found
in his computer were prepared not by him but by certain persons whom he permitted, at one time
or another, to make use of his computer out of close association or friendship. Attached to the
motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at
petitioner’s CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested
that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed
legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint he filed before the
Ombudsman against Director Buensalida, whom petitioner believes had instigated this
administrative case. He also prayed for the lifting of the preventive suspension imposed on him.
In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The
CSC resolved to treat the said motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of
discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner
lodged an administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV)
before the Office of the Ombudsman, and a separate complaint for disbarment against Director
Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent
Motion for the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-
hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with
warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing
conference shall entitle the prosecution to proceed with the formal investigation ex-parte.16
Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the resolution of his petition by the CA. The
CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with
similar warning on the consequences of petitioner and/or his counsel’s non-appearance.17 This
prompted petitioner to file another motion in the CA, to cite the respondents, including the
hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set
aside the denial of his motion to defer the proceedings and to inhibit the designated hearing
officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the
investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded
ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo,
a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to
the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty
of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely,
disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil
service eligibilities and bar from taking future civil service examinations.21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government
as employer invades the private files of an employee stored in the computer assigned to him for
his official use, in the course of initial investigation of possible misconduct committed by said
employee and without the latter’s consent or participation. The CSC thus turned to relevant
rulings of the United States Supreme Court, and cited the leading case of O’Connor v. Ortega22
as authority for the view that government agencies, in their capacity as employers, rather than
law enforcers, could validly conduct search and seizure in the governmental workplace without
meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited
by the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the
federal agency’s computer use policy foreclosed any inference of reasonable expectation of
privacy on the part of its employees. Though the Court therein recognized that such policy did
not, at the same time, erode the respondent’s legitimate expectation of privacy in the office in
which the computer was installed, still, the warrantless search of the employee’s office was
upheld as valid because a government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided the search is reasonable in its
inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office
in view of the CSC computer use policy which unequivocally declared that a CSC employee
cannot assert any privacy right to a computer assigned to him. Even assuming that there was no
such administrative policy, the CSC was of the view that the search of petitioner’s computer
successfully passed the test of reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its
capacity as government employer and that it was undertaken in connection with an investigation
involving work-related misconduct, which exempts it from the warrant requirement under
the Constitution. With the matter of admissibility of the evidence having been resolved, the
CSC then ruled that the totality of evidence adequately supports the charges of grave
misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s dismissal from
the service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution
dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule
43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No.
07180025 which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding
no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1)
petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC
after a fact-finding investigation was conducted and the results thereof yielded a prima facie case
against him; (2) it could not be said that in ordering the back-up of files in petitioner’s computer
and later confiscating the same, Chairperson David had encroached on the authority of a judge in
view of the CSC computer policy declaring the computers as government property and that
employee-users thereof have no reasonable expectation of privacy in anything they create, store,
send, or receive on the computer system; and (3) there is nothing contemptuous in CSC’s act of
proceeding with the formal investigation as there was no restraining order or injunction issued by
the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal
arguing that –

I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd
PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN
[AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-
0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED

PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO
PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A
MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY
RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION
CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS
CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED
TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED
JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING
THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION
LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE
ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL
FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s.
2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND
FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL

OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED
AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420
DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10,
 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO
RESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer
and the copying of his personal files without his knowledge and consent, alleged as a
transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable search and seizure under Section 2, Article III of
the 1987 Constitution,27 which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application
for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the
light of pronouncements in another jurisdiction. As the Court declared in People v. Marti29 :

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.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents
in electronically recording a conversation made by petitioner in an enclosed public telephone
booth violated his right to privacy and constituted a "search and seizure". Because the petitioner
had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone
call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of
Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has exhibited an actual (subjective)
expectation of privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights
with regard to an office at union headquarters that he shared with other union officials, even as
the latter or their guests could enter the office. The Court thus "recognized that employees may
have a reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the
1987 case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by
a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials
investigating charges of mismanagement of the psychiatric residency program, sexual
harassment of female hospital employees and other irregularities involving his private patients
under the state medical aid program, searched his office and seized personal items from his desk
and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose
Fourth Amendment rights merely because they work for the government instead of a private
employer."35 A plurality of four Justices concurred that the correct analysis has two steps: first,
because "some government offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable", a court must consider "[t]he operational realities of the
workplace" in order to determine whether an employee’s Fourth Amendment rights are
implicated; and next, where an employee has a legitimate privacy expectation, an employer’s
intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace,

O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like
similar expectations of employees in the private sector, may be reduced by virtue of actual office
practices and procedures, or by legitimate regulation. x x x The employee’s expectation of
privacy must be assessed in the context of the employment relation. An office is seldom a private
enclave free from entry by supervisors, other employees, and business and personal invitees.
Instead, in many cases offices are continually entered by fellow employees and other visitors
during the workday for conferences, consultations, and other work-related visits. Simply put, it is
the nature of government offices that others – such as fellow employees, supervisors, consensual
visitors, and the general public – may have frequent access to an individual’s office. We agree
with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the
government does not disappear merely because the government has the right to make reasonable
intrusions in its capacity as employer," x x x but some government offices may be so open to
fellow employees or the public that no expectation of privacy is reasonable. x x x Given the
great variety of work environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr.
Ortega’s Fourth Amendment rights are implicated only if the conduct of the hospital officials
infringed "an expectation of privacy that society is prepared to consider as reasonable." Given
the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with
any other employees, kept personal correspondence and other private items in his own office
while those work-related files (on physicians in residency training) were stored outside his
office, and there being no evidence that the hospital had established any reasonable regulation or
policy discouraging employees from storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not create any expectation of privacy where
it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation
of privacy at least in his desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was
reasonable, the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the
Court of Appeals simply concluded without discussion that the "search…was not a reasonable
search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to
searches conducted by [public employers] is only to begin the inquiry into the standards
governing such searches…[W]hat is reasonable depends on the context within which a search
takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable
to the search. A determination of the standard of reasonableness applicable to a particular class
of searches requires "balanc[ing] the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental interests alleged to
justify the intrusion." x x x In the case of searches conducted by a public employer, we must
balance the invasion of the employees’ legitimate expectations of privacy against the
government’s need for supervision, control, and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no reason to be familiar
with such procedures, is simply unreasonable. In contrast to other circumstances in which we
have required warrants, supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely incident to
the primary business of the agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the "common-sense realization that government offices could
not function if every employment decision became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient
and proper operation of the workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers were required to have probable
cause before they entered an employee’s desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the
criminal investigatory context, much meaning when the purpose of a search is to retrieve a file
for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine
inventory conducted by public employers for the purpose of securing state property. x x x To
ensure the efficient and proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-

