restrained of their liberty by Justo Lukban, Mayor of the city of
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be met
with in this modern epoch of triumphant democracy, yet, after all,
the cause presents no great difficulty if there is kept in the forefront
of our minds the basic principles of popular government, and if we
give expression to the paramount purpose for which the courts, as
an independent power of such a government, were constituted. The
primary question is — Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the
Philippine Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of
the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of years in the city
of Manila, closed. Between October 16 and October 25, 1918, the
women were kept confined to their houses in the district by the
police. Presumably, during this period, the city authorities quietly
perfected arrangements with the Bureau of Labor for sending the
women to Davao, Mindanao, as laborers; with some government
office for the use of the coastguard cutters Corregidor and Negros,
and with the Constabulary for a guard of soldiers. At any rate, about
midnight of October 25, the police, acting pursuant to orders from
the chief of police, Anton Hohmann and the Mayor of the city of
Manila, Justo Lukban, descended upon the houses, hustled some
170 inmates into patrol wagons, and placed them aboard the
steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under
the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for
a life in Mindanao. They had not been asked if they wished to depart
from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received
on board the steamers by a representative of the Bureau of Labor
and a detachment of Constabulary soldiers. The two steamers with
their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29. The
women were landed and receipted for as laborers by Francisco
Sales, provincial governor of Davao, and by Feliciano Yñigo and
Rafael Castillo. The governor and the hacendero Yñigo, who appear
as parties in the case, had no previous notification that the women
were prostitutes who had been expelled from the city of Manila. The
further happenings to these women and the serious charges
growing out of alleged ill-treatment are of public interest, but are
not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more
or less clandestine relations with men, others went to work in
different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of
the deportees presented an application for habeas corpus to a
member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the
women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as
including them. The application set forth the salient facts, which
need not be repeated, and alleged that the women were illegally
545
Manila, Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before the
full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted
because the petitioners were not proper parties, because the action
should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did
not have any of the women under their custody or control, and
because their jurisdiction did not extend beyond the boundaries of
the city of Manila. According to an exhibit attached to the answer
of the fiscal, the 170 women were destined to be laborers, at good
salaries, on the haciendas of Yñigo and Governor Sales. In open
court, the fiscal admitted, in answer to question of a member of the
court, that these women had been sent out of Manila without their
consent. The court awarded the writ, in an order of November 4,
that directed Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Francisco Sales,
governor of the province of Davao, and Feliciano Yñigo,
an hacenderoof Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December
2, 1918.
Before the date mentioned, seven of the women had returned to
Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December
2nd, 1918, none of the persons in whose behalf the writ was issued
were produced in court by the respondents. It has been shown that
three of those who had been able to come back to Manila through
their own efforts, were notified by the police and the secret service
to appear before the court. The fiscal appeared, repeated the facts
more comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the Mayor
of the city of Manila to the provincial governor of Davao and the
answer thereto, and telegrams that had passed between the
Director of Labor and the attorney for that Bureau then in Davao,
and offered certain affidavits showing that the women were
contained with their life in Mindanao and did not wish to return to
Manila. Respondents Sales answered alleging that it was not
possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at
liberty in the Province of Davao, and because they had married or
signed contracts as laborers. Respondent Yñigo answered alleging
that he did not have any of the women under his control and that
therefore it was impossible for him to obey the mandate. The court,
after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents
Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless
the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court,
renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were
in contempt of court would later be decided and the reasons for the
order announced in the final decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen, and of
the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January
13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts
and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once
again recounted the facts and further endeavored to account for all
of the persons involved in the habeas corpus. In substance, it was
stated that the respondents, through their representatives and
agents, had succeeded in bringing from Davao with their consent
eight women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn statements;
that fifty-nine had already returned to Manila by other means, and
that despite all efforts to find them twenty-six could not be located.
Both counsel for petitioners and the city fiscal were permitted to
submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police
of the city of Manila, Jose Rodriguez and Fernando Ordax, members
of the police force of the city of Manila, Feliciano Yñigo,
an hacendero of Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in
contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will now
proceed to do so.
One fact, and one fact only, need be recalled — these one hundred
and seventy women were isolated from society, and then at night,
without their consent and without any opportunity to consult with
friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that
such was not the case is shown by the mere fact that the presence
of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their
secret and stealthy acts. Indeed, this is a fact impossible to refute
and practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question — By authority of what law did the Mayor and the Chief of
Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of congress. The Governor-General can
order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and section 733
of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who
is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of
vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even
when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it
is done pursuant to some law or order. But one can search in vain
for any law, order, or regulation, which even hints at the right of
the Mayor of the city of Manila or the chief of police of that city to
force citizens of the Philippine Islands — and these women despite
their being in a sense lepers of society are nevertheless not chattels
but Philippine citizens protected by the same constitutional
guaranties as are other citizens — to change their domicile from
Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly
authorized by law or regulation, compels any person to change his
residence.
In other countries, as in Spain and Japan, the privilege of domicile
is deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine
Islands, even the President of the United States, who has often
been said to exercise more power than any king or potentate, has
no such arbitrary prerogative, either inherent or express. Much
less, therefore, has the executive of a municipality, who acts within
a sphere of delegated powers. If the mayor and the chief of police
could, at their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the
546
presidents and chiefs of police of one thousand other municipalities
of the Philippines have the same privilege. If these officials can take
to themselves such power, then any other official can do the same.
And if any official can exercise the power, then all persons would
have just as much right to do so. And if a prostitute could be sent
against her wishes and under no law from one locality to another
within the country, then officialdom can hold the same club over
the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed
that — "No freeman shall be taken, or imprisoned, or be disseized
of his freehold, or liberties, or free customs, or be outlawed, or
exiled, or any other wise destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his peers or by the law of
the land. We will sell to no man, we will not deny or defer to any
man either justice or right." (Magna Charta, 9 Hen., 111, 1225,
Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high,
is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors.
"The law," said Justice Miller, delivering the opinion of the Supreme
Court of the United States, "is the only supreme power in our
system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it
imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another case, "that
one man may be compelled to hold his life, or the means of living,
or any material right essential to the enjoyment of life, at the mere
will of another, seems to be intolerable in any country where
freedom prevails, as being the essence of slavery itself." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was
whether the courts should permit a government of men or a
government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official
oppression? The remedies of the citizen are three: (1) Civil action;
(2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest with
the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as
that now before us.
As to criminal responsibility, it is true that the Penal Code in force
in these Islands provides:
Any public officer not thereunto authorized by law or by regulations
of a general character in force in the Philippines who shall banish
any person to a place more than two hundred kilometers distant
from his domicile, except it be by virtue of the judgment of a court,
shall be punished by a fine of not less than three hundred and
twenty-five and not more than three thousand two hundred and
fifty pesetas.
Any public officer not thereunto expressly authorized by law or by
regulation of a general character in force in the Philippines who
shall compel any person to change his domicile or residence shall
suffer the penalty of destierro and a fine of not less than six
hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the
proper prosecuting officers find that any public officer has violated
this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the
same official in this action. Nevertheless, that the act may be a
crime and that the persons guilty thereof can be proceeded against,
is no bar to the instant proceedings. To quote the words of Judge
Cooley in a case which will later be referred to — "It would be a
monstrous anomaly in the law if to an application by one unlawfully
confined, ta be restored to his liberty, it could be a sufficient answer
that the confinement was a crime, and therefore might be
continued indefinitely until the guilty party was tried and punished
therefor by the slow process of criminal procedure." (In the matter
of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas
corpus was devised and exists as a speedy and effectual remedy to
relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any further rights of the
parties are left untouched by decision on the writ, whose principal
purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this instance.
The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and
(3) that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to
the city limits and that perforce they could not bring the women
from Davao.
The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way the
expulsion was conducted by the city officials made it impossible for
the women to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by persons in their
behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or restrained of his
liberty, though no application be made therefor. (Code of Criminal
Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for
in the Court of First Instance of Davao or should have been made
returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the
court of first instance. But this is not a hard and fast rule. The writ
of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.)
Whether the writ shall be made returnable before the Supreme
Court or before an inferior court rests in the discretion of the
Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of
Davao was in session, or that the women had any means by which
to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that
the case involved parties situated in different parts of the Islands;
it was shown that the women might still be imprisoned or restrained
of their liberty; and it was shown that if the writ was to accomplish
its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court
to consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult
to meet. When the writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no restraint; the women, it
is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first
blush, this is a tenable position. On closer examination, acceptance
of such dictum is found to be perversive of the first principles of the
writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will
547
preclude freedom of action is sufficient. The forcible taking of these
women from Manila by officials of that city, who handed them over
to other parties, who deposited them in a distant region, deprived
these women of freedom of locomotion just as effectively as if they
had been imprisoned. Placed in Davao without either money or
personal belongings, they were prevented from exercising the
liberty of going when and where they pleased. The restraint of
liberty which began in Manila continued until the aggrieved parties
were returned to Manila and released or until they freely and truly
waived his right.
Consider for a moment what an agreement with such a defense
would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen and
place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and that
he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within
the jurisdiction of the court and has it in his power to obey the order
of the court and thus to undo the wrong that he has inflicted, he
should be compelled to do so. Even if the party to whom the writ is
addressed has illegally parted with the custody of a person before
the application for the writ is no reason why the writ should not
issue. If the mayor and the chief of police, acting under no authority
of law, could deport these women from the city of Manila to Davao,
the same officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the reach of
process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act
with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of
liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented
to the courts for decision. Nevertheless, strange as it may seem, a
close examination of the authorities fails to reveal any analogous
case. Certain decisions of respectable courts are however very
persuasive in nature.
A question came before the Supreme Court of the State of Michigan
at an early date as to whether or not a writ of habeas corpus would
issue from the Supreme Court to a person within the jurisdiction of
the State to bring into the State a minor child under guardianship
in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time
was notable. It was composed of Martin, chief justice, and Cooley,
Campbell, and Christiancy, justices. On the question presented the
court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one
of the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a large
extent on his conception of the English decisions, and since, as will
hereafter appear, the English courts have taken a contrary view,
only the following eloquent passages from the opinion of Justice
Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid before
us. . . .
It would be strange indeed if, at this late day, after the eulogiums
of six centuries and a half have been expended upon the Magna
Charta, and rivers of blood shed for its establishment; after its
many confirmations, until Coke could declare in his speech on the
petition of right that "Magna Charta was such a fellow that he will
have no sovereign," and after the extension of its benefits and
securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that great
clause for the protection of personal liberty, which is the life and
soul of the whole instrument, is so easy as is claimed here. If it is
so, it is important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt they
would, on the subject being brought to their notice. . . .
The second proposition — that the statutory provisions are confined
to the case of imprisonment within the state — seems to me to be
based upon a misconception as to the source of our jurisdiction. It
was never the case in England that the court of king's bench derived
its jurisdiction to issue and enforce this writ from the statute.
Statutes were not passed to give the right, but to compel the
observance of rights which existed. . . .
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served upon,
not the person confined, but his jailor. It does not reach the former
except through the latter. The officer or person who serves it does
not unbar the prison doors, and set the prisoner free, but the court
relieves him by compelling the oppressor to release his constraint.
The whole force of the writ is spent upon the respondent, and if he
fails to obey it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the ordinary mode
of affording relief, and if any other means are resorted to, they are
only auxiliary to those which are usual. The place of confinement
is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is
not increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am aware
of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa,
193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject.
Thus, a child had been taken out of English by the respondent. A
writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the
defendant to produce the child. The judge at chambers gave
defendant until a certain date to produce the child, but he did not
do so. His return stated that the child before the issuance of the
writ had been handed over by him to another; that it was no longer
in his custody or control, and that it was impossible for him to obey
the writ. He was found in contempt of court. On appeal, the court,
through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on
January 22. That writ commanded the defendant to have the body
of the child before a judge in chambers at the Royal Courts of
Justice immediately after the receipt of the writ, together with the
cause of her being taken and detained. That is a command to bring
the child before the judge and must be obeyed, unless some lawful
reason can be shown to excuse the nonproduction of the child. If it
could be shown that by reason of his having lawfully parted with
the possession of the child before the issuing of the writ, the
defendant had no longer power to produce the child, that might be
an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court
for not obeying the writ without lawful excuse. Many efforts have
been made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done at
some time prior to the writ cannot be a contempt. But the question
is not as to what was done before the issue of the writ. The question
is whether there has been a contempt in disobeying the writ it was
issued by not producing the child in obedience to its commands.
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep.
[N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24
Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest.
A habeas corpus was directed to the defendant to have before the
548
circuit court of the District of Columbia three colored persons, with
the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus,
and that they were then beyond his control and out of his custody.
The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus.
The court held the return to be evasive and insufficient, and that
Davis was bound to produce the negroes, and Davis being present
in court, and refusing to produce them, ordered that he be
committed to the custody of the marshall until he should produce
the negroes, or be otherwise discharged in due course of law. The
court afterwards ordered that Davis be released upon the
production of two of the negroes, for one of the negroes had run
away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis
[1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also
Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd
ed., p. 170.)
We find, therefore, both on reason and authority, that no one of
the defense offered by the respondents constituted a legitimate bar
to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied
with the two orders of the Supreme Court awarding the writ
of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yñigo to present the
persons named in the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The respondents were thus
given ample time, practically one month, to comply with the writ.
As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but
who should not be permitted to do so because of having contracted
debts. The half-hearted effort naturally resulted in none of the
parties in question being brought before the court on the day
named.
For the respondents to have fulfilled the court's order, three
optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or (2)
they could have shown by affidavit that on account of sickness or
infirmity those persons could not safely be brought before the
court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present.
(Code of Criminal Procedure, sec. 87.) They did not produce the
bodies of the persons in whose behalf the writ was granted; they
did not show impossibility of performance; and they did not present
writings that waived the right to be present by those interested.
Instead a few stereotyped affidavits purporting to show that the
women were contended with their life in Davao, some of which have
since been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is
demonstrated to be found in the municipality of Davao, and that
about this number either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondents guilty
of contempt of court, and in sending them to jail until they obeyed
the order. Their excuses for the non-production of the persons were
far from sufficient. The, authorities cited herein pertaining to
somewhat similar facts all tend to indicate with what exactitude
a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the
Court, said: "We thought that, having brought about that state of
things by his own illegal act, he must take the consequences; and
we said that he was bound to use every effort to get the child back;
that he must do much more than write letters for the purpose; that
he must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in the
matter; and that the court would only accept clear proof of an
absolute impossibility by way of excuse." In other words, the return
did not show that every possible effort to produce the women was
made by the respondents. That the court forebore at this time to
take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials
and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a better
spirit. Agents were dispatched to Mindanao, placards were posted,
the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of
the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial
compliance with it. Our finding to this effect may be influenced
somewhat by our sincere desire to see this unhappy incident finally
closed. If any wrong is now being perpetrated in Davao, it should
receive an executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.
The attorney for the petitioners asks that we find in contempt of
court Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto
Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo,
an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.
The power to punish for contempt of court should be exercised on
the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must
falter or fail. Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to produce the body of a
person in obedience to a writ of habeas corpus when he has power
to do so, is a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N.
C., 407.)
ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who
conducted the negotiations with the Bureau of Labor, and who later,
as the head of the city government, had it within his power to
facilitate the return of the unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His intention to suppress
the social evil was commendable. His methods were unlawful. His
regard for the writ of habeas corpus issued by the court was only
tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the
Code of Civil Procedure, which relates to the penalty for disobeying
the writ, and in pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him
as for a contempt. Some members of the court are inclined to this
stern view. It would also be possible to find that since respondent
Lukban did comply substantially with the second order of the court,
he has purged his contempt of the first order. Some members of
the court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court tended
to belittle and embarrass the administration of justice to such an
extent that his later activity may be considered only as extenuating
his conduct. A nominal fine will at once command such respect
without being unduly oppressive — such an amount is P100.
In resume — as before stated, no further action on the writ
of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found in contempt of
court and shall pay into the office of the clerk of the Supreme Court
within five days the sum of one hundred pesos (P100). The motion
of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919,
is granted. Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be
permitted to express the hope that this decision may serve to
bulwark the fortifications of an orderly government of laws and to
protect individual liberty from illegal encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.