related employee misconduct. Even when employers conduct an investigation, they have an
interest substantially different from "the normal need for law enforcement." x x x Public
employers have an interest in ensuring that their agencies operate in an effective and efficient
manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence,
mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases,
public employees are entrusted with tremendous responsibility, and the consequences of their
misconduct or incompetence to both the agency and the public interest can be severe. In contrast
to law enforcement officials, therefore, public employers are not enforcers of the criminal law;
instead, public employers have a direct and overriding interest in ensuring that the work of the
agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would impose intolerable burdens on
public employers. The delay in correcting the employee misconduct caused by the need for
probable cause rather than reasonable suspicion will be translated into tangible and often
irreparable damage to the agency’s work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement
make the…probable-cause requirement impracticable," x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard
of reasonableness will neither unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the
privacy of public employees. We hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government employees for noninvestigatory,
work-related purposes, as well as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the intrusion must be
reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider ‘whether the…action was justified at its inception,’ x x x ; second, one must
determine whether the search as actually conducted ‘was reasonably related in scope to the
circumstances which justified the interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its

inception" when there are reasonable grounds for suspecting that the search will turn up
evidence that the employee is guilty of work-related misconduct, or that the search is
necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x
The search will be permissible in its scope when "the measures adopted are reasonably
related to the objectives of the search and not excessively intrusive in light of …the nature
of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to
the character of the search and neither was there any finding made as to the scope of the search
that was undertaken, the case was remanded to said court for the determination of the
justification for the search and seizure, and evaluation of the reasonableness of both the inception
of the search and its scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving
public employees for work-related reasons. The Court thus laid down a balancing test under
which government interests are weighed against the employee’s reasonable expectation of
privacy. This reasonableness test implicates neither probable cause nor the warrant requirement,
which are related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the
workplace. One of these cases involved a government employer’s search of an office computer,
United States v. Mark L. Simons41 where the defendant Simons, an employee of a division of the
Central Intelligence Agency (CIA), was convicted of receiving and possessing materials
containing child pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access. The agency had instituted a policy on computer use
stating that employees were to use the Internet for official government business only and that
accessing unlawful material was specifically prohibited. The policy also stated that users shall
understand that the agency will periodically audit, inspect, and/or monitor the user’s Internet
access as deemed appropriate. CIA agents instructed its contractor for the management of the
agency’s computer network, upon initial discovery of prohibited internet activity originating
from Simons’ computer, to conduct a remote monitoring and examination of Simons’ computer.
After confirming that Simons had indeed downloaded pictures that were pornographic in nature,
all the files on the hard drive of Simon’s computer were copied from a remote work station. Days
later, the contractor’s representative finally entered Simon’s office, removed the original hard
drive on Simon’s computer, replaced it with a copy, and gave the original to the agency security
officer. Thereafter, the agency secured warrants and searched Simons’ office in the evening
when Simons was not around. The search team copied the contents of Simons’ computer;
computer diskettes found in Simons’ desk drawer; computer files stored on the zip drive or on
zip drive diskettes; videotapes; and various documents, including personal correspondence. At
his trial, Simons moved to suppress these evidence, arguing that the searches of his office and
computer violated his Fourth Amendment rights. After a hearing, the district court denied the
motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’
computer and office did not violate his Fourth Amendment rights and the first search warrant
was valid. It held that the search remains valid under the O’Connor exception to the warrant
requirement because evidence of the crime was discovered in the course of an otherwise proper
administrative inspection. Simons’ violation of the agency’s Internet policy happened also to be
a violation of criminal law; this does not mean that said employer lost the capacity and interests
of an employer. The warrantless entry into Simons’ office was reasonable under the Fourth
Amendment standard announced in O’Connor because at the inception of the search, the
employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of
misconduct, as the employer was already aware that Simons had misused his Internet access to
download over a thousand pornographic images. The retrieval of the hard drive was reasonably
related to the objective of the search, and the search was not excessively intrusive. Thus, while
Simons had a reasonable expectation of privacy in his office, he did not have such legitimate
expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove
that he had a legitimate expectation of privacy in the place searched or the item seized. x x x
And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective
expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate
expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that
Simons’ Fourth Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive
from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits
of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS
would "audit, inspect, and/or monitor" employees’ use of the Internet, including all file
transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This
policy placed employees on notice that they could not reasonably expect that their Internet
activity would be private. Therefore, regardless of whether Simons subjectively believed that the
files he transferred from the Internet were private, such a belief was not objectively reasonable
after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS’
actions in remotely searching and seizing the computer files Simons downloaded from the
Internet did not violate the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his
office. x x x Here, Simons has shown that he had an office that he did not share. As noted above,
the operational realities of Simons’ workplace may have diminished his legitimate privacy
expectations. However, there is no evidence in the record of any workplace practices,
procedures, or regulations that had such an effect. We therefore conclude that, on this record,
Simons possessed a legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employee’s supervisor entering the employee’s
government office and retrieving a piece of government equipment in which the employee had
absolutely no expectation of privacy – equipment that the employer knew contained evidence of
crimes committed by the employee in the employee’s office. This situation may be contrasted
with one in which the criminal acts of a government employee were unrelated to his
employment. Here, there was a conjunction of the conduct that violated the employer’s policy
and the conduct that violated the criminal law. We consider that FBIS’ intrusion into Simons’
office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42
(Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates
for public office, students of secondary and tertiary schools, officers and employees of public
and private offices, and persons charged before the prosecutor’s office with certain offenses,
have also recognized the fact that there may be such legitimate intrusion of privacy in the
workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the
analysis of the privacy expectation of the employees and the reasonableness of drug testing
requirement. The employees’ privacy interest in an office is to a large extent circumscribed by
the company’s work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy has been
upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we
now address the following questions: (1) Did petitioner have a reasonable expectation of privacy
in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the
copying of the contents of the hard drive on petitioner’s computer reasonable in its inception and
scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the
employee when it was seized; and (3) whether the employee took actions to maintain his privacy
in the item." These factors are relevant to both the subjective and objective prongs of the
reasonableness inquiry, and we consider the two questions together.44 Thus, where the employee
used a password on his computer, did not share his office with co-workers and kept the same
locked, he had a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his
personal files. Petitioner did not allege that he had a separate enclosed office which he did not
share with anyone, or that his office was always locked and not open to other employees or
visitors. Neither did he allege that he used passwords or adopted any means to prevent other
employees from accessing his computer files. On the contrary, he submits that being in the
public assistance office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed to use his computer which
to him seemed a trivial request. He described his office as "full of people, his friends, unknown
people" and that in the past 22 years he had been discharging his functions at the PALD, he is
"personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge
of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of
name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in
the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner
had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his
computer as he claims, such is negated by the presence of policy regulating the use of office
computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and
may be used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the

performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given
time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not
have an expectation of privacy in anything they create, store, send, or receive on the
computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and
assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to
monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal

property or for the exclusive use of a User to whom a memorandum of receipt (MR) has
 been issued. It can be shared or operated by other users. However, he is accountable
therefor and must insure its care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their
passwords for access to the computer system. Individual passwords shall not be printed,
stored online, or given to others. Users shall be responsible for all transactions made
using their passwords. No User may access the computer system with another User’s
password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer
system or to encode particular files or messages does not imply that Users have an
expectation of privacy in the material they create or receive on the computer system. The
Civil Service Commission has global passwords that permit access to all materials stored
on its networked computer system regardless of whether those materials have been
encoded with a particular User’s password. Only members of the Commission shall
authorize the application of the said global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have
no expectation of privacy in anything they create, store, send or receive on the office computers,
and that the CSC may monitor the use of the computer resources using both automated or human
means. This implies that on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy
policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university
employee has not shown that he had a reasonable expectation of privacy in his computer files
where the university’s computer policy, the computer user is informed not to expect privacy if
the university has a legitimate reason to conduct a search. The user is specifically told that
computer files, including e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of
Fourth Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of
work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson
David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi
Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC.
Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office
IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding
parties with pending cases, all done during office hours and involved the use of government
properties;

9. That said text messages were not investigated for lack of any verifiable leads and details
sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV
and its effect on the integrity of the Commission, I decided to form a team of Central Office staff
to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and
Legal Division;

x x x x50

A search by a government employer of an employee’s office is justified at inception when there

are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of
work-related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth
Circuit, it was held that where a government agency’s computer use policy prohibited electronic
messages with pornographic content and in addition expressly provided that employees do not
have any personal privacy rights regarding their use of the agency information systems and
technology, the government employee had no legitimate expectation of privacy as to the use and
contents of his office computer, and therefore evidence found during warrantless search of the
computer was admissible in prosecution for child pornography. In that case, the defendant
employee’s computer hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was inaccessible and had copied and
distributed non-work-related e-mail messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the prohibited websites, in
contravention of the express policy of the agency, his computer tower and floppy disks were
taken and examined. A formal administrative investigation ensued and later search warrants were
secured by the police department. The initial remote search of the hard drive of petitioner’s
computer, as well as the subsequent warrantless searches was held as valid under the O’Connor
ruling that a public employer can investigate work-related misconduct so long as any search is
justified at inception and is reasonably related in scope to the circumstances that justified it in the
first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its
inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its
actions, consistent as it were with the guidelines established by O’Connor:
Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its
capacity as a government employer and that it was undertaken in connection with an
investigation involving a work-related misconduct, one of the circumstances exempted from
the warrant requirement. At the inception of the search, a complaint was received recounting that
a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases
with the said regional office or in the Commission. The nature of the imputation was serious,
as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged
in the practice of "lawyering" for parties with pending cases before the Commission would be a
highly repugnant scenario, then such a case would have shattering repercussions. It would
undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-
judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial
and objective dispenser of administrative justice. It is settled that a court or an administrative
tribunal must not only be actually impartial but must be seen to be so, otherwise the general
public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only
to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving the computer resources in
the concerned regional office. That it was the computers that were subjected to the search
was justified since these furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is,
they could easily be destroyed at a click of a button, necessitated drastic and immediate
action. Pointedly, to impose the need to comply with the probable cause requirement would
invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an
open and transparent manner. Officials and some employees of the regional office, who
happened to be in the vicinity, were on hand to observe the process until its completion. In
addition, the respondent himself was duly notified, through text messaging, of the search and the
concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His
other argument invoking the privacy of communication and correspondence under Section 3(1),
Article III of the 1987 Constitution is also untenable considering the recognition accorded to
certain legitimate intrusions into the privacy of employees in the government workplace under
the aforecited authorities. We likewise find no merit in his contention that O’Connor and Simons
are not relevant because the present case does not involve a criminal offense like child
pornography. As already mentioned, the search of petitioner’s computer was justified there being
reasonable ground for suspecting that the files stored therein would yield incriminating evidence
relevant to the investigation being conducted by CSC as government employer of such
misconduct subject of the anonymous complaint. This situation clearly falls under the exception
to the warrantless requirement in administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty.
Morales) who was investigated on the basis of an anonymous letter alleging that he was
consuming his working hours filing and attending to personal cases, using office supplies,
equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team
was able to access Atty. Morales’ personal computer and print two documents stored in its hard
drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of
Manila, both in the name of another lawyer. Atty. Morales’ computer was seized and taken in
custody of the OCA but was later ordered released on his motion, but with order to the MISO to
first retrieve the files stored therein. The OCA disagreed with the report of the Investigating
Judge that there was no evidence to support the charge against Atty. Morales as no one from the
OCC personnel who were interviewed would give a categorical and positive statement affirming
the charges against Atty. Morales, along with other court personnel also charged in the same
case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct.
The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards
required of every court employee, the Court cannot use the evidence obtained from his personal
computer against him for it violated his constitutional right against unreasonable searches and
seizures. The Court found no evidence to support the claim of OCA that they were able to obtain
the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation, questioning the
validity of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which
involved a personal computer of a court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued computer, hence government property
the use of which the CSC has absolute right to regulate and monitor. Such relationship of the
petitioner with the item seized (office computer) and other relevant factors and circumstances
under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S.
2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of
privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are
admissible in the administrative case against him, we now proceed to the issue of whether the
CSC was correct in finding the petitioner guilty of the charges and dismissing him from the
service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are
accorded not only respect but even finality if such findings are supported by substantial
evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind
might accept as adequate to support a conclusion, even if other equally reasonable minds might
conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal
pleadings and documents stored in his office computer, as well as the sworn affidavits and
testimonies of the witnesses it presented during the formal investigation. According to the CSC,
these documents were confirmed to be similar or exactly the same content-wise with those on the
case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission
Proper. There were also substantially similar copies of those pleadings filed with the CA and
duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to
the effect that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting their
pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold
that the CSC’s factual finding regarding the authorship of the subject pleadings and misuse of the
office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings
responding to the orders, decisions or resolutions of these offices or directly in opposition to
them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This
indicates that the author thereof knowingly and willingly participated in the promotion or
advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the
appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang
bayad mo," lends plausibility to an inference that the preparation or drafting of the legal
pleadings was pursued with less than a laudable motivation. Whoever was responsible for these
documents was simply doing the same for the money – a "legal mercenary" selling or purveying
his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said
computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified
seeing a written copy of one of the pleadings found in the case records lying on the table of the
respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of
Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining
the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the
documents were the personal files of some of his friends, including one Attorney Ponciano
Solosa, who incidentally served as his counsel of record during the formal investigation of this
case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this
contention of the respondent was directly rebutted by the prosecution witness, Reyes, who
testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer
assigned to the respondent. Reyes more particularly stated that she worked in close proximity
with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the
computer in question. Further, Atty. Solosa himself was never presented during the formal
investigation to confirm his sworn statement such that the same constitutes self-serving evidence
unworthy of weight and credence. The same is true with the other supporting affidavits, which
Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the
fact that he was unlawfully authorizing private persons to use the computer assigned to him for
official purpose, not only once but several times gauging by the number of pleadings, for ends
not in conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct
for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a
private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty.
Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed.
Why would such a statement appear in a legal pleading stored in the computer assigned to the
respondent, unless he had something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified
complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given
due course unless it is in writing and subscribed and sworn to by the complainant. However, in
cases initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to
have been initiated by the CSC itself when Chairperson David, after a spot inspection and search
of the files stored in the hard drive of computers in the two divisions adverted to in the
anonymous letter -- as part of the disciplining authority’s own fact-finding investigation and
information-gathering -- found a prima facie case against the petitioner who was then directed to
file his comment. As this Court held in Civil Service Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8,
Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be
initiated against a civil service officer or employee by the appropriate disciplining authority,
even without being subscribed and sworn to. Considering that the CSC, as the disciplining
authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired.
(Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2 q2 002 (CUP), the same
deserves scant consideration. The alleged infirmity due to the said memorandum order having
been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the
dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson
David in her Reply to the Addendum to Commissioner Buenaflor’s previous memo expressing
his dissent to the actions and disposition of the Commission in this case. According to
Chairperson David, said memorandum order was in fact exhaustively discussed, provision by
provision in the January 23, 2002 Commission Meeting, attended by her and former
Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no
need to issue a Resolution for the purpose and further because the CUP being for internal use of
the Commission, the practice had been to issue a memorandum order.58 Moreover, being an
administrative rule that is merely internal in nature, or which regulates only the personnel of the
CSC and not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s
ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the
imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties,
pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October
11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No.
98224 are AFFIRMED.