With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yñigo appears to
have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto
Diaz, would seem to have done no more than to fulfill his duty as
the legal representative of the city government. Finding him
innocent of any disrespect to the court, his counter-motion to strike
from the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be granted.
When all is said and done, as far as this record discloses, the official
who was primarily responsible for the unlawful deportation, who

549
G.R. No. 94284 April 8, 1991
RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as
Judge of the Regional Trial Court of Cebu City, Branch IX,
and PEOPLE OF THE PHILIPPINES, respondents.
MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court praying that the Decision of respondent Court of Appeals
in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon.
Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as
the Resolution of 29 June 1990 denying reconsideration, be set
aside.
On 14 October 1985, Petitioner was charged with violation of
Section 20 (4) of the Revised Securities Act in Criminal Case No.
CBU-6304 of the Regional Trial Court of Cebu. In due time, he
posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of
the Information, respondent People of the Philippines filed an
Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that
he had gone abroad several times without the necessary Court
approval resulting in postponements of the arraignment and
scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988,
issued an Order directing the Department of Foreign Affairs to
cancel Petitioner's passport or to deny his application therefor, and
the Commission on Immigration to prevent Petitioner from leaving
the country. This order was based primarily on the Trial Court's
finding that since the filing of the Information on 14 October 1985,
"the accused has not yet been arraigned because he has never
appeared in Court on the dates scheduled for his arraignment and
there is evidence to show that accused Ricardo C. Silverio, Sr. has
left the country and has gone abroad without the knowledge and
permission of this Court" (Rollo, p. 45). Petitioner's Motion for
Reconsideration was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a
similar fate on 31 January 1990. Hence, this Petition for Review
filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we
resolved to give due course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not
finding that the Trial Court committed grave abuse of discretion
amounting to lack of jurisdiction in issuing its Orders, dated 4 April
and 28 July 1988, (1) on the basis of facts allegedly patently
erroneous, claiming that the scheduled arraignments could not be
held because there was a pending Motion to Quash the Information;
and (2) finding that the right to travel can be impaired upon lawful
order of the Court, even on grounds other than the "interest of
national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been
omitted by Petitioner, it is apparent that it was filed long after the
filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to
Petitioner's non-appearance. In fact, said Motion to Quash was set
for hearing only on 19 February 1988. Convincingly shown by the
Trial Court and conformed to by respondent Appellate Court is the
concurrence of the following circumstances:
550
1. The records will show that the information was filed on October
14, 1985. Until this date (28 July 1988), the case had yet to be
arraigned. Several scheduled arraignments were cancelled and
reset, mostly due to the failure of accused Silverio to appear. The
reason for accused Silverio's failure to appear had invariably been
because he is abroad in the United States of America;
2. Since the information was filed, until this date, accused Silverio
had never appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled twice
and warrants of arrest had been issued against him all for the same
reason –– failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given
accused Silverio more than enough consideration. The limit had
long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304,
RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988
and 28 July 1988, were not based on erroneous facts, as Petitioner
would want this Court to believe. To all appearances, the pendency
of a Motion to Quash came about only after several settings for
arraignment had been scheduled and cancelled by reason of
Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate
Court "glaringly erred" in finding that the right to travel can be
impaired upon lawful order of the Court, even on grounds other
than the "interest of national security, public safety or public
health."
To start with, and this has not been controverted by Petitioner, the
bail bond he had posted had been cancelled and Warrants of Arrest
had been issued against him by reason, in both instances, of his
failure to appear at scheduled arraignments. Warrants of Arrest
having been issued against him for violation of the conditions of his
bail bond, he should be taken into custody. "Bail is the security
given for the release of a person in custody of the law, furnished
by him or a bondsman, conditioned upon his appearance before any
court when so required by the Court or the Rules (1985 Rules on
Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).
The foregoing condition imposed upon an accused to make himself
available at all times whenever the Court requires his presence
operates as a valid restriction of his right to travel (Manotoc, Jr. vs.
Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149).
A person facing criminal charges may be restrained by the Court
from leaving the country or, if abroad, compelled to return
(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it
is also that "An accused released on bail may be re-arrested without
the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is
pending.
Petitioner takes the posture, however, that while the 1987
Constitution recognizes the power of the Courts to curtail the liberty
of abode within the limits prescribed by law, it restricts the
allowable impairment of the right to travel only on grounds of
interest of national security, public safety or public health, as
compared to the provisions on freedom of movement in the 1935
and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were
treated under one provision.1âwphi1 Article III, Section 1(4)
thereof reads:
The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including WHEREFORE, the judgment under review is hereby AFFIRMED.
the liberty of travel, thus: Costs against petitioner, Ricardo C. Silverio.

The liberty of abode and of travel shall not be impaired except upon SO ORDERED.
lawful order of the court or when necessary in the interest of
national security, public safety, or public health (Article IV, Section
5).

The 1987 Constitution has split the two freedoms into two distinct
sentences and treats them differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health, as may be provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts

can impair the right to travel only on the grounds of "national
security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted

to mean that while the liberty of travel may be impaired even
without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as may be
provided by law," a limitive phrase which did not appear in the 1973
text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition,
1987, p. 263). Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international travel
imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel
upon application of an interested party (See Salonga vs. Hermoso
& Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA
121).

Article III, Section 6 of the 1987 Constitution should by no means

be construed as delimiting the inherent power of the Courts to use
all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred
on a Court or judicial officer, all auxillary writs, process and other
means necessary to carry it into effect may be employed by such
Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of

Appeals, et al. (supra), to the effect that the condition imposed
upon an accused admitted to bail to make himself available at all
times whenever the Court requires his presence operates as a valid
restriction on the right to travel no longer holds under the 1987
Constitution, is far from tenable. The nature and function of a bail
bond has remained unchanged whether under the 1935, the 1973,
or the 1987 Constitution. Besides, the Manotoc ruling on that point
was but a re-affirmation of that laid down long before in People v.
Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has

violated the conditions thereof by failing to appear before the Court
when required. Warrants for his arrest have been issued. Those
orders and processes would be rendered nugatory if an accused
were to be allowed to leave or to remain, at his pleasure, outside
the territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing his
departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in
accordance with law. The offended party in any criminal proceeding
is the People of the Philippines. It is to their best interest that
criminal prosecutions should run their course and proceed to finality
without undue delay, with an accused holding himself amenable at
all times to Court Orders and processes.

551
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented
by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,
SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL
RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National Defense
and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of
eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their return
to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino
said:
In the interest of the safety of those who will take the death of Mr.
Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of
Ferdinand E. Marcos will not be allowed to be brought to our country
until such time as the government, be it under this administration
or the succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning to
the Philippines is to deny them not only the inherent right of citizens
to return to their country of birth but also the protection of the
Constitution and all of the rights guaranteed to Filipinos under the
Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former
President Marcos. Thus, petitioners prayed that the Court
reconsider its decision, order respondents to issue the necessary
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R.
Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc
and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar
the return of the remains of Mr. Marcos, and the other petitioners,
to the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label
'right to return', including the label 'return of Marcos' remains, is in
reality or substance a 'right' to destabilize the country, a 'right' to
hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion
for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
552
1. It must be emphasized that as in all motions for reconsideration,
the burden is upon the movants, petitioner herein, to show that
there are compelling reasons to reconsider the decision of the
Court.
2. After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario under
which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed
to provide a catalytic effect, have not been shown to have ceased.
On the contrary, instead of erasing fears as to the destabilization
that will be caused by the return of the Marcoses, Mrs. Marcos
reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos, not
Mrs. Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts of the
world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in
the Constitution is nothing new. This is recognized under the U.S.
Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be
vested in a President of the United States of America." In Alexander
Hamilton's widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow
it in [sections] 2 and 3. Hamilton stressed the difference between
the sweeping language of article II, section 1, and the conditional
language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections
2 and 31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of execution
power; leaving the rest to flow from the general grant of that
power, interpreted in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme Court — accepted
Hamilton's proposition, concluding that the federal executive,
unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional text:
the executive power was given in general terms, strengthened by
specific terms where emphasis was regarded as appropriate, and
was limited by direct expressions where limitation was needed. . ."
The language of Chief Justice Taft in Myers makes clear that the
constitutional concept of inherent power is not a synonym for power
without limit; rather, the concept suggests only that not all powers
granted in the Constitution are themselves exhausted by internal
enumeration, so that, within a sphere properly regarded as one of
"executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-
159 (1978).]
And neither can we subscribe to the view that a recognition of the
President's implied or residual powers is tantamount to setting the
stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President
under the 1973 Constitution to legislate pursuant to Amendment
No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there

exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders,
or letters of instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President

under the 1987 Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President
of the specific power of legislation.

4. Among the duties of the President under the Constitution, in

compliance with his (or her) oath of office, is to protect and promote
the interest and welfare of the people. Her decision to bar the return
of the Marcoses and subsequently, the remains of Mr. Marcos at the
present time and under present circumstances is in compliance with
this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving
at this decision, the Court will not enjoin the implementation of this
decision.

ACCORDINGLY, the Court resolved to DENY the Motion for

Reconsideration for lack of merit.