With costs against the petitioner.

*STANDARD of legal searches

- Justified

- search is valid from the start.

SO ORDERED.

G.R. No. L-4254             September 26, 1951

BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for
respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly
set forth in that decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the latter's
regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army
Counter Intelligence Corps. Later he was handed to the Commonwealth Government for
disposition in accordance with Commonwealth Act No. 682. Thereafter, the People's
Court ordered his release. But the deportation Board taking his case up, found that
having no travel documents Mejoff was illegally in this country, and consequently
referred the matter to the immigration authorities. After the corresponding investigation,
the Board of commissioners of Immigration on April 5, 1948, declared that Mejoff had
entered the Philippines illegally in 1944, without inspection and admission by the
immigration officials at a designation port of entry and, therefore, it ordered that he be
deported on the first available transportation to Russia. The petitioner was then under
custody, he having been arrested on March 18, 1948. In May 1948 he was transferred to
the Cebu Provincial Jail together with three other Russians to await the arrival of some
Russian vessels. In July and August of that year two boats of Russian nationality called at
the Cebu Port. But their masters refused to take petitioner and his companions alleging
lack of authority to do so. In October 1948 after repeated failures to ship this deportee
abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has
been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to keep him under
detention while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that
pending arrangements for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable lenght of time." It took note of the fact,
manifested by the Solicitor General's representative in the course of the of the oral argumment,
that "this Government desires to expel the alien, and does not relish keeping him at the people's
expense . . . making efforts to carry out the decree of exclusion by the highest officer of the
land." No period was fixed within which the immigration authorities should carry out the
contemplated deportation beyond the statement that "The meaning of 'reasonable time' depends
upon the circumstances, specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the governments concerned and the efforts
displayed to send the deportee away;" but the Court warned that "under established precedents,
too long a detention may justify the issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of
this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of
the prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree
"to further detention of the herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent but thought that
two months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government
has not found way and means of removing the petitioner out of the country, and none are in
sight, although it should be said in justice to the deportation authorities, it was through no fault
of theirs that no ship or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon,
Sept. 18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to
be. It is no less true however, as impliedly stated in this Court's decision, supra, that foreign
nationals, not enemy against whom no charge has been made other than that their permission to
stay has expired, may not indefinitely be kept in detention. The protection against deprivation
of liberty without due process of law and except for crimes committed against the laws of
the land is not limited to Philippine citizens but extends to all residents, except enemy
aliens, regardless of nationality. Whether an alien who entered the country in violation of its
immigration laws may be detained for as long as the Government is unable to deport him, is a
point we need not decide. The petitioner's entry into the Philippines was not unlawful; he was
brought by the armed and belligerent forces of a de facto government whose decrees were law
furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled
"Universal Declaration of Human Rights" and approved by the General Assembly of the
United Nations of which the Philippines is a member, at its plenary meeting on December 10,
1948, the right to life and liberty and all other fundamental rights as applied to all human beings
were proclaimed. It was there resolved that "All human beings are born free and equal in degree
and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2):
that "Every one has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8);
that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from
custody an alien who has been detained an unreasonably long period of time by the Department
of Justice after it has become apparent that although a warrant for his deportation has been
issued, the warrant can not be effectuated;" that "the theory on which the court is given the
power to act is that the warrant of deportation, not having been able to be executed, is functus
officio and the alien is being held without any authority of law." The decision cited several cases
which, it said, settled the matter definitely in that jurisdiction, adding that the same result had
reached in innumerable cases elsewhere. The cases referred to were United States ex rel. Ross
vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs.
Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857;
Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins
(1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a
stateless person, formerly a Polish national, resident in the United States since 1911 and many
times serving as a seaman on American vessels both in peace and in war, was ordered excluded
from the United States and detained at Ellis Island at the expense of the steamship company,
when he returned from a voyage on which he had shipped from New York for one or more
European ports and return to the United States. The grounds for his exclusion were that he had
no passport or immigration visa, and that in 1937 had been convicted of perjury because in
certain documents he presented himself to be an American citizen. Upon his application for
release on habeas corpus, the Court released him upon his own recognizance. Judge Leibell, of
the United States District Court for the Southern District of New York, said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some
country that he would receive him as a resident. He is, a native-born Pole but the Polish
Consul has advised him in writing that he is no longer a Polish subject. This Government
does not claim that he is a Polish citizen. His attorney says he is a stateless. The
Government is willing that he go back to the ship, but if he were sent back aboard a ship
and sailed to the Port (Cherbourg, France) from which he last sailed to the United States,
he would probably be denied permission to land. There is no other country that would
take him, without proper documents.