553
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS,
INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and
Employment, and TOMAS D. ACHACOSO, as Administrator of
the Philippine Overseas Employment
Administration, respondents.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc.
(PASEI, for short), a firm "engaged principally in the recruitment of
Filipino workers, male and female, for overseas
placement," 1 challenges the Constitutional validity of Department
Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO
DOMESTIC AND HOUSEHOLD WORKERS," in this petition for
certiorari and prohibition. Specifically, the measure is assailed for
"discrimination against males or females;" 2 that it "does not apply
to all Filipino workers but only to domestic helpers and females with
similar skills;" 3 and that it is violative of the right to travel. It is
held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article
XIII, of the Constitution, providing for worker participation "in
policy and decision-making processes affecting their rights and
benefits as may be provided by law." 4 Department Order No. 1, it
is contended, was passed in the absence of prior consultations. It
is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable injury"
that PASEI members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the
respondents Secretary of Labor and Administrator of the Philippine
Overseas Employment Administration, filed a Comment informing
the Court that on March 8, 1988, the respondent Labor Secretary
lifted the deployment ban in the states of Iraq, Jordan, Qatar,
Canada, Hongkong, United States, Italy, Norway, Austria, and
Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the
Philippine State.
It is admitted that Department Order No. 1 is in the nature of a
police power measure. The only question is whether or not it is valid
under the Constitution.
The concept of police power is well-established in this jurisdiction.
It has been defined as the "state authority to enact legislation that
may interfere with personal liberty or property in order to promote
the general welfare." 5 As defined, it consists of (1) an imposition
of restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been,
purposely, veiled in general terms to underscore its all-
comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it
does not owe its origin to the Charter. Along with the taxing power
and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has
enabled it to perform the most vital functions of governance.
Marshall, to whom the expression has been credited, 7 refers to it
succinctly as the plenary power of the State "to govern its
citizens." 8
554
"The police power of the State ... is a power coextensive with self-
protection, and it is not inaptly termed the "law of overwhelming
necessity." It may be said to be that inherent and plenary power in
the State which enables it to prohibit all things hurtful to the
comfort, safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According
to Fernando, it is "rooted in the conception that men in organizing
the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." 10 Significantly,
the Bill of Rights itself does not purport to be an absolute guaranty
of individual rights and liberties "Even liberty itself, the greatest of
all rights, is not unrestricted license to act according to one's
will." 11 It is subject to the far more overriding demands and
requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its
own limitations. For all its awesome consequences, it may not be
exercised arbitrarily or unreasonably. Otherwise, and in that event,
it defeats the purpose for which it is exercised, that is, to advance
the public good. Thus, when the power is used to further private
interests at the expense of the citizenry, there is a clear misuse of
the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the
absence of clear and convincing evidence to the contrary, the
presumption logically stands.
The petitioner has shown no satisfactory reason why the contested
measure should be nullified. There is no question that Department
Order No. 1 applies only to "female contract workers," 14 but it does
not thereby make an undue discrimination between the sexes. It is
well-settled that "equality before the law" under the
Constitution 15does not import a perfect Identity of rights among all
men and women. It admits of classifications, provided that (1) such
classifications rest on substantial distinctions; (2) they are germane
to the purposes of the law; (3) they are not confined to existing
conditions; and (4) they apply equally to all members of the same
class. 16
The Court is satisfied that the classification made-the preference
for female workers — rests on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy
plight that has befallen our female labor force abroad, especially
domestic servants, amid exploitative working conditions marked
by, in not a few cases, physical and personal abuse. The sordid
tales of maltreatment suffered by migrant Filipina workers, even
rape and various forms of torture, confirmed by testimonies of
returning workers, are compelling motives for urgent Government
action. As precisely the caretaker of Constitutional rights, the Court
is called upon to protect victims of exploitation. In fulfilling that
duty, the Court sustains the Government's efforts.
The same, however, cannot be said of our male workers. In the first
place, there is no evidence that, except perhaps for isolated
instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the
Government should act similarly with respect to male workers. The
Court, of course, is not impressing some male chauvinistic notion
that men are superior to women. What the Court is saying is that
it was largely a matter of evidence (that women domestic workers
are being ill-treated abroad in massive instances) and not upon
some fanciful or arbitrary yardstick that the Government acted in
this case. It is evidence capable indeed of unquestionable
demonstration and evidence this Court accepts. The Court cannot,
however, say the same thing as far as men are concerned. There
is simply no evidence to justify such an inference. Suffice it to state,
then, that insofar as classifications are concerned, this Court is
content that distinctions are borne by the evidence. Discrimination
in this case is justified.
As we have furthermore indicated, executive determinations are
generally final on the Court. Under a republican regime, it is the
executive branch that enforces policy. For their part, the courts
decide, in the proper cases, whether that policy, or the manner by
which it is implemented, agrees with the Constitution or the laws,
but it is not for them to question its wisdom. As a co-equal body,
the judiciary has great respect for determinations of the Chief
Executive or his subalterns, especially when the legislature itself
has specifically given them enough room on how the law should be
effectively enforced. In the case at bar, there is no gainsaying the
fact, and the Court will deal with this at greater length shortly, that
Department Order No. 1 implements the rule-making powers
granted by the Labor Code. But what should be noted is the fact
that in spite of such a fiction of finality, the Court is on its own
persuaded that prevailing conditions indeed call for a deployment
ban.
There is likewise no doubt that such a classification is germane to
the purpose behind the measure. Unquestionably, it is the avowed
objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers" 17 this Court has no quarrel that
in the midst of the terrible mistreatment Filipina workers have
suffered abroad, a ban on deployment will be for their own good
and welfare.
The Order does not narrowly apply to existing conditions. Rather,
it is intended to apply indefinitely so long as those conditions exist.
This is clear from the Order itself ("Pending review of the
administrative and legal measures, in the Philippines and in the
host countries . . ."18), meaning to say that should the authorities
arrive at a means impressed with a greater degree of permanency,
the ban shall be lifted. As a stop-gap measure, it is possessed of a
necessary malleability, depending on the circumstances of each
case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension in
countries where there are:
1. Bilateral agreements or understanding with the Philippines,
and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable
to all female domestic overseas workers. That it does not apply to
"all Filipina workers" 20 is not an argument for unconstitutionality.
Had the ban been given universal applicability, then it would have
been unreasonable and arbitrary. For obvious reasons, not all of
them are similarly circumstanced. What the Constitution prohibits
is the singling out of a select person or group of persons within an
existing class, to the prejudice of such a person or group or
resulting in an unfair advantage to another person or group of
persons. To apply the ban, say exclusively to workers deployed by
A, but not to those recruited by B, would obviously clash with the
equal protection clause of the Charter. It would be a classic case of
what Chase refers to as a law that "takes property from A and gives
it to B." 21 It would be an unlawful invasion of property rights and
freedom of contract and needless to state, an invalid
act. 22 (Fernando says: "Where the classification is based on such
distinctions that make a real difference as infancy, sex, and stage
of civilization of minority groups, the better rule, it would seem, is
to recognize its validity only if the young, the women, and the
cultural minorities are singled out for favorable treatment. There
would be an element of unreasonableness if on the contrary their
status that calls for the law ministering to their needs is made the
basis of discriminatory legislation against them. If such be the case,
555
it would be difficult to refute the assertion of denial of equal
protection." 23 In the case at bar, the assailed Order clearly accords
protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total
ban on overseas deployment. From scattered provisions of the
Order, it is evident that such a total ban has hot been
contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers
and workers of similar skills defined herein to the following [sic] are
authorized under these guidelines and are exempted from the
suspension.
5.1 Hirings by immediate members of the family of Heads of State
and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly
accredited international organizations.
5.4 Hirings by employers in countries with whom the Philippines
have [sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR
SKILLS--Vacationing domestic helpers and/or workers of similar
skills shall be allowed to process with the POEA and leave for
worksite only if they are returning to the same employer to finish
an existing or partially served employment contract. Those workers
returning to worksite to serve a new employer shall be covered by
the suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension in
countries where there are:
1. Bilateral agreements or understanding with the Philippines,
and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel
does not impair the right. The right to travel is subject, among other
things, to the requirements of "public safety," "as may be provided
by law." 25 Department Order No. 1 is a valid implementation of the
Labor Code, in particular, its basic policy to "afford protection to
labor," 26 pursuant to the respondent Department of Labor's rule-
making authority vested in it by the Labor Code. 27 The petitioner
assumes that it is unreasonable simply because of its impact on the
right to travel, but as we have stated, the right itself is not absolute.
The disputed Order is a valid qualification thereto.
Neither is there merit in the contention that Department Order No.
1 constitutes an invalid exercise of legislative power. It is true that
police power is the domain of the legislature, but it does not mean
that such an authority may not be lawfully delegated. As we have
mentioned, the Labor Code itself vests the Department of Labor
and Employment with rulemaking powers in the enforcement
whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker
participation "in policy and decision-making processes affecting
their rights and benefits" 29 is not well-taken. The right granted by
this provision, again, must submit to the demands and necessities
of the State's power of regulation.

The Constitution declares that:

Sec. 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all. 30

"Protection to labor" does not signify the promotion of employment

alone. What concerns the Constitution more paramountly is that
such an employment be above all, decent, just, and humane. It is
bad enough that the country has to send its sons and daughters to
strange lands because it cannot satisfy their employment needs at
home. Under these circumstances, the Government is duty-bound
to insure that our toiling expatriates have adequate protection,
personally and economically, while away from home. In this case,
the Government has evidence, an evidence the petitioner cannot
seriously dispute, of the lack or inadequacy of such protection, and
as part of its duty, it has precisely ordered an indefinite ban on
deployment.

The Court finds furthermore that the Government has not

indiscriminately made use of its authority. It is not contested that
it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.

The non-impairment clause of the Constitution, invoked by the

petitioner, must yield to the loftier purposes targetted by the
Government. 31 Freedom of contract and enterprise, like all other
freedoms, is not free from restrictions, more so in this jurisdiction,
where laissez faire has never been fully accepted as a controlling
economic way of life.

This Court understands the grave implications the questioned Order

has on the business of recruitment. The concern of the
Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits that
suffer as a result of Government regulation. The interest of the
State is to provide a decent living to its citizens. The Government
has convinced the Court in this case that this is its intent. We do
not find the impugned Order to be tainted with a grave abuse of
discretion to warrant the extraordinary relief prayed for.

WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.

556
G.R. No. 197930, April 17, 2018
EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G.
SEE, PETITIONERS, VS. HON. LEILA M. DE LIMA, IN HER
CAPACITY AS SECRETARY OF JUSTICE, AND RICARDO V.
PARAS III, IN HIS CAPACITY AS CHIEF STATE COUNSEL,
CRISTINO L. NAGUIAT, JR. AND THE BUREAU OF
IMMIGRATION, RESPONDENTS.
[G.R. No. 199034]
MA. GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. HON.
LEILA M. DE LIMA, AS SECRETARY OF THE DEPARTMENT OF
JUSTICE AND RICARDO A. DAVID, JR., AS COMMISSIONER
OF THE BUREAU OF IMMIGRATION, RESPONDENTS.
[G.R. No. 199046]
JOSE MIGUEL T. ARROYO, PETITIONER, VS. HON. LEILA M.
DE LIMA, AS SECRETARY OF THE DEPARTMENT OF JUSTICE
AND RICARDO V. PARAS III, AS CHIEF STATE COUNSEL,
DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., IN
HIS CAPACITY AS COMMISSIONER, BUREAU OF
IMMIGRATION, RESPONDENTS.
DECISION
REYES, JR., J:
These consolidated Petitions for Certiorari and Prohibition with
Prayer for the Issuance of Temporary Restraining Orders (TRO)
and/or Writs of Preliminary Injunction Under Rule 65 of the Rules
of Court assail the constitutionality of Department of Justice (DOJ)
Circular No. 41, series of 2010, otherwise known as the
"Consolidated Rules and Regulations Governing Issuance and
Implementation of Hold Departure Orders, Watchlist Orders and
Allow Departure Orders" on the ground that it infringes on the
constitutional right to travel.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek
to annul and set aside the following orders issued by the former
DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular
No. 41, thus:
1. Watchlist Order No. ASM-11-237 dated August 9, 2011;[1]
2. Amended Watchlist Order No. 2011-422 dated September 6,
2011;[2] and
3. Watchlist Order No. 2011-573 dated October 27, 2011.[3]
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo
(GMA) further seeks the invalidation of the Order[4] dated
November 8, 2011, denying her application for an Allow-Departure
Order (ADO).
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino
(Efraim), Erwin F. Genuino (Erwin) and Sheryl Genuino-See
(Genuinos) pray for the nullification of the Hold-Departure
Order[5] (HDO) No. 2011-64 dated July 22, 2011 issued against
them.
Antecedent Facts
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued
DOJ Circular No. 17, prescribing rules and regulations governing
the issuance of HDOs. The said issuance was intended to restrain
the indiscriminate issuance of HDOs which impinge on the people's
right to travel.
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued
DOJ Circular No. 18, prescribing rules and regulations governing
the issuance and implementation of watchlist orders. In particular,
it provides for the power of the DOJ Secretary to issue a Watchlist
Order (WLO) against persons with criminal cases pending
preliminary investigation or petition for review before the DOJ.
557
Further, it states that the DOJ Secretary may issue an ADO to a
person subject of a WLO who intends to leave the country for some
exceptional reasons.[6] Even with the promulgation of DOJ Circular
No. 18, however, DOJ Circular No. 17 remained the governing rule
on the issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued
the assailed DOJ Circular No. 41, consolidating DOJ Circular Nos.
17 and 18, which will govern the issuance and implementation of
HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No. 41
expressly repealed all rules and regulations contained in DOJ
Circular Nos. 17 and 18, as well as all instructions, issuances or
orders or parts thereof which are inconsistent with its provisions.
After the expiration of GMA's term as President of the Republic of
the Philippines and her subsequent election as Pampanga
representative, criminal complaints were filed against her before
the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria
Macapagal-Arroyo, et al., for plunder;
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria
Macapagal-Arroyo, et al., for plunder, malversation and/or illegal
use of OWWA funds, graft and corruption, violation of the Omnibus
Election Code (OEC), violation of the Code of Conduct and Ethical
Standards for Public Officials, and qualified theft;[8] and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria
Macapagal-Arroyo, et al., for plunder, malversation, and/or illegal
use of public funds, graft and corruption, violation of the OEC,
violation of the Code of Conduct and Ethical Standards for Public
Officials and qualified theft.[9]
In view of the foregoing criminal complaints, De Lima issued DOJ
WLO No. 2011-422 dated August 9, 2011 against GMA pursuant to
her authority under DOJ Circular No. 41. She also ordered for the
inclusion of GMA's name in the Bureau of Immigration (BI)
watchlist.[10] Thereafter, the BI issued WLO No. ASM-11-
237,[11] implementing De Lima's order.
On September 6, 2011, De Lima issued DOJ Amended WLO No.
2011-422 against GMA to reflect her full name "Ma. Gloria M.
Macapagal-Arroyo" in the BI Watchlist.[12] WLO No. 2011-422, as
amended, is valid for a period of 60 days, or until November 5,
2011, unless sooner terminated or otherwise extended. This was
lifted in due course by De Lima, in an Order dated November 14,
2011, following the expiration of its validity.[13]
Meanwhile, on October 20, 2011, two criminal complaints for
Electoral Sabotage and Violation of the OEC were filed against GMA
and her husband, Jose Miguel Arroyo (Miguel Arroyo), among
others, with the DOJ-Commission on Elections (DOJ-COMELEC)
Joint Investigation Committee on 2004 and 2007 Election
Fraud,[14] specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact
Finding Team vs. Gloria Macapagal-Arroyo et al., (for the Province
of Maguindanao), for electoral sabotage/violation of the OEC and
COMELEC Rules and Regulations;[15] and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel
III vs. Gloria Macapagal-Arroyo, et al., for electoral sabotage.[16]
Following the filing of criminal complaints, De Lima issued DOJ WLO
No. 2011-573 against GMA and Miguel Arroyo on October 27, 2011,
with a validity period of 60 days, or until December 26, 2011,
unless sooner terminated or otherwise extended.[17]
In three separate letters dated October 20, 2011, October 21,
2011, and October 24, 2011, GMA requested for the issuance of an
ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may
be able to seek medical attention from medical specialists abroad
for her hypoparathyroidism and metabolic bone mineral disorder.
She mentioned six different countries where she intends to undergo
consultations and treatments: United States of America, Germany,
Singapore, Italy, Spain and Austria.[18] She likewise undertook to
return to the Philippines, once her treatment abroad is completed,
and participate in the proceedings before the DOJ.[19] In support of
her application for ADO, she submitted the following
documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker
Feliciano Belmonte, Jr. to the Secretary of Foreign Affairs, of her
Travel Authority;
2. First Endorsement dated October 19, 2011[20] of Artemio A.
Adasa, OIC Secretary General of the House of Representatives, to
the Secretary of Foreign Affairs, amending her Travel Authority to
include travel to Singapore, Spain and Italy;
3. Affidavit dated October 21, 2011,[21] stating the purpose of travel
to Singapore, Germany and Austria;
4. Medical Abstract dated October 22, 2011,[22] signed by Dr.
Roberto Mirasol (Dr. Mirasol);
5. Medical Abstract dated October 24, 2011,[23] signed by Dr. Mario
Ver;
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and
Associates, detailing the schedule of consultations with doctors in
Singapore.
To determine whether GMA's condition necessitates medical
attention abroad, the Medical Abstract prepared by Dr. Mirasol was
referred to then Secretary of the Department of Health, Dr. Enrique
Ona (Dr. Ona) for his expert opinion as the chief government
physician. On October 28, 2011, Dr. Ona, accompanied by then
Chairperson of the Civil Service Commission, Francisco Duque,
visited GMA at her residence in La Vista Subdivision, Quezon City.
Also present at the time of the visit were GMA's attending doctors
who explained her medical condition and the surgical operations
conducted on her. After the visit, Dr. Ona noted that "Mrs. Arroyo
is recuperating reasonably well after having undergone a series of
three major operations."
On November 8, 2011, before the resolution of her application for
ADO, GMA filed the present Petition for Certiorari and Prohibition
under Rule 65 of the Rules of Court with Prayer for the Issuance of
a TRO and/or Writ of Preliminary Injunction, docketed as G.R. No.
199034, to annul and set aside DOJ Circular No. 41 and WLOs
issued against her for allegedly being unconstitutional.[25]
A few hours thereafter, Miguel Arroyo filed a separate Petition
for Certiorari, and Prohibition under the same rule, with Prayer for
the Issuance of a TRO and/or a Writ of Preliminary Injunction,
likewise assailing the constitutionality of DOJ Circular No. 41 and
WLO No. 2011-573. His petition was docketed as G.R. No.
199046.[26]
Also, on November 8, 2011, De Lima issued an Order,[27] denying
GMA's application for an ADO, based on the following grounds:
First, there appears to be discrepancy on the medical condition of
the applicant as stated in her affidavit, on the other hand, and the
medical abstract of the physicians as well as her physician's
statements to Secretary Ona during the latter's October 28, 2011
visit to the Applicant, on the other.
xxxx
Second, based on the medical condition of Secretary Ona, there
appears to be no urgent and immediate medical emergency
situation for Applicant to seek medical treatment abroad, x x x.
xxxx
Third, Applicant lists several countries as her destination, some of
which were not for purposes of medical consultation, but for
attending conferences, x x x.
xxxx
558
Fourth, while the Applicant's undertaking is to return to the
Philippines upon the completion of her medical treatment, this
means that her return will always depend on said treatment, which,
based on her presentation of her condition, could last indefinitely,
Fifth, x x x x. Applicant has chosen for her destination five (5)
countries, namely, Singapore, Germany, Austria, Spain and Italy,
with which the Philippines has no existing extradition treaty, x x x.
xxxx
IN VIEW OF THE FOREGOING, the application for an Allow
Departure Order (ADO) of Congresswoman MA. GLORIA M.
MACAPAGAL-ARROYO is hereby DENIED for lack of merit.
SO ORDERED.[28]
On November 9, 2011, De Lima, together with her co-respondents,
Ricardo V. Paras, III, Chief State Counsel of the DOJ and Ricardo
A. David, Jr., who was then BI Commissioner, (respondents) filed
a Very Urgent Manifestation and Motion[29] in G.R. Nos. 199034 and
199046, praying (1) that they be given a reasonable time to
comment on the petitions and the applications for a TRO and/or
writ of preliminary injunction before any action on the same is
undertaken by the Court; (2) that the applications for TRO and/or
writ of preliminary injunction be denied for lack of merit, and; (3)
that the petitions be set for oral arguments after the filing of
comments thereto.[30]
On November 13, 2011, GMA filed a Supplemental Petition[31] which
included a prayer to annul and set aside the Order dated November
8, 2011, denying her application for ADO. On the following day,
GMA filed her Comment/Opposition[32] to the respondents' Very
Urgent Manifestation and Motion dated November 9, 2011, in G.R.
No. 199034.
On November 15, 2011, the Court issued a Resolution,[33] ordering
the consolidation of G.R. Nos. 199034 and 199046, and requiring
the respondents to file their comment thereto not later than
November 18, 2011. The Court likewise resolved to issue a TRO in
the consolidated petitions, enjoining the respondents from
enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-
11-237 dated August 9, 2011, 2011-422 dated September 6, 2011,
and 2011-573 dated October 27, 2011, subject to the following
conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos
(P2,000,000.00) payable to this Court within five (5) days from
notice hereof. Failure to post the bond within the aforesaid period
will result in the automatic lifting of the temporary restraining
order;
(ii) The petitioners shall appoint a legal representative common to
both of them who will receive subpoena, orders and other legal
processes on their behalf during their absence. The petitioners shall
submit the name of the legal representative, also within five (5)
days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where
they will be traveling, the petitioners shall inform said embassy or
consulate by personal appearance or by phone of their whereabouts
at all times;[34]
On the very day of the issuance of the TRO, the petitioners tendered
their compliance[35] with the conditions set forth in the Resolution
dated November 15, 2011 of the Court and submitted the following:
(1) a copy of Official Receipt No. 0030227-SC-EP, showing the
payment of the required cash bond of Two Million Pesos
(P2,000,000.00);[36] (2) certification from the Fiscal and
Management and Budget Office of the Supreme Court, showing that
the cash bond is already on file with the office;[37] (3) special
powers of attorney executed by the petitioners, appointing their
respective lawyers as their legal representatives;[38] and (4) an
undertaking to report to the nearest consular office in the countries
where they will travel.[39]
At around 8:00 p.m. on the same day, the petitioners proceeded to
the Ninoy Aquino International Airport (NAIA), with an aide-de-
camp and a private nurse, to take their flights to Singapore.
However, the BI officials at NAIA refused to process their travel
documents which ultimately resulted to them not being able to join
their flights.[40]
On November 17, 2011, GMA, through counsel, filed an Urgent
Motion[41] for Respondents to Cease and Desist from Preventing
Petitioner GMA from Leaving the Country. She strongly emphasized
that the TRO issued by the Court was immediately executory and
that openly defying the same is tantamount to gross disobedience
and resistance to a lawful order of the Court.[42] Not long after,
Miguel Arroyo followed through with an Urgent
Manifestation,[43] adopting and repleading all the allegations in
GMA's motion.
On November 16, 2011, the respondents filed a Consolidated
Urgent Motion for Reconsideration and/or to Lift TRO,[44] praying
that the Court reconsider and set aside the TRO issued in the
consolidated petitions until they are duly heard on the merits. In
support thereof, they argue that the requisites for the issuance of
a TRO and writ of preliminary injunction were not established by
the petitioners. To begin with, the petitioners failed to present a
clear and mistakable right which needs to be protected by the
issuance of a TRO. While the petitioners anchor their right in
esse on the right to travel under Section 6, Article III of the 1987
Constitution, the said right is not absolute. One of the limitations
on the right to travel is DOJ Circular No. 41, which was issued
pursuant to the rule-making powers of the DOJ in order to keep
individuals under preliminary investigation within the jurisdiction of
the Philippine criminal justice system. With the presumptive
constitutionality of DOJ Circular No. 41, the petitioners cannot claim
that they have a clear and unmistakable right to leave the country
as they are the very subject of the mentioned issuance. Moreover,
the issuance of a TRO will effectively render any judgment on the
consolidated petitions moot and academic. No amount of judgment
can recompense the irreparable injury that the state is bound to
suffer if the petitioners are permitted to leave the Philippine
jurisdiction.[46]
On November 18, 2011, the Court issued a Resolution,[47] requiring
De Lima to show cause why she should not be disciplinarily dealt
with or held in contempt of court for failure to comply with the TRO.
She was likewise ordered to immediately comply with the TRO by
allowing the petitioners to leave the country. At the same time, the
Court denied the Consolidated Urgent Motion for Reconsideration
and/or to Lift TRO dated November 16, 2011 filed by the Office of
the Solicitor General.[48]
On even date, the COMELEC, upon the recommendation of the Joint
DOJ-COMELEC Preliminary Investigation Committee, filed an
information for the crime of electoral sabotage under Section 43(b)
of Republic Act (R.A.) No. 9369 against GMA, among others, before
the Regional Trial Court (RTC) of Pasay City, which was docketed
as R-PSY-11-04432-CR[49] and raffled to Branch 112. A warrant of
arrest for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA,
the respondents filed an Urgent Manifestation with Motion to Lift
TRO.[50] They argue that the filing of the information for electoral
sabotage against GMA is a supervening event which warrants the
lifting of the TRO issued by this Court. They asseverate that the
filing of the case vests the trial court the jurisdiction to rule on the
disposition of the case. The issue therefore on the validity of the
assailed WLOs should properly be raised and threshed out before
the RTC of Pasay City where the criminal case against GMA is
pending, to the exclusion of all other courts.[51]
Also, on November 18, 2011, the COMELEC issued a Resolution,
dismissing the complaint for violation of OEC and electoral sabotage
against Miguel Arroyo, among others, which stood as the basis for
the issuance of WLO No. 2011-573. Conformably, the DOJ issued
an Order dated November 21, 2011,[52] lifting WLO No. 2011-573
against Miguel Arroyo and ordering for the removal of his name in
the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions
proceeded as scheduled on November 22, 2011, despite requests
from the petitioners' counsels for an earlier date. Upon the
559
conclusion of the oral arguments on December 1, 2011, the parties
were required to submit their respective memoranda.[53]
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22,
2011[54] was issued against Genuinos, among others, after criminal
complaints for Malversation, as defined under Article 217 of the
Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h)
and (i) of R.A. No. 3019 were filed against them by the Philippine
Amusement and Gaming Corporation (PAGCOR), through its
Director, Eugene Manalastas, with the DOJ on June 14, 2011, for
the supposed diversion of funds for the film "Baler." This was
followed by the filing of another complaint for Plunder under R.A.
No. 7080, Malversation under Article 217 of the RPC and Violation
of Section 3 of R.A. No. 3019, against the same petitioners, as well
as members and incorporators of BIDA Production, Inc. Wildformat,
Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds
into the coffers of BIDA entities. Another complaint was thereafter
filed against Efraim and Erwin was filed before the Office of the
Ombudsman for violation of R.A. No. 3019 for allegedly releasing
PAGCOR funds intended for the Philippine Sports Commission
directly to the Philippine Amateur Swimming Association, Inc.[55] In
a Letter[56] dated July 29, 2011 addressed to Chief State Counsel
Ricardo Paras, the Genuinos, through counsel, requested that the
HDO against them be lifted. This plea was however denied in a
Letter[57] dated August 1, 2011 which prompted the institution of
the present petition by the Genuinos. In a Resolution[58] dated April
21, 2015, the Court consolidated the said petition with G.R. Nos.
199034 and 199046.
The Court, after going through the respective memoranda of the
parties and their pleadings, sums up the issues for consideration as
follows:
I
WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL
REVIEW;
II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR
NO. 41; and
III
WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ
SECRETARY GUILTY OF CONTEMPT OF COURT.
Ruling of the Court
The Court may exercise its power of judicial review despite the filing
of information for electoral sabotage against GMA. It is the
respondents' contention that the present petitions should be
dismissed for lack of a justiciable controversy. They argue that the
instant petitions had been rendered moot and academic by (1) the
expiration of the WLO No. 422 dated August 9, 2011, as amended
by the Order dated September 6, 2011;[59] (2) the filing of an
information for electoral sabotage against GMA,[60] and; (3) the
lifting of the WLO No. 2011-573 dated November 14, 2011 against
Miguel Arroyo and the subsequent deletion of his name from the BI
watchlist after the COMELEC en banc dismissed the case for
electoral sabotage against him.
The power of judicial review is articulated in Section 1, Article VIII
of the 1987 Constitution which reads:
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.[62]
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result
of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.[63]
Except for the first requisite, there is no question with respect to
the existence of the three (3) other requisites. Petitioners have
the locus standi to initiate the petition as they claimed to have been
unlawfully subjected to restraint on their right to travel owing to
the issuance of WLOs against them by authority of DOJ Circular No.
41. Also, they have contested the constitutionality of the
questioned issuances at the most opportune time.
The respondents, however, claim that the instant petitions have
become moot and academic since there is no longer any actual case
or controversy to resolve following the subsequent filing of an
information for election sabotage against GMA on November 18,
2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo
and the deletion of his name from the BI watchlist after the
dismissal of the complaint for electoral sabotage against him.
To be clear, "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."[64] When the issues have
been resolved or when the circumstances from which the legal
controversy arose no longer exist, the case is rendered moot and
academic. "A moot and academic case is one that ceases to present
a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value."[65]
The Court believes that the supervening events following the filing
of the instant petitions, while may have seemed to moot the instant
petitions, will not preclude it from ruling on the constitutional issues
raised by the petitioners. The Court, after assessing the necessity
and the invaluable gain that the members of the bar, as well as the
public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put to rest
the lingering constitutional questions that abound the assailed
issuance. This is not a novel occurrence as the Court, in a number
of occasions, took up cases up to its conclusion notwithstanding
claim of mootness.
In Evelio Javier vs. The Commission on Elections,[66] the Court so
emphatically stated, thus:
The Supreme Court is not only the highest arbiter of legal questions
but also the conscience of the government. The citizen comes to us
in quest of law but we must also give him justice. The two are not
always the same. There are times when we cannot grant the latter
because the issue has been settled and decision is no longer
possible according to the law. But there are also times when
although the dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice demands that we act
then, not only for the vindication of the outraged right, though
gone, but also for the guidance of and as a restraint upon the
future.[67]
In Prof. David vs. Pres. Macapagal-Arroyo,[68] the Court proceeded
in ruling on the constitutionality of Presidential Proclamation (PP)
No. 1017 in which GMA declared a state of national emergency, and
General Order No. 5 (G.O. No. 5), which ordered the members of
the Armed Forces of the Philippines and the Philippine National
Police to carry all necessary actions to suppress acts of terrorism
and lawless violence, notwithstanding the issuance of PP 1021
lifting both issuances. The Court articulated, thus:
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
560
these alleged illegal acts? These are the vital issues that must
be resolved in the present petitions. It must be stressed
that unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.
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; second, the exceptional
character of the situation and the paramount public interest is
involved; third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar,
and the public; and fourth, the case is capable of repetition yet
evading review.[69] (Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances that
warrant the Court's exercise of its power of judicial review. The
petitioners impute the respondents of violating their constitutional
right to travel through the enforcement of DOJ Circular No. 41.
They claim that the issuance unnecessarily places a restraint on the
right to travel even in the absence of the grounds provided in the
Constitution.
There is also no question that the instant petitions involved a
matter of public interest as the petitioners are not alone in this
predicament and there can be several more in the future who may
be similarly situated. It is not far fetched that a similar challenge to
the constitutionality of DOJ Circular No. 41 will recur considering
the thousands of names listed in the watch list of the DOJ, who may
brave to question the supposed illegality of the issuance. Thus, it is
in the interest of the public, as well as for the education of the
members of the bench and the bar, that this Court takes up the
instant petitions and resolves the question on the constitutionality
of DOJ Circular No. 41.
The Constitution is inviolable and supreme of all laws
We begin by emphasizing that the Constitution is the fundamental,
paramount and supreme law of the nation; it is deemed written in
every statute and contract.[70] If a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void
and has no effect.
The Constitution is a testament to the living democracy in this
jurisdiction. It contains the compendium of the guaranteed rights
of individuals, as well as the powers granted to and restrictions
imposed on government officials and instrumentalities. It is that
lone unifying code, an inviolable authority that demands utmost
respect and obedience.
The more precious gifts of democracy that the Constitution affords
us are enumerated in the Bill of Rights contained in Article III. In
particular, Section 1 thereof provides:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
The guaranty of liberty does not, however, imply unbridled license
for an individual to do whatever he pleases, for each is given an
equal right to enjoy his liberties, with no one superior over another.
Hence, the enjoyment of one's liberties must not infringe on anyone
else's equal entitlement.
Surely, the Bill of Rights operates as a protective cloak under which
the individual may assert his liberties. Nonetheless, "the Bill of
Rights itself does not purport to be an absolute guaranty of
individual rights and liberties. Even liberty itself, the greatest of all
rights, is not unrestricted license to act according to one's will. It is
subject to the far more overriding demands and requirements of
the greater number."[71]
It is therefore reasonable that in order to achieve communal peace
and public welfare, calculated limitations in the exercise of
individual freedoms are necessary. Thus, in many significant
provisions, the Constitution itself has provided for exceptions and
restrictions to balance the free exercise of rights with the equally
important ends of promoting common good, public order and public
safety.
The state's exercise of police power is also well-recognized in this
jurisdiction as an acceptable limitation to the exercise of individual
rights. In Philippine Association of Service Exporters, Inc. vs.
Drilon,[72] it was defined as the inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society. It is rooted in the conception that
men in organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend thereby
to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated
to ensure communal peace, safety, good order, and welfare.[73]
Still, it must be underscored that in a constitutional government
like ours, liberty is the rule and restraint the exception.[74] Thus,
restrictions in the exercise of fundamental liberties are heavily
guarded against so that they may not unreasonably interfere with
the free exercise of constitutional guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot
be deprived without due process of law.[75] It is part and parcel of
the guarantee of freedom of movement that the Constitution
affords its citizen. Pertinently, Section 6, Article III of the
Constitution provides:
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety or public
health, as maybe provided by law.
Liberty under the foregoing clause includes the right to choose
one's residence, to leave it whenever he pleases and to travel
wherever he wills.[76] Thus, in Zacarias Villavicencio vs. Justo
Lucban,[77] the Court held illegal the action of the Mayor of Manila
in expelling women who were known prostitutes and sending them
to Davao in order to eradicate vices and immoral activities
proliferated by the said subjects. It was held that regardless of the
mayor's laudable intentions, no person may compel another to
change his residence without being expressly authorized by law or
regulation.
It is apparent, however, that the right to travel is not absolute.
There are constitutional, statutory and inherent limitations
regulating the right to travel. Section 6 itself provides that the right
to travel may be impaired only in the interest of national security,
public safety or public health, as may be provided by law.
In Silverio vs. Court of Appeals,[78] the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted
to mean that while the liberty of travel may be impaired even
without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as
may be provided by law," a limitive phrase which did not appear
in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I,
First Edition, 1987, p. 263). Apparently, the phraseology in the
1987 Constitution was a reaction to the ban on international travel
imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel
upon application of an interested party.[79] (Emphasis ours)
Clearly, under the provision, there are only three considerations
that may permit a restriction on the right to travel: national
security, public safety or public health. As a further requirement,
there must be an explicit provision of statutory law or the Rules of
Court[80] providing for the impairment. The requirement for a
legislative enactment was purposely added to prevent inordinate
restraints on the person's right to travel by administrative officials
who may be tempted to wield authority under the guise of national
security, public safety or public health. This is in keeping with the
principle that ours is a government of laws and not of men and also
with the canon that provisions of law limiting the enjoyment of
561
liberty should be construed against the government and in favor of
the individual.[81]
The necessity of a law before a curtailment in the freedom of
movement may be permitted is apparent in the deliberations of the
members of the Constitutional Commission. In particular, Fr.
Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated
provisions, it says that the phrase "and changing the same" is taken
from the 1935 version; that is, changing the abode. The addition of
the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that,
whether the rights be impaired on order of a court or without the
order of a court, the impairment must be in accordance with the
prescriptions of law; that is, it is not left to the discretion of any
public officer.[82]
It is well to remember that under the 1973 Constitution, the right
to travel is compounded with the liberty of abode in Section 5
thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and of
travel shall not, be impaired except upon lawful order of the court,
or when necessary in the interest of national security, public safety,
or public health. (Emphasis ours)
The provision, however, proved inadequate to afford protection to
ordinary citizens who were subjected to "hamletting" under the
Marcos regime.[83] Realizing the loophole in the provision, the
members of the Constitutional Commission agreed that a safeguard
must be incorporated in the provision in order to avoid this
unwanted consequence. Thus, the Commission meticulously
framed the subject provision in such a manner that the right cannot
be subjected to the whims of any administrative officer. In
addressing the loophole, they found that requiring the authority of
a law most viable in preventing unnecessary intrusion in the
freedom of movement, viz.:
MR. NOLLEDO. x x x x
My next question is with respect to Section 5, lines 8 to 12 of page
2. It says here that the liberty of abode shall not be impaired except
upon lawful order of the court or - underscoring the word "or" -
when necessary in the interest of national security, public safety or
public health. So, in the first part, there is the word "court"; in the
second part, it seems that the question rises as to who determines
whether it is in the interest of national security, public safety, or
public health. May it be determined merely by administrative
authorities?
FR. BERNAS. The understanding we have of this is that, yes, it may
be determined by administrative authorities provided that they act,
according to line 9, within the limits prescribed by law. For
instance when this thing came up; what was in mind were passport
officers. If they want to deny a passport on the first instance, do
they have to go to court? The position is, they may deny a passport
provided that the denial is based on the limits prescribed by law.
The phrase "within the limits prescribed by law" is something
which is added here. That did not exist in the old provision.[84]
During the discussions, however, the Commission realized the
necessity of separating the concept of liberty of abode and the right
to travel in order to avoid untoward results. Ultimately, distinct
safeguards were laid down which will protect the liberty of abode
and the right to travel separately, viz.:
MR. TADEO. Mr. Presiding Officer, anterior amendment on Section
5, page 2, line 11. Iminumungkahi kong alisin iyong mga salitang
nagmumula sa "or" upang maiwasan natin ang walang
pakundangang paglabag sa liberty of abode sa ngalan ng national
security at pagsasagawa ng "hamletting" ng kung sinu-sino na
lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting"
upon lawful order of the court. x x x.
xxxx
MR. RODRIGO. Aside from that, this includes the right to travel?
FR. BERNAS. Yes.
MR. RODRIGO. And there are cases when passports may not be
granted or passports already granted may be cancelled. If the
amendment is approved, then passports may not be cancelled
unless it is ordered by the court. Is that the intention? x x x x
FR. BERNAS. Yes
MR. RODRIGO. But another right is involved here and that is to
travel.
SUSPENSION OF SESSION
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so
that we can separate the liberty of abode and or changing the same
from the right to travel, because they may necessitate different
provisions.
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.
xxxx
RESUMPTION OF SESSION
xxxx
THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is
recognized
The session is resumed.
FR. BERNAS. The proposal is amended to read:
The liberty of abode and of changing the same within the limits
prescribed by law, shall not be impaired except upon lawful order
of the court. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED
EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC
SAFETY, OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The Committee has
accepted the amendment, as amended. Is there any objection?
(Silence) The Chair hears none; the amendment, as amended, is
approved.[85]
It is clear from the foregoing that the liberty of abode may only be
impaired by a lawful order of the court and, on the one hand, the
right to travel may only be impaired by a law that concerns national
security, public safety or public health. Therefore, when the
exigencies of times call for a limitation on the right to travel, the
Congress must respond to the need by explicitly providing for the
restriction in a law. This is in deference to the primacy of the right
to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative
enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon.
Franklin M. Drilon,[86] the Court upheld the validity of the
Department Order No. 1, Series of 1988, issued by the Department
of Labor and Employment, which temporarily suspended the
deployment of domestic and household workers abroad. The
measure was taken in response to escalating number of female
workers abroad who were subjected to exploitative working
conditions, with some even reported physical and personal abuse.
The Court held that Department Order No. 1 is a valid
implementation of the Labor Code, particularly, the policy to "afford
protection to labor." Public safety considerations justified the
restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services
(OAS) - Office of the Court Administrator (OCA) vs. Wilma
Salvacion P. Heusdens,[87] the Court enumerated the statutes
562
which specifically provide for the impairment of the right to
travel, viz.:
Some of these statutory limitations [to the right to travel] are the
following:
1] The Human Security Act of 2010 or [R.A.] No. 9372. The law
restricts the right to travel of an individual charged with the crime
of terrorism even though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant
to said law, the Secretary of Foreign Affairs or his authorized
consular officer may refuse the issuance of, restrict the use of, or
withdraw, a passport of a Filipino citizen.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No.
9208. Pursuant to the provisions thereof, the [BI], in order to
manage migration and curb trafficking in persons, issued
Memorandum Order Radir No. 2011-011, allowing its Travel Control
and Enforcement Unit to "offload passengers with fraudulent travel
documents, doubtful purpose of travel, including possible victims of
human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A.
No. 8042, as amended by R.A. No. 10022. In enforcement of said
law, the Philippine Overseas Employment Administration (POEA)
may refuse to issue deployment permit to a specific country that
effectively prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No.
9262. The law restricts movement of an individual against whom
the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant
thereto, the Inter-Country Adoption Board may issue rules
restrictive of an adoptee's right to travel "to protect the Filipino
child from abuse, exploitation, trafficking and/or sale or any other
practice in connection with adoption which is harmful, detrimental,
or prejudicial to the child."[88]
In any case, when there is a dilemma between an individual
claiming the exercise of a constitutional right vis-a-vis the state's
assertion of authority to restrict the same, any doubt must, at all
times, be resolved in favor of the free exercise of the right, absent
any explicit provision of law to the contrary.
The issuance of DOJ Circular No. 41 has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of
identifying the authority from which the DOJ believed its power to
restrain the right to travel emanates. To begin with, there is no law
particularly providing for the authority of the secretary of justice to
curtail the exercise of the right to travel, in the interest of national
security, public safety or public health. As it is, the only ground of
the former DOJ Secretary in restraining the petitioners, at that
time, was the pendency of the preliminary investigation of the Joint
DOJ-COMELEC Preliminary Investigation Committee on the
complaint for electoral sabotage against them.
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative
enactment which underwent the scrutiny and concurrence of
lawmakers, and submitted to the President for approval. It is a
mere administrative issuance apparently designed to carry out the
provisions of an enabling law which the former DOJ Secretary
believed to be Executive Order (E.O.) No. 292, otherwise known as
the "Administrative Code of 1987." She opined that DOJ Circular
No. 41 was validly issued pursuant to the agency's rule-making
powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1
of E.O. No. 292 and Section 50, Chapter 11, Book IV of the
mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-
making powers, among others. It is the "power to make rules and
regulations which results in delegated legislation that is within the
confines of the granting statute and the doctrine of non-delegability
and separability of powers."[90] In the exercise of this power, the
rules and regulations that administrative agencies promulgate
should be within the scope of the statutory authority granted by the
legislature to the administrative agency. It is required that the
regulation be germane to the objects and purposes of the law, and
be not in contradiction to, but in conformity with, the standards
prescribed by law. They must conform to and be consistent with
the provisions of the enabling statute in order for such rule or
regulation to be valid.[91]
It is, however, important to stress that before there can even be a
valid administrative issuance, there must first be a showing that
the delegation of legislative power is itself valid. It is valid only if
there is a law that (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate;
and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform
in the performance of his functions.[92]
does not lend to that stretched construction. To be specific, Section
1 is simply a declaration of policy, the essence of the law, which
provides for the statement of the guiding principle, the purpose and
the necessity for the enactment. The declaration of policy is most
useful in statutory construction as an aid in the interpretation of
the meaning of the substantive provisions of the law. It is
preliminary to the substantive portions of the law and certainly not
the part in which the more significant and particular mandates are
contained. The suggestion of the former DOJ Secretary that the
basis of the issuance of DOJ Circular No. 41 is contained in the
declaration of policy of E.O. No. 292 not only defeats logic but also
the basic style of drafting a decent piece of legislation because it
supposes that the authors of the law included the operative and
substantive provisions in the declaration of policy when its objective
is merely to introduce and highlight the purpose of the law.