It seems to me that this is a genuine hardship case and that the petitioner should be
released from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost
seven months and practically admits it has no place to send him out of this country. The
steamship company, which employed him as one of a group sent to the ship by the Union,
with proper seaman's papers issued by the United States Coast Guard, is paying $3 a day
for petitioner's board at Ellis Island. It is no fault of the steamship company that
petitioner is an inadmissible alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his
own recognizance. He will be required to inform the immigration officials at Ellis Island
by mail on the 15th of each month, stating where he is employed and where he can be
reached by mail. If the government does succeed in arranging for petitioner's deportation
to a country that will be ready to receive him as a resident, it may then advise the
petitioner to that effect and arrange for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a happy solution
to the quandry in which the parties here finds themselves, solution which we think is sensible,
sound and compatible with law and the Constitution. For this reason, and since the Philippine
law on immigration was patterned after or copied from the American law and practice, we
choose to follow and adopt the reasoning and conclusions in the Staniszewski decision with
some modifications which, it is believed, are in consonance with the prevailing conditions of
peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid
the disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its
answer that "the herein petitioner was brought to the Philippines by the Japanese forces,"
and the fact that Japan is no longer at war with the United States or the Philippines nor identified
with the countries allied against these nations, the possibility of the petitioner's entertaining or
committing hostile acts prejudicial to the interest and security of this country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly
prolonged detention would be unwarranted by law and the Constitution, if the only purpose of
the detention be to eliminate a danger that is by no means actual, present, or uncontrolable. After
all, the Government is not impotent to deal with or prevent any threat by such measure as that
just outlined. The thought eloquently expressed by Mr. Justice Jackson of the United States
Supreme Court in connection with the appliccation for bail of ten Communists convicted by a
lower court of advocacy of violent overthrow of the United States Government is, in principle,
pertinent and may be availed of at this juncture. Said the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after

conviction, have forfeited their claim to bail. Grave public danger is said to result from
what they may be expected to do, in addition to what they have done since their
conviction. If I assume that defendants are disposed to commit every opportune disloyal
to act helpful to Communist countries, it is still difficult to reconcile with traditional
American law the jailing of persons by the courts because of anticipated but as yet
uncommitted crimes. lmprisonment to protect society from predicted but unconsummated
offenses is so unprecedented in this country and so fraught with danger of excesses and
injustice that I am loath to resort it, even as a discretionary judicial technique to
supplement conviction of such offenses as those of which defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the
same constitutional bundle with those of these Communists. If an anger or disgust with
these defendants we throw out the bundle, we alsocast aside protection for the liberties of
more worthy critics who may be in opposition to the government of some future day.

x x x           x x x           x x x1âwphïl.nêt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle,
there is a very practical aspect of this application which must not be overlooked or
underestimated — that is the disastrous effect on the reputation of American justice if I
 should now send these men to jail and the full Court later decide that their conviction is
invalid. All experience with litigation teaches that existence of a substantial question
about a conviction implies a more than negligible risk of reversal. Indeed this experience
lies back of our rule permitting and practice of allowing bail where such questions exist,
to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our
system of justice. If that is prudent judicial practice in the ordinary case, how much more
important to avoid every chance of handing to the Communist world such an ideological
weapon as it would have if this country should imprison this handful of Communist
leaders on a conviction that our highest Court would confess to be illegal. Risks, of
course, are involved in either granting or refusing bail. I am naive enough to
underestimate the troublemaking propensities of the defendants. But, with the
Department of Justice alert to the the dangers, the worst they can accomplish in the short
time it will take to end the litigation is preferable to the possibility of national
embarrassment from a celebrated case of unjustified imprisonment of Communist
leaders. Under no circumstances must we permit their symbolization of an evil force in
the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid
that risk is not to jail these men until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of
universal application. In fact, its ratio decidendi applies with greater force to the present petition,
since the right of accused to bail pending apppeal of his case, as in the case of the ten
Communists, depends upon the discretion of the court, whereas the right to be enlarged before
formal charges are instituted is absolute. As already noted, not only are there no charges pending
against the petitioner, but the prospects of bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner
from custody upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed adequate to
insure that he keep peace and be available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness shall be submitted to this
Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put
up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which
bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth
Act No. 613.

No costs will be charged

G.R. No. L-2662             March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO
TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT,
respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and

Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by
the Chief of Staff of the Armed forces of the Philippines with having unlawfully
disregarded and failed "to discharge his duties as such command, permitting them to
commit brutal atrocities and other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" —
comes before this Court seeking to establish the illegality of Executive Order No. 68 of the
President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert
Port from participating in the prosecution of petitioner's case before the Military Commission
and to permanently prohibit respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national
and international." Hence petitioner argues — "That in view off the fact that this commission has
been empanelled by virtue of an unconstitutional law an illegal order this commission is without
jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are
part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita vs.
Styer (L-129, 42 Off. Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After

cessation of armed hostilities incident of war may remain pending which
should be disposed of as in time of war. An importance incident to a
conduct of war is the adoption of measure by the military command not
only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. (Ex parte Quirin
317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of
waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes
the period of an armistice or military occupation up to the effective of a
treaty of peace and may extend beyond by treaty agreement. (Cowles
Trial of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to

consummate this unfinished aspect of war namely the trial and punishment of
war criminal through the issuance and enforcement of Executive Order No.
68.

Petitioner argues that respondent Military Commission has no Jurisdiction to

try petitioner for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these
rules and principles were accepted by the two belligerent nation the United
State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines
was not a signatory to the conventions embodying them for our Constitution
has been deliberately general and extensive in its scope and is not confined to
the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly

committed the Philippines was under the sovereignty of United States and
thus we were equally bound together with the United States and with Japan to
the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not erased by our assumption of
full sovereignty. If at all our emergency as a free state entitles us to enforce
the right on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to remember
what we have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to

Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it is an
offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our
government while we were a Commonwealth are triable and punishable by
our present Republic.

Petitioner challenges the participation of two American attorneys namely

Melville S. Hussey and Robert Port in the prosecution of his case on the
ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal

governed by a special law and not by the Rules of court which govern ordinary
civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that
counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it
is common in military tribunals that counsel for the parties are usually military
personnel who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that United States, which has
submitted the vindication of crimes against her government and her people to
a tribunal of our nation should be allowed representation in the trial of those
very crimes. If there has been any relinquishment of sovereignty it has not
been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could
do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner
challenges the personality of attorneys Hussey and Port as prosecutors. It is
of common knowledge that the United State and its people have been equally
if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for
our Republic that a leader nation should submit the vindication of the honor of
its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with
jurisdiction over the crimes charged which fall under the provisions of
Executive Order No. 68, and having said petitioner in its custody, this Court
will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen.

Shigenori Kuroda for Violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by
the Supreme Court to practice law were appointed prosecutor representing
the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No.
68 of the President of the Philippines the validity of which is challenged by
petitioner on constitutional grounds. Petitioner has also challenged the
personality of Attorneys Hussey and Port to appear as prosecutors before the
commission.

The charges against petitioner has been filed since June 26, 1948 in the
name of the people of the Philippines as accusers.