A painstaking examination of the provisions being relied upon by
the former DOJ Secretary will disclose that they do not particularly
vest the DOJ the authority to issue DOJ Circular No. 41 which
effectively restricts the right to travel through the issuance of WLOs
and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O.
No. 292 reads:
Section 1. Declaration of Policy. - It is the declared policy of the
State to provide the government with a principal law agency which
shall be both its legal counsel and prosecution arm; administer
the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the
correctional system; implement the laws on the admission and stay
of aliens, citizenship, land titling system, and settlement of land
problems involving small landowners and member of indigenous
cultural minorities; and provide free legal services to indigent
members of the society.
xxxx
Section 3. Powers and Functions. - to accomplish its mandate, the
Department shall have the following powers and functions:
(1) Act as principal law agency of the government and as legal
counsel and representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute
offenders and administer the probation and correction
system;
Succinctly, "a declaration of policy contained in a statute is, like a
preamble, not a part of the substantive portions of the act. Such
provisions are available for clarification of ambiguous substantive
portions of the act, but may not be used to create ambiguity in
other substantive provisions."[93]
In the same way, Section 3 does not authorize the DOJ to issue
WLOs and HDOs to restrict the constitutional right to travel. There
is even no mention of the exigencies stated in the Constitution that
will justify the impairment. The provision simply grants the DOJ the
power to investigate the commission of crimes and prosecute
offenders, which are basically the functions of the agency.
However, it does not carry with it the power to indiscriminately
devise all means it deems proper in performing its functions without
regard to constitutionally-protected rights. The curtailment of a
fundamental right, which is what DOJ Circular No. 41 does, cannot
be read into the mentioned provision of the law. Any impairment or
restriction in the exercise of a constitutional right must be clear,
categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what
rules and regulations may be promulgated by an administrative
body, as well as with respect to what fields are subject to regulation
by it. It may not make rules and regulations which are inconsistent
with the provisions of the Constitution or a statute, particularly the
statute it is administering or which created it, or which are in
derogation of, or defeat, the purpose of a statute.[94]
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of
E.O. No. 292, which simply provides for the types of issuances that
administrative agencies, in general, may issue. It does not speak
of any authority or power but rather a mere clarification on the
nature of the issuances that may be issued by a secretary or head
of agency. The innocuous provision reads as follows:
Section 50. General Classification of Issuances. - The
administrative issuances of Secretaries and heads of bureaus,
offices and agencies shall be in the form of circulars or orders.

(1) Circulars shall refer to issuance prescribing policies, rules and

xxxx
(6) Provide immigration and naturalization regulatory
services and implement the laws governing citizenship and the
admission and stay of aliens;
regulations, and procedures promulgated pursuant to law,
applicable to individuals and organizations outside the Government
and designed to supplement provisions of the law or to provide
means for carrying them out, including information relating
thereto; and
(2) Orders shall refer to issuances directed to particular offices,
officials, or employees, concerning specific matters including
assignments, detail and transfer of personnel, for observance or
compliance by all concerned. (Emphasis Ours)

(7) Provide legal services to the national government and its
functionaries, including government-owned and controlled
corporations and their subsidiaries;
(8) Such other functions as may be provided
law. (Emphasis supplied)
A plain reading of the foregoing provisions shows that they are
mere general provisions designed to lay down the purposes of the
enactment and the broad enumeration of the powers and functions
of the DOJ. In no way can they be interpreted as a grant of power
to curtail a fundamental right as the language of the provision itself
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O.
292 cited in the memorandum of the former DOJ Secretary cannot
justify the restriction on the right to travel in DOJ Circular No. 41.
The memorandum particularly made reference to Subsections 3, 4
and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary
by
shall:
(1) Advise the President in issuing executive orders, regulations,
proclamations and other issuances, the promulgation of which
is expressly vested by law in the President relative to matters
under the jurisdiction of the Department;