We will consideration briefly the challenge against the appearance of

Attorneys Hussey and Port. It appearing that they are aliens and have not
been authorized by the Supreme Court to practice law there could not be any
question that said person cannot appear as prosecutors in petitioner case as
with such appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the

momentous question involved in the challenge against the validity of
Executive Order No. 68. Said order is challenged on several constitutional
ground. To get a clear idea of the question raised it is necessary to read the
whole context of said order which is reproduced as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND

PRESCRIBING RULES AND REGULATION GOVERNING THE
TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power

vested in me by the Constitution and laws of the Philippines do hereby
establish a National War Crimes Office charged with the responsibility of
accomplishing the speedy trial of all Japanese accused of war crimes
committed in the Philippines and prescribe the rules and regulation such
trial.

The National War crimes office is established within the office of the
Judge Advocate General of the Army of the Philippines and shall
function under the direction supervision and control of the Judge
Advocate General. It shall proceed to collect from all available sources
evidence of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941, maintain a
record thereof and bring about the prompt trial maintain a record thereof
and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the
Legal Section General Headquarters, Supreme Commander for the
Allied power and shall exchange with the said Office information and
evidence of war crimes.

The following rules and regulation shall govern the trial off person
accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by military

commission to be convened by or under the authority of the Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder

shall have jurisdiction over all persons charged with war crimes who are
in the custody of the convening authority at the time of the trial.

(b) Over Offenses. — The military commission established hereunder

shall have jurisdiction over all offenses including but not limited to the
following:

(1) The planning preparation initiation or waging of a war of aggression

or a war in violation of international treaties agreement or assurance or
participation in a common plan or conspiracy for the accomplishment of
any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include
but not be limited to murder ill-treatment or deportation to slave labor or
for other purpose of civilian population of or in occupied territory; murder
or ill-treatment of prisoners of war or internees or person on the seas or
elsewhere; improper treatment of hostage; plunder of public or private
property wanton destruction of cities towns or village; or devastation not
justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman

acts committed against civilian population before or during the war or
persecution on political racial or religion ground in executive of or in
connection with any crime defined herein whether or not in violation of
the local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission shall be
appointed by the President of the Philippines or under authority
delegated by him. Alternates may be appointed by the convening
authority. Such shall attend all session of the commission, and in case
of illness or other incapacity of any principal member, an alternate shall
take the place of that member. Any vacancy among the members or
alternates, occurring after a trial has begun, may be filled by the
convening authority but the substance of all proceeding had evidence
taken in that case shall be made known to the said new member or
alternate. This facts shall be announced by the president of the
commission in open court.

(b) Number of Members. — Each commission shall consist of not less

than three (3) members.

(c) Qualifications. — The convening authority shall appoint to the

commission persons whom he determines to be competent to perform
the duties involved and not disqualified by personal interest or prejudice,
provided that no person shall be appointed to hear a case in which he
personally investigated or wherein his presence as a witness is
required. One specially qualified member whose ruling is final in so far
as concerns the commission on an objection to the admissibility of
evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings and

finding of the Commission shall be by majority vote except that
conviction and sentence shall be by the affirmative vote of not less than
conviction and sentence shall be by the affirmative vote of not less than
two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority does
not name one of the member as the presiding member, the senior
officer among the member of the Commission present shall preside.

IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one or

more person to conduct the prosecution before each commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a
commission.

(2) To prepare cases for trial and to conduct the prosecution before the
commission of all cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the
issues raised by the charges, excluding irrelevant issues or evidence
and preventing any unnecessary delay or interference.

(2) Deal summarily with any contumacy or contempt, imposing any

appropriate punishment therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as
may be directed by the convening authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and

specifications clearly worded so as to apprise the accused of each
offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by

the convening authority or counsel of his own choice, or to conduct his
own defense.

(3) To testify in his own behalf and have his counsel present relevant
evidence at the trial in support of his defense, and cross-examine each
adverse witness who personally appears before the commission.

(4) To have the substance of the charges and specifications, the

proceedings and any documentary evidence translated, when he is
unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony;
to administer oaths or affirmations to witnesses and other persons and
to question witnesses.

(2) To require the production of documents and other evidentiary

material.

(3) To delegate the Prosecutors appointed by the convening authority

the powers and duties set forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed by the

commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be
of assistance in proving or disproving the charge, or such as in the
commission's opinion would have probative value in the mind of a
reasonable man. The commission shall apply the rules of evidence and
pleading set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in any way the
scope of the foregoing general rules, the following evidence may be
admitted:

(a) Any document, irrespective of its classification, which appears to the

commission to have been signed or issued by any officer, department,
agency or member of the armed forces of any Government without
proof of the signature or of the issuance of the document.

(b) Any report which appears to the commission to have been signed or
issued by the International Red Cross or a member of any medical
service personnel, or by any investigator or intelligence officer, or by
any other person whom commission considers as possessing
knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements,

appearing to the commission to contain information relating to the
charge.
(e) A copy of any document or other secondary evidence of the
contents, if the original is not immediately available.

(2) The commission shall take judicial notice of facts of common

knowledge, official government documents of any nation, and the
proceedings, records and findings of military or other agencies of any of
the United Nation.

(3) A commission may require the prosecution and the defense to make
a preliminary offer of proof whereupon the commission may rule in
advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from
responsibility nor be considered in mitigation of punishment. Further
action pursuant to an order of the accused's superior, or of his
Government, shall not constitute a defense, but may be considered in
mitigation of punishment if the commission determines that justice so
requires.

(5) All purposed confessions or statements of the accused shall bee

admissible in evidence without any showing that they were voluntarily
made. If it is shown that such confession or statement was procured by
mean which the commission believe to have been of such a character
that may have caused the accused to make a false statement the
commission may strike out or disregard any such portion thereof as was
so procured.

(e) Trial Procedure. — The proceedings of each trial shall be conducted

substantially as follows unless modified by the commission to suit the
particular circumstances:

(1) Each charge and specification shall be read or its substance stated
in open court.

(2) The presiding member shall ask each accused whether he pleads
"Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The presiding
member may at this or any other time require the prosecutor to state
what evidence he proposes to submit to the commission and the
commission thereupon may rule upon the admissibility of such
evidence.
(4) The witnesses and other evidence for the prosecution shall be heard
or presented. At the close of the case for the prosecution, the
commission may, on motion of the defense for a finding of not guilty,
consider and rule whether he evidence before the commission may
defer action on any such motion and permit or require the prosecution to
reopen its case and produce any further available evidence.

(5) The defense may make an opening statement prior to presenting its
case. The presiding member may, at this any other time require the
defense to state what evidence it proposes to submit to the commission
where upon the commission may rule upon the admissibility of such
evidence.

(6) The witnesses and other evidence for the defense shall be heard or
presented. Thereafter, the prosecution and defense may introduce such
evidence in rebuttal as the commission may rule as being admissible.

(7) The defense and thereafter the prosecution shall address the
commission.

(8) The commission thereafter shall consider the case in closed session
and unless otherwise directed by the convening authority, announce in
open court its judgment and sentence if any. The commission may state
the reason on which judgment is based.