563

(2) Establish the policies and standards for the operation of the
Department pursuant to the approved programs of
governments;
(3) Promulgate rules and regulations necessary to carry out
department objectives, policies, functions, plans,
programs and projects;
(4) Promulgate administrative issuances necessary for the
efficient administration of the offices under the Secretary
and for proper execution of the laws relative thereto.
These issuances shall not prescribe penalties for their
violation, except when expressly authorized by law;
xxxx
(9) Perform such other functions as may be provided by law.
(Emphasis Ours)
It is indisputable that the secretaries of government agencies have
the power to promulgate rules and regulations that will aid in the
performance of their functions. This is adjunct to the power of
administrative agencies to execute laws and does not require the
authority of a law. This is, however, different from the delegated
legislative power to promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party
List (formerly AASJS) et al. vs. Hon. Purisima et al.,[95] is
illuminating:
The inherent power of the Executive to adopt rules and regulations
to execute or implement the law is different from the delegated
legislative power to prescribe rules. The inherent power of the
Executive to adopt rules to execute the law does not require any
legislative standards for its exercise while the delegated legislative
power requires sufficient legislative standards for its exercise.
Whether the rule-making power by the Executive is a delegated
legislative power or an inherent Executive power depends on the
nature of the rule-making power involved. If the rule-making power
is inherently a legislative power, such as the power to fix tariff
rates, the rule-making power of the Executive is a delegated
legislative power. In such event, the delegated power can be
exercised only if sufficient standards are prescribed in the law
delegating the power.
If the rules are issued by the President in implementation or
execution of self-executory constitutional powers vested in the
President, the rule-making power of the President is not a
delegated legislative power, x x x. The rule is that the President can
execute the law without any delegation of power from the
legislature. Otherwise, the President becomes a mere figure-head
and not the sole Executive of the Government.[96]
The questioned circular does not come under the inherent power of
the executive department to adopt rules and regulations as clearly
the issuance of HDO and WLO is not the DOJ's business. As such,
it is a compulsory requirement that there be an existing law,
complete and sufficient in itself, conferring the expressed authority
to the concerned agency to promulgate rules. On its own, the DOJ
cannot make rules, its authority being confined to execution of
laws. This is the import of the terms "when expressly provided by
law" or "as may be provided by law" stated in Sections 7(4) and
7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is confined
to filling in the gaps and the necessary details in carrying into effect
the law as enacted.[97] Without a clear mandate of an existing law,
an administrative issuance is ultra vires.
564
Consistent with the foregoing, there must be an enabling law from
which DOJ Circular No. 41 must derive its life. Unfortunately, all of
the supposed statutory authorities relied upon by the DOJ did not
pass the completeness test and sufficient standard test. The DOJ
miserably failed to establish the existence of the enabling law that
will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in
realizing its mandate only begs the question. The purpose, no
matter how commendable, will not obliterate the lack of authority
of the DOJ to issue the said issuance. Surely, the DOJ must have
the best intentions in promulgating DOJ Circular No. 41, but the
end will not justify the means. To sacrifice individual liberties
because of a perceived good is disastrous to democracy.
In Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform,[98] the Court emphasized:
One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is
also necessary that the means employed to pursue it be in keeping
with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject
only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person
invoking a right guaranteed under Article III of the Constitution is
a majority of one even as against the rest of the nation who would
deny him that right.[99]
The DOJ would however insist that the resulting infringement of
liberty is merely incidental, together with the consequent
inconvenience, hardship or loss to the person being subjected to
the restriction and that the ultimate objective is to preserve the
investigative powers of the DOJ and public order.[100] It posits that
the issuance ensures the presence within the country of the
respondents during the preliminary investigation.[101] Be that as it
may, no objective will ever suffice to legitimize desecration of a
fundamental right. To relegate the intrusion as negligible in view of
the supposed gains is to undermine the inviolable nature of the
protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of
crimes and prosecute offenders. Its zealousness in pursuing its
mandate is laudable but more admirable when tempered by
fairness and justice. It must constantly be reminded that in the
hierarchy of rights, the Bill of Rights takes precedence over the
right of the State to prosecute, and when weighed against each
other, the scales of justice tilt towards the former.[102] Thus,
in Allado vs. Diokno,[103] the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its
people from vicious acts which endanger the proper administration
of justice; hence, the State has every right to prosecute and punish
violators of the law. This is essential for its self-preservation, nay,
its very existence. But this does not confer a license for pointless
assaults on its citizens. The right of the State to prosecute is not a
carte blanche for government agents to defy and disregard the
rights of its citizens under the Constitution.[104]
The DOJ stresses the necessity of the restraint imposed in DOJ
Circular No. 41 in that to allow the petitioners, who are under
preliminary investigation, to exercise an untrammelled right to
travel, especially when the risk of flight is distinctly high will surely
impede the efficient and effective operation of the justice system.
The absence of the petitioners, it asseverates, would mean that the
farthest criminal proceeding they could go would be the filing of the
criminal information since they cannot be arraigned in absentia.[105]
The predicament of the DOJ is understandable yet untenable for
relying on grounds other what is permitted within the confines of
its own power and the nature of preliminary investigation itself. The
Court, in Paderanga vs. Drilon,[106] made a clarification on the
nature of a preliminary investigation, thus:
A preliminary investigation is x x x 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. x x x 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.[107]
It bears emphasizing that the conduct of a preliminary investigation
is an implement of due process which essentially benefits the
accused as it accords an opportunity for the presentation of his side
with regard to the accusation.[108] The accused may, however, opt
to waive his presence in the preliminary investigation. In any case,
whether the accused responds to a subpoena, the investigating
prosecutor shall resolve the complaint within 10 days after the filing
of the same.
The point is that in the conduct of a preliminary investigation, the
presence of the accused is not necessary for the prosecutor to
discharge his investigatory duties. If the accused chooses to waive
his presence or fails to submit countervailing evidence, that is his
own lookout. Ultimately, he shall be bound by the determination of
the prosecutor on the presence of probable cause and he cannot
claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of
movement imposed by DOJ Circular No. 41 on the ground that it is
necessary to ensure presence and attendance in the preliminary
investigation of the complaints. There is also no authority of law
granting it the power to compel the attendance of the subjects of a
preliminary investigation, pursuant to its investigatory powers
under E.O. No. 292. Its investigatory power is simply inquisitorial
and, unfortunately, not broad enough to embrace the imposition of
restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the
situation upon itself and draft an administrative issuance to keep
the individual within the Philippine jurisdiction so that he may not
be able to evade criminal prosecution and consequent liability. It is
an arrogation of power it does not have; it is a usurpation of
function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No.
41 is an unauthorized act of the DOJ of empowering itself under the
pretext of dire exigency or urgent necessity. This action runs afoul
the separation of powers between the three branches of the
government and cannot be upheld. Even the Supreme Court, in the
exercise of its power to promulgate rules is limited in that the same
shall not diminish, increase, or modify substantive rights.[109] This
should have cautioned the DOJ, which is only one of the many
agencies of the executive branch, to be more scrutinizing in its
actions especially when they affect substantive rights, like the right
to travel.
The DOJ attempts to persuade this Court by citing cases wherein
the restrictions on the right to travel were found reasonable, i.e.
New York v. O'Neill,[110] Kwong vs. Presidential Commission on
Good Government[111] and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI
to support its position for the reasons stated earlier in this
disquisition. In the same manner, Kant Kwong is not an appropriate
authority since the Court never ruled on the constitutionality of the
authority of the PCGG to issue HDOs in the said case. On the
contrary, there was an implied recognition of the validity of the
PCGG's Rules and Regulations as the petitioners therein even
referred to its provisions to challenge the PCGG's refusal to lift the
HDOs issued against them despite the lapse of the period of its
effectivity. The petitioners never raised any issue as to the
constitutionality of Section 2 of the PCGG Rules and Regulations but
only questioned the agency's non-observance of the rules
particularly on the lifting of HDOs. This is strikingly different from
the instant case where the main issue is the constitutionality of the
authority of the DOJ Secretary to issue HDOs under DOJ Circular
No. 41.
565
Similarly, the pronouncement is New York does not lend support to
the respondents' case. In the said case, the respondent therein
questioned the constitutionality of a Florida statute entitled
"Uniform Law to Secure the Attendance of Witnesses from Within
or Without a State in Criminal Proceedings," under which authority
a judge of the Court of General Sessions, New York County
requested the Circuit Court of Dade County, Florida, where he was
at that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a grand jury
proceeding. The US Supreme Court upheld the constitutionality of
the law, ruling that every citizen, when properly summoned, has
the obligation to give testimony and the same will not amount to
violation of the freedom to travel but, at most, a mere temporary
interference. The clear deviation of the instant case from New York
is that in the latter case there is a law specifically enacted to require
the attendance of the respondent to court proceedings to give his
testimony, whenever it is needed. Also, after the respondent fulfils
his obligation to give testimony, he is absolutely free to return in
the state where he was found or to his state of residence, at the
expense of the requesting state. In contrast, DOJ Circular No. 41
does not have an enabling law where it could have derived its
authority to interfere with the exercise of the right to travel.
Further, the respondent is subjected to continuing restraint in his
right to travel as he is not allowed to go until he is given, if he will
ever be given, an ADO by the secretary of justice.
The DOJ cannot issue DOJ Circular No. 41 under the guise of
police power
The DOJ's reliance on the police power of the state cannot also be
countenanced. Police power pertains to the "state authority to enact
legislation that may interfere with personal liberty or property in
order to promote the general welfare."[112] "It may be said to be
that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of
society."[113] Verily, the exercise of this power is primarily lodged
with the legislature but may be wielded by the President and
administrative boards, as well as the lawmaking bodies on all
municipal levels, including the barangay, by virtue of a valid
delegation of power.[114
It bears noting, however, that police power may only be validly
exercised if (a) the interests of the public generally, as
distinguished from those of a particular class, require the
interference of the State, and (b) the means employed are
reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals.[115]
On its own, the DOJ cannot wield police power since the authority
pertains to Congress. Even if it claims to be exercising the same as
the alter ego of the President, it must first establish the presence
of a definite legislative enactment evidencing the delegation of
power from its principal. This, the DOJ failed to do. There is likewise
no showing that the curtailment of the right to travel imposed by
DOJ Circular No. 41 was reasonably necessary in order for it to
perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be
reasonable and not repugnant to the Constitution.[116] It must
never be utilized to espouse actions that violate the Constitution.
Any act, however noble its intentions, is void if it violates the
Constitution.[117] In the clear language of the Constitution, it is only
in the interest of national security, public safety and public health
that the right to travel may be impaired. None one of the mentioned
circumstances was invoked by the DOJ as its premise for the
promulgation of DOJ Circular No. 41.
DOJ Circular No. 41 transcends constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from
other serious infirmities that render it invalid. The apparent
vagueness of the circular as to the distinction between a HDO and
WLO is violative of the due process clause. An act that is vague
"violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid and leaves
law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle."[118] Here,
the distinction is significant as it will inform the respondents of the
grounds, effects and the measures they may take to contest the
issuance against them. Verily, there must be a standard by which
a HDO or WLO may be issued, particularly against those whose
cases are still under preliminary investigation, since at that stage
there is yet no criminal information against them which could have
warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No.
41 shows that it emanates from the DOJ's assumption of powers
that is not actually conferred to it. In one of the whereas clauses of
the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through
the Office of the Court Administrator, clearly state that "[HDO] shall
be issued only in criminal cases within the exclusive jurisdiction of
the [RTCs]," said circulars are, however, silent with respect to cases
falling within the jurisdiction of courts below the RTC as well as
those pending determination by government prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ
Circular No. 41 was the supposed inadequacy of the issuances of
this Court pertaining to HDOs, the more pertinent of which is SC
Circular No. 39-97.[119] It is the DOJ's impression that with the
silence of the circular with regard to the issuance of HDOs in cases
falling within the jurisdiction of the MTC and those still pending
investigation, it can take the initiative in filling in the deficiency. It
is doubtful, however, that the DOJ Secretary may undertake such
action since the issuance of HDOs is an exercise of this Court's
inherent power "to preserve and to maintain the effectiveness of its
jurisdiction over the case and the person of the accused."[120] It is
an exercise of judicial power which belongs to the Court alone, and
which the DOJ, even as the principal law agency of the government,
does not have the authority to wield.
Moreover, the silence of the circular on the matters which are being
addressed by DOJ Circular No. 41 is not without good reasons.
Circular No. 39-97 was specifically issued to avoid indiscriminate
issuance of HDOs resulting to the inconvenience of the parties
affected as the same could amount to an infringement on the right
and liberty of an individual to travel. Contrary to the understanding
of the DOJ, the Court intentionally held that the issuance of HDOs
shall pertain only to criminal cases within the exclusive jurisdiction
of the RTC, to the exclusion of criminal cases falling within the
jurisdiction of the MTC and all other cases. The intention was made
clear with the use of the term "only." The reason lies in seeking
equilibrium between the state's interest over the prosecution of the
case considering the gravity of the offense involved and the
individual's exercise of his right to travel. Thus, the circular permits
the intrusion on the right to travel only when the criminal case filed
against the individual is within the exclusive jurisdiction of the RTC,
or those that pertains to more serious crimes or offenses that are
punishable with imprisonment of more than six years. The exclusion
of criminal cases within the jurisdiction of the MTC is justified by
the fact that they pertain to less serious offenses which is not
commensurate with the curtailment of a fundamental right. Much
less is the reason to impose restraint on the right to travel of
respondents of criminal cases still pending investigation since at
that stage no information has yet been filed in court against them.
It is for these reasons that Circular No. 39-97 mandated that FIDO
may only be issued in criminal cases filed with the RTC and withheld
the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went
overboard by assuming powers which have been withheld from the
lower courts in Circular No. 39-97. In the questioned circular, the
DOJ Secretary may issue HDO against the accused in criminal cases
within the jurisdiction of the MTC[121] and against defendants,
respondents and witnesses in labor or administrative cases,[122] no
matter how unwilling they may be. He may also issue WLO against
accused in criminal cases pending before the RTC,[123] therefore
making himself in equal footing with the RTC, which is authorized
by law to issue HDO in the same instance. The DOJ Secretary may
likewise issue WLO against respondents in criminal cases pending
preliminary investigation, petition for review or motion for
reconsideration before the DOJ.[124] More striking is the authority of
the DOJ Secretary to issue a HDO or WLO motu proprio, even in
the absence of the grounds stated in the issuance if he deems
566
necessary in the interest of national security, public safety or public
health.[125]
It bears noting as well that the effect of the HDO and WLO in DOJ
Circular No. 41 is too obtrusive as it remains effective even after
the lapse of its validity period as long as the DOJ Secretary does
not approve the lifting or cancellation of the same. Thus, the
respondent continually suffers the restraint in his mobility as he
awaits a favorable indorsement of the government agency that
requested for the issuance of the HDO or WLO and the affirmation
of the DOJ Secretary even as the HDO or WLO against him had
become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ
Secretary has authorized himself to permit a person subject of HDO
or WLO to travel through the issuance of an ADO upon showing of
"exceptional reasons" to grant the same. The grant, however, is
entirely dependent on the sole discretion of the DOJ Secretary
based on his assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to
brush aside particularly its assumption that the DOJ Secretary's
determination of the necessity of the issuance of HDO or WLO can
take the place of a law that authorizes the restraint in the right to
travel only in the interest of national security, public safety or public
health. The DOJ Secretary has recognized himself as the sole
authority in the issuance and cancellation of HDO or WLO and in
the determination of the sufficiency of the grounds for an ADO. The
consequence is that the exercise of the right to travel of persons
subject of preliminary investigation or criminal cases in court is
indiscriminately subjected to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to
avoid—for an executive officer to impose restriction or exercise
discretion that unreasonably impair an individual's right to travel-
thus, the addition of the phrase, "as maybe provided by law" in
Section 6, Article III thereof. In Silverio, the Court underscored that
this phraseology in the 1987 Constitution was a reaction to the ban
on international travel imposed under the previous regime when
there was a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party.[126] The
qualifying phrase is not a mere innocuous appendage. It secures
the individual the absolute and free exercise of his right to travel at
all times unless the more paramount considerations of national
security, public safety and public health call for a temporary
interference, but always under the authority of a law.
The subject WLOs and the restraint on the right to travel.
In the subject WLOs, the illegal restraint on the right to travel was
subtly incorporated in the wordings thereof. For better illustration,
the said WLOs are hereby reproduced as follows:
WLO No. ASM-11-237[127]
(Watchlist)
In re: GLORIA M. MACAPAGAL-ARROYO
x ------------------------------------- x
ORDER
On 09 August 2011, Hon. Leila M. Dc Lima, Secretary of the
Department of Justice issued an order docketed as Watchlist Order
No. 2011-422 directing the Bureau of Immigration to include the
name GLORIA M. MACAPAGAL-ARROYO in the Bureau's
Watchlist.
It appears that GLORIA M. MACAPAGAL-ARROYO is the subject
of an investigation by the Department of Justice in connection with
the following cases:
Docket No. Title of the Case Offense/s Charged
XVI-INV-10H- Danilo A. Lihaylihay vs. Plunder
00251 Gloria Macapagal-
Arroyo
XVIX-INV-11D- Francisco I. Chavez vs. Plunder, Malversation Code of Ethical
00170 Gloria Macapagl- and/or Illegal use of Standards for Public
Arroyo OWWA Funds, Graft Officials, and Qualified
and Corruption, Theft
Violation of The
Omnibus Election Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated
Code, Violation of the May 25, 2010 (Consolidated Rules and Regulations Governing the
Code of Ethical Issuance and Implementation of Hold Departure Orders, Watchlist
Standards for Public Orders, and Allow Departure Orders), the undersigned hereby motu
Officials, and Qualified proprio issues a Watchlist Order against Ma. Gloria M.
Theft Macapagal-Arroyo.
XVI-INV-11F- Francisco I. Chavez vs. Plunder, Malversation
00238 Gloria Macapagl- and/or Illegal use of Accordingly, the Commissioner of Immigration, Manila, is hereby
Arroyo Jocelyn "Joc- Public Funds, Graft and ordered to INCLUDE in the Bureau of Immigration's Watchlist the
Joc" Bolante, Ibarra Corruption, Violation of name of Ma. Gloria M. Macapagal-Arroyo.
Poliquit et al. The Omnibus Election
Code, Violation of the Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period
Code of Ethical of sixty (60) days from issuance unless sooner terminated or
Standards for Public extended.
Officials, and Qualified
Theft SO ORDERED.