( f ) Record of Proceedings. — Each commission shall make a separate

record of its proceeding in the trial of each case brought before it. The
record shall be prepared by the prosecutor under the direction of the
commission and submitted to the defense counsel. The commission
shall be responsible for its accuracy. Such record, certified by the
presiding member of the commission or his successor, shall be
delivered to the convening authority as soon as possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon

conviction to death by hanging or shooting, imprisonment for life or for
any less term, fine or such other punishment as the commission shall
determine to be proper.

(h) Approval of Sentence. — No. sentence of a military commission

shall be carried into effect until approved by the chief off Staff: Provided,
That no sentence of death or life imprisonment shall be carried into
execution until confirmed by the President of the Philippines. For the
purpose of his review the Chief of Staff shall create a Board of Review
to be composed of not more than three officers none of whom shall be
on duty with or assigned to the Judge Advocate General's Office. The
Chief of Staff shall have authority to approve, mitigate remit in whole or
in part, commute, suspend, reduce or otherwise alter the sentence
imposed, or (without prejudice to the accused) remand the case for
rehearing before a new military commission; but he shall not have
authority to increase the severity of the sentence. Except as herein
otherwise provided the judgment and sentence of a commission shall
final and not subject to review by any other tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt rules

and forms to govern its procedure, not inconsistent with the provision of
this Order, or such rules and forms as may be prescribed by the
convening authority]or by the President of the Philippines.

VII. The amount of amount of seven hundred thousand pesos is hereby

set aside out of the appropriations for the Army of the Philippines for
use by the National War Crimes Office in the accomplishment of its
mission as hereinabove set forth, and shall be expended in accordance
with the recommendation of the Judge Advocate General as approved
by the President. The buildings, fixtures, installations, messing, and
billeting equipment and other property herefore used by then Legal
Section, Manila Branch, of the General Headquarters, Supreme
Commander for the Allied Power, which will be turned over by the
United States Army to the Philippines Government through the Foreign
Liquidation Commission and the Surplus Property Commission are
hereby specification reserved for use off the National War Crimes
Office.

Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord,
nineteen hundred and forty-seven, and of the Independence of the
Philippines, the second.

MANUEL ROXAS
President of the Philippines
 By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the

benefit of congressional enactment.

The first question that is trust at our face spearheading a group of other no
less important question, is whether or not the President of the Philippines may
exercise the legislative power expressly vested in Congress by the
Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines

which shall consist of a Senate and House of Representatives. (Section
1, Article VI.)

While there is no express provision in the fundamental law prohibiting the

exercise of legislative power by agencies other than Congress, a reading of
the whole context of the Constitution would dispel any doubt as to the
constitutional intent that the legislative power is to be exercised exclusively by
Congress, subject only to the veto power of the President of the President of
the Philippines, to the specific provision which allow the president of the
Philippines to suspend the privileges of the writ of habeas corpus and to place
any part of the Philippines under martial law, and to the rule-making power
expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional

Convention were believers in the tripartite system of government as originally
enunciated by Aristotle, further elaborated by Montequieu and accepted and
practiced by modern democracies, especially the United State of America,
whose Constitution, after which ours has been patterned, has allocated the
three power of government — legislative, executive, judicial — to distinct and
separate department of government.

Because the power vested by our Constitution to the several department of

the government are in the nature of grants, not recognition of pre-existing
power, no department of government may exercise any power or authority not
expressly granted by the Constitution or by law by virtue express authority of
the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the
power to establish government office is essentially legislative.

The order provides that person accused as war criminals shall be tried by
military commissions. Whether such a provision is substantive or adjective, it
is clearly legislative in nature. It confers upon military commissions jurisdiction
to try all persons charge with war crimes. The power to define and allocate
jurisdiction for the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision on
procedural subject constitutes a usurpation of the rule-making power vested
by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the

President of the Philippines cannot exercise the rule -making power vested by
the Constitution in the Supreme Court, he cannot, with more reason, delegate
that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War
Crimes office established by the said Executive Order No. 68. This constitutes
another usurpation of legislative power as the power to vote appropriations
belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the
President of the Philippines usurped power expressly vested by the
Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the

President issued Executive Order No. 68, respondent could not give any
definite answer. They attempted, however, to suggest that the President of the
Philippines issued Executive Order No. 68 under the emergency power
granted to him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which
are transcribed below:

COMMONWEALTH ACT NO. 600.

 AN ACT DECLARING A STATE OF EMERGENCY AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULES
AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS
INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has

created a national emergency which makes it necessary to invest the
President of the Philippines with extraordinary power in order to
safeguard the integrity of the Philippines and to insure the tranquility of
its inhabitants, by suppressing espionage, lawlessness, and all
subversive to the people adequate shelter and clothing and sufficient
food supply, and by providing means for the speedy evacuation of the
civilian population the establishment of an air protective service and the
organization of volunteer guard units, and to adopt such other measures
as he may deem necessary for the interest of the public. To carry out
this policy the President is authorized to promulgate rules and
regulations which shall have the force and effect off law until the date of
adjournment of the next regulation which shall have the force and effect
of law until the date of adjournment of the next regular session of the
First Congress of the Philippines, unless sooner amended or repealed
by the Congress of Philippines. Such rules and regulation may embrace
the following objects: (1) to suppress espionage and other subversive
activities; (2) to require all able-bodied citizens (a) when not engaged in
any lawful occupation, to engage in farming or other productive activities
or (b) to perform such services as may bee necessary in the public
interest; (3) to take over farm lands in order to prevent or shortage of
crops and hunger and destitution; (4) to take over industrial
establishment in order to insure adequate production, controlling wages
and profits therein; (5) to prohibit lockouts and strikes whenever
necessary to prevent the unwarranted suspension of work in productive
enterprises or in the interest of national security; (6) to regulate the
normal hours of work for wage-earning and salaried employees in
industrial or business undertakings of all kinds; (7) to insure an even
distribution of labor among the productive enterprises; (8) to
commandership and other means of transportation in order to maintain,
as much as possible, adequate and continued transportation facilities;
(9) to requisition and take over any public service or enterprise for use
or operation by the Government;(10) to regulate rents and the prices of
articles or commodities of prime necessity, both imported and locally
produced or manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding injurious speculations, and private
control affecting the supply, distribution and movement of foods,
clothing, fuel, fertilizer, chemical, building, material, implements,
machinery, and equipment required in agriculture and industry, with
power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its
objective, the President may designate any officer, without additional
compensation, or any department, bureau, office, or instrumentality of
the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of

any provision of this Act or of this Act or any of the rules or regulations
promulgated by the President under the authority of section one of this
Act shall be punished by imprisonment of not more than ten years or by
a fine of not more than ten thousand pesos, or by both. If such violation
is committed by a firm or corporation, the manager, managing director,
or person charge with the management of the business of such firm, or
corporation shall be criminally responsible therefor.

SEC. 4. The President shall report to the national Assembly within the
first ten days from the date of the opening of its next regular session
whatever action has been taken by him under the authority herein
granted.

SEC. 5. To carry out the purposed of this Act, the President is

authorized to spend such amounts as may be necessary from the sum
appropriated under section five Commonwealth Act Numbered four
hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of

competent jurisdiction to be unconstitutional and void, such declaration
shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

 COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A

RESULT OF WAR INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULE
AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other
countries of Europe and Asia, which involves the Philippines, makes it
necessary to invest the President with extraordinary powers in order to
meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the

Constitution, the President is hereby authorized, during the existence of
the emergency, to promulgate such rules and regulation as he may
deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its subdivisions, branches,
department, offices, agencies or instrumentalities; (b) to reorganize the
Government of the Commonwealth including the determination of the
order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or
instrumentalities of government and to abolish any of those already
existing; (d) to continue in force laws and appropriation which would
lapse or otherwise became inoperative, and to modify or suspend the
operation or application of those of an administrative character; (e) to
imposed new taxes or to increase, reduce, suspend, or abolish those in
existence; (f) to raise funds through the issuance of bonds or otherwise,
and to authorize the expensive of the proceeds thereof; (g) to authorize
the National, provincial, city or municipal governments to incur in
overdrafts for purposes that he may approve; (h) to declare the
suspension of the collection of credits or the payment of debts; and (i) to
exercise such other power as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its
authority.

SEC. 3. The President of the Philippines report thereto all the rules and
regulation promulgated by him under the power herein granted.
 SEC. 4. This Act shall take effect upon its approval and the rules and
regulations. promulgated hereunder shall be in force and effect until the
Congress of the Philippines shall otherwise provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued
on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines
form the Japanese forces or, at the latest, when the surrender of Japan was
signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we

happened to have taken direct part in their consideration and passage, not
only as one of the members of said legislative body as chairman of the
Committee on Third Reading population Known as the "Little Senate." We are,
therefore in a position to state that said measures were enacted by the
second national Assembly for the purpose of facing the emergency of
impending war and of the Pacific War that finally broke out with the attack of
Pearl Harbor on December 7, 1941. We approved said extraordinary
measures, by which under the exceptional circumstances then prevailing
legislative power were delegated to the President of the Philippines, by virtue
of the following provisions of the Constitution:

In time of war or other national emergency, the Congress may by law

authorize the President, for a limited period and subject to such
restrictions as it may prescribe to promulgate rules and regulations to
carry out declared national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the
delegation beyond the emergency created by the war as to extend it farther
would be violative of the express provision of the Constitution. We are of the
opinion that there is no doubt on this question.; but if there could still be any
the same should be resolved in favor of the presumption that the National
Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect
even after the surrender of Japan can not be gainsaid. Only a few months
after liberation and even before the surrender of Japan, or since the middle of
1945, the Congress started to function normally. In the hypothesis that the
contention can prevail, then, since 1945, that is, four years ago, even after the
Commonwealth was already replaced by the Republic of the Philippines with
the proclamation of our Independence, two district, separate and
independence legislative organs, — Congress and the President of the
Philippines — would have been and would continue enacting laws, the former
to enact laws of every nature including those of emergency character, and the
latter to enact laws, in the form of executive orders, under the so-called
emergency powers. The situation would be pregnant with dangers to peace
and order to the rights and liberties of the people and to Philippines
democracy.

Should there be any disagreement between Congress and the President of

the Philippines, a possibility that no one can dispute the President of the
Philippines may take advantage of he long recess of Congress (two-thirds of
every year ) to repeal and overrule legislative enactments of Congress, and
may set up a veritable system of dictatorship, absolutely repugnant to the
letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it

violates the fundamental guarantees of the due process and equal protection
of the law. It is especially so, because it permit the admission of many kinds
evidence by which no innocent person can afford to get acquittal and by which
it is impossible to determine whether an accused is guilty or not beyond all
reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction

of the regulation governing the trial of twelve criminal, issued by General
Douglas Mac Arthur, Commander in Chief of the United State Armed Forces
in Western Pacific, for the purpose of trying among other, General Yamashita
and Homma. What we said in our concurring and dissenting opinion to the
decision promulgated on December 19, 1945, in the Yamashita case, L-129,
and in our concurring and dissenting opinion to the resolution of January 23,
1946 in disposing the Homma case, L-244, are perfectly applicable to the
offensive rules of evidence in Executive Order No. 68. Said rules of evidence
are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and
Homma cases, we vote to declare Executive Order No. 68 null and void and
to grant petition.

G.R. No. L-2662             March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO
TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT,
respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and

Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces
in violation of the laws and customs of war" — comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national
and international." Hence petitioner argues — "That in view off the fact that this commission has
been empanelled by virtue of an unconstitutional law an illegal order this commission is without
jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —
 The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are
part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita vs.
Styer (L-129, 42 Off. Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After

cessation of armed hostilities incident of war may remain pending which
should be disposed of as in time of war. An importance incident to a
conduct of war is the adoption of measure by the military command not
only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. (Ex parte Quirin
317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of
waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes
the period of an armistice or military occupation up to the effective of a
treaty of peace and may extend beyond by treaty agreement. (Cowles
Trial of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to

consummate this unfinished aspect of war namely the trial and punishment of
war criminal through the issuance and enforcement of Executive Order No.
68.

Petitioner argues that respondent Military Commission has no Jurisdiction to

try petitioner for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these
rules and principles were accepted by the two belligerent nation the United
State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines
was not a signatory to the conventions embodying them for our Constitution
has been deliberately general and extensive in its scope and is not confined to
the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly

committed the Philippines was under the sovereignty of United States and
thus we were equally bound together with the United States and with Japan to
the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not erased by our assumption of
full sovereignty. If at all our emergency as a free state entitles us to enforce
the right on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to remember
what we have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to

Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it is an
offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our
government while we were a Commonwealth are triable and punishable by
our present Republic.

Petitioner challenges the participation of two American attorneys namely

Melville S. Hussey and Robert Port in the prosecution of his case on the
ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal

governed by a special law and not by the Rules of court which govern ordinary
civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that
counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it
is common in military tribunals that counsel for the parties are usually military
personnel who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that United States, which has
submitted the vindication of crimes against her government and her people to
a tribunal of our nation should be allowed representation in the trial of those
very crimes. If there has been any relinquishment of sovereignty it has not
been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could
do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner
challenges the personality of attorneys Hussey and Port as prosecutors. It is
of common knowledge that the United State and its people have been equally
if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for
our Republic that a leader nation should submit the vindication of the honor of
its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with
jurisdiction over the crimes charged which fall under the provisions of
Executive Order No. 68, and having said petitioner in its custody, this Court
will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.