Based on the foregoing and pursuant to Department of Justice City of Manila, September 6, 2011. (Emphasis ours)
Circular No. 41 (Consolidated Rules and Regulations Governing
the Issuance and Implementation of Hold Departure Orders, __________________________________
Watchlist Orders, and Allow Departure Orders) dated 25 May
2010, we order the inclusion of the name GLORIA M. Watchlist Order (WLO)
MACAPAGAL-ARROYO in the Watchlist. No. 2011-573[129]

This watchlist shall be valid for sixty (60) days unless sooner IN RE: Issuance of WLO against BENJAMIN ABALOS. SR. et al.
revoked or extended.
ORDER
The Airport Operation Division and Immigration Regulation
Division Chiefs shall implement this Order.
Pursuant to Section 2(c) of Department Circular No. 41 dated May
25, 2010 (Consolidated Rules and Regulations Governing the
Notify the Computer Section.
Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders), after careful evaluation,
SO ORDERED.
finds the Application for the Issuance of WLO against the following
meritorious;
09 August 2011 (Emphasis ours)
__________________________________
xxxx
Watchlist Order No. 2011-422[128]
12. MA. GLORIA M.MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives
In re: Issuance of Watchlist
Quezon City
Order against MA. GLORIA M. MACAPAGAL-ARROYO
xxxx
AMENDED ORDER
Ground for Pendency of the
Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an WLO case, entitled "DOJ-
investigation by this Department in connection with the following Issuance: COMELEC Fact
cases: Finding Committee
v. Benjamin Abalos
Sr., el al." for
Docket No. Title of the Case Offense/s Charged Electoral
Sabotage/Omnibus
XVI-INV-10H- Danilo A. Lihaylihay Plunder Election Code
00251 versus Gloria docketed as DOJ-
Macapagal-Arroyo COMELEC Case No.
XVIX-INV-11D- Francisco I, Chavez Plunder, Malversation 001-2011
00170 versus Gloria and/or Illegal Use of
Macapagal-Arroyo OWWA Funds, Graft 1. MA. GLORIA M. MACAPAGAL-ARROYO
and Corruption, Address: Room MB-2, House of Representatives Quezon City
Violation of the
Omnibus Election 2. JOSE MIGUEL TUASON ARROYO
Code, Violation of the Address: L.T.A. Bldg. 118 Perea St. Makati City
Code of Ethical
Standards for Public xxxx
Officials, and Qualified
Theft Ground for Pendency of the
XVI-INV-11F- Francisco I. Chavez Plunder, Malversation WLO case, entitled
00238 versus Gloria and/or Illegal Use of Issuance: "Aquilino Pimentel
Macapagal-Arroyo Public Funds, Graft and III v. Gloria
Jocelyn "Joc-Joc" Corruption, Violation of Macapagal-Arroyo,
Bolante, Ibarra Poliquit the Omnibus Election et Al." for Electoral
et al. Code, Violation of the Sabotage docketed

567
 as DOJ-COMELEC
Case No. 002-
2011.
Name: ERWIN F. GENUINO
Accordingly, the Commissioner of Immigration, Manila, is hereby-
ordered to INCLUDE in the Bureau of Immigration's Watchlist, the
names of the above-named persons. Nationality: Filipino

This Order is valid for a period of sixty (60) days from the date of Last known
No. 5 J.P. Rizal Extension, COMEMBO, Makati City
its issuance unless sooner terminated or otherwise extended. address:
Ground for
Malversation, Violation of the Anti-Graft and Corrupt
SO ORDERED. HDO
Practices Act, Plunder
On the other hand, HDO No. 2011-64 issued against the petitioners Issuance:
in G. R. No. 197930 pertinently states: Pending before the National Prosecution Service,
Details of
Hold Departure Order (HDO) Department of Justice (NTS Docket No. XV-INV-11F-
the Case:
No. 2011-64[130] 00229
Pending before the National Prosecution Service,
In re: Issuance of HDO against EFRAIM C. GENUINO, ET AL. Department of Justice
x ------------------------------------- x
(I.S. No. XVI-INV-11G-00248)
ORDER
xxxx
After a careful evaluation of the application, including the
documents attached thereto, for the issuance of Hold Departure
Order (HDO) against the above-named persons filed pursuant to Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period
this Department's Circular (D.C.) No. 41 (Consolidated Rules and of five (5) years unless sooner terminated.
Regulations Governing the Issuance and Implementation of Hold
Departure Orders, Watchlist Orders, and Allow Departure Orders) SO ORDERED. (Emphasis ours)
dated May 25, 2010, we find the application meritorious. On its face, the language of the foregoing issuances does not
contain an explicit restraint on the right to travel. The issuances
Accordingly, the Commissioner of Immigration, Manila, is hereby seemed to be a mere directive from to the BI officials to include the
ordered to INCLUDE in the Bureau of Immigration's Watchlist the named individuals in the watchlist of the agency. Noticeably,
names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN however, all of the WLOs contained a common reference to DOJ
F. GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" Circular No. 41, where the authority to issue the same apparently
F. KING, RENE C. FIGUEROA, ATTY, CARLOS R. BAUTISTA, JR., emanates, and from which the restriction on the right to travel can
EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND be traced. Section 5 thereof provides, thus:
JOHNNY G. TAN. Section 5. HDO/WLO Lifting or Cancellation - In the lifting or
cancellation of the HDO/WLO issued pursuant to this Circular, the
following shall apply:
Name: EFRAIM C. GENUINO
(a) The HDO may be lifted or cancelled under any of the
Nationality: Filipino following grounds:

Last knownNo. 42 Lapu Lapu Street, Magallanes Village, Makati

address: City
1. When the validity period of the HDO as provided for in the
Ground for
Malversation, Violation of the Anti-Graft and Corrupt preceding section has already expired;
HDO
Practices Act, Plunder
Issuance: 2. When the accused subject of the HDO has been
Pending before the National Prosecution Service, allowed to leave the country during the pendency of
Details of
Department of Justice (NPS Docket No. XV-INV-11F- the case, or has been acquitted of the charge, or the case
the Case:
00229 in which the warrant/order of arrest was issued has been
dismissed or the warrant/order of arrest has been recalled;
Pending before the Office of the Ombudsman 3. When the civil or labor case or case before an administrative
agency of the government wherein the presence of the alien
(Case No. CPL-C-11-1297) subject of the HDO/WLO has been dismissed by the court or
by appropriate government agency, or the alien has been
Pending before the National Prosecution Service, discharged as a witness therein, or the alien has been
Department of Justice allowed to leave the country;

(I.S. No. XVI-INV-11G-00248)

Name: SHERYLL F. GENUINO-SEE

(b) The WLO may be lifted or cancelled under any of the
Nationality: Filipino following grounds:

Last known
No. 32-a Paseo Parkview, Makati City
address:
1. When the validity period of the WLO as provided for in the
Ground for
Malversation, Violation of the Anti-Graft and Corrupt preceding section has already expired;
HDO
Practices Act, Plunder
Issuance: 2. When the accused subject of the WLO has been
Details ofPending before the National Prosecution Service, allowed by the court to leave the country during the
the Case: Department of Justice pendency of the case, or has been acquitted of the charge;
and
(I.S. No. XVI-INV-11G-00248)

568
 3. When the preliminary investigation is terminated, or
when the petition for review, or motion for
reconsideration has been denied and/or dismissed.
xxxx
That the subject of a HDO or WLO suffers restriction in the right to
travel is implied in the fact that under Sections 5(a) (2) and 5(b)
(2), the concerned individual had to seek permission to leave the
country from the court during the pendency of the case against
him. Further, in 5 (b) (3), he may not leave unless the preliminary
investigation of the case in which he is involved has been
terminated.
In the same manner, it is apparent in Section 7 of the same circular
that the subject of a HDO or WLO cannot leave the country unless
he obtains an ADO. The said section reads as follows:
Section 7. Allow Departure Order (ADO) - Any person
subject of HDO/WLO issued pursuant to this Circular who
intends, for some exceptional reasons, to leave the
country may, upon application under oath with the Secretary of
Justice, be issued an ADO.
The ADO may be issued upon submission of the following
requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date
of travel, and containing an undertaking to immediately report to
the DOJ upon return; and
(b) Authority to travel or travel clearance from the court or
appropriate government office where the case upon which the
issued HDO/WLO was based is pending, or from the investigating
prosecutor in charge of the subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed
to leave the country, the only plausible conclusion that can be made
is that its mere issuance operates as a restraint on the right to
travel. To make it even more difficult, the individual will need to
cite an exceptional reason to justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO,
thereby giving the impression that they are one and the same or,
at the very least, complementary such that whatever is not covered
in Section 1,[131] which pertains to the issuance of HDO, can
conveniently fall under Section 2,[132] which calls for the issuance
of WLO. In any case, there is an identical provision in DOJ Circular
No. 41 which authorizes the Secretary of Justice to issue a HDO or
WLO against anyone, motu proprio, in the interest of national
security, public safety or public health. With this all-encompassing
provision, there is nothing that can prevent the Secretary of Justice
to prevent anyone from leaving the country under the guise of
national security, public safety or public health.
The exceptions to the right to travel are limited to those
stated in Section 6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not
an exclusive enumeration of the instances wherein the right to
travel may be validly impaired.[133] It cites that this Court has its
own administrative issuances restricting travel of its employees and
that even lower courts may issue HDO even on grounds/outside of
what is stated in the Constitution.[134]
The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the
courts. The courts may issue a HDO against an accused in a criminal
case so that he may be dealt with in accordance with law.[135] It
does not require legislative conferment or constitutional
recognition; it co-exists with the grant of judicial power.
In Defensor-Santiago vs. Vasquez,[136] the Court declared, thus:
Courts possess certain inherent powers which may be said to be
implied from a general grant of jurisdiction, in addition to those
expressly conferred on them. These inherent powers are such
569
powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or essential to the existence, dignity and functions of
the court, as well as to the due administration of justice; or are
directly appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants.[137]
The inherent powers of the courts are essential in upholding its
integrity and largely beneficial in keeping the people's faith in the
institution by ensuring that it has the power and the means to
enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the
Court, in Leave Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII
of the 1987 Constitution provides that the Supreme Court shall
have administrative supervision over all courts and the
personnel thereof. This provision empowers the Court to oversee
all matters relating to the effective supervision and management of
all courts and personnel under it. Recognizing this mandate,
Memorandum Circular No. 26 of the Office of the President, dated
July 31, 1986, considers the Supreme Court exempt and with
authority to promulgate its own rules and regulations on foreign
travels. Thus, the Court came out with OCA Circular No. 49-2003
(B).
Where a person joins the Judiciary or the government in general,
he or she swears to faithfully adhere to, and abide with, the law
and the corresponding office rules and regulations. These rules and
regulations, to which one submits himself or herself, have been
issued to guide the government officers and employees in the
efficient performance of their obligations. When one becomes a
public servant, he or she assumes certain duties with their
concomitant responsibilities and gives up some rights like the
absolute right to travel so that public service would not be
prejudiced.[138]
It is therefore by virtue of its administrative supervision over all
courts and personnel that this Court came out with OCA Circular
No. 49-2003, which provided for the guidelines that must be
observed by employees of the judiciary seeking to travel abroad.
Specifically, they are required to secure a leave of absence for the
purpose of foreign travel from this Court through the Chief Justice
and the Chairmen of the Divisions, or from the Office of the Court
Administrator, as the case maybe. This is "to ensure management
of court dockets and to avoid disruption in the administration of
justice."[139]
OCA Circular No. 49-2003 is therefore not a restriction, but more
properly, a regulation of the employee's leave for purpose of foreign
travel which is necessary for the orderly administration ofjustice.
To "restrict" is to restrain or prohibit a person from doing
something; to "regulate" is to govern or direct according to
rule.[140] This regulation comes as a necessary consequence of the
individual's employment in the judiciary, as part and parcel of his
contract in joining the institution. For, if the members of the
judiciary are at liberty to go on leave any time, the dispensation
ofjustice will be seriously hampered. Short of key personnel, the
courts cannot properly function in the midst of the intricacies in the
administration of justice. At any rate, the concerned employee is
not prevented from pursuing his travel plans without complying
with OCA Circular No. 49-2003 but he must be ready to suffer the
consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil
Service Commission with respect to the requirement for leave
application of employees in the government service seeking to
travel abroad. The Omnibus Rules Implementing Book V of E.O. No.
292 states the leave privileges and availment guidelines for all
government employees, except those who are covered by special
laws. The filing of application for leave is required for purposes of
orderly personnel administration. In pursuing foreign travel plans,
a government employee must secure an approved leave of absence
from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by
Memorandum Order (MO) No. 26 dated July 31, 1986, provided the
procedure in the disposition of requests of government officials and
employees for authority to travel abroad. The provisions of this
issuance were later clarified in the Memorandum Circular No. 18
issued on October 27, 1992. Thereafter, on September 1, 2005,
E.O. No. 459 was issued, streamlining the procedure in the
disposition of requests of government officials and employees for
authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government
officials and employees seeking authority to travel abroad
shall henceforth seek approval from their respective heads
of agencies, regardless of the length of their travel and the
number of delegates concerned. For the purpose of this paragraph,
heads of agencies refer to the Department Secretaries or their
equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was
deemed necessary "to promote efficiency and economy in the
government service."[141] The objective was clearly administrative
efficiency so that government employees will continue to render
public services unless they are given approval to take a leave of
absence in which case they can freely exercise their right to travel.
It should never be interpreted as an exception to the right to travel
since the government employee during his approved leave of
absence can travel wherever he wants, locally or abroad. This is no
different from the leave application requirements for employees in
private companies.
The point is that the DOJ may not justify its imposition of restriction
on the right to travel of the subjects of DOJ Circular No. 41 by
resorting to an analogy. Contrary to its claim, it does not have
inherent power to issue HDO, unlike the courts, or to restrict the
right to travel in anyway. It is limited to the powers expressly
granted to it by law and may not extend the same on its own accord
or by any skewed interpretation of its authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to
issue the questioned circular but the solution does not lie in taking
constitutional shortcuts. Remember that the Constitution "is the
fundamental and paramount law of the nation to which all other
laws must conform and in accordance with which all private rights
are determined and all public authority administered."[142] Any law
or issuance, therefore, must not contradict the language of the
fundamental law of the land; otherwise, it shall be struck down for
being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules
that have a negative impact on constitutionally-protected rights
without the authority of a valid law. Even with the predicament of
preventing the proliferation of crimes and evasion of criminal
responsibility, it may not overstep constitutional boundaries and
skirt the prescribed legal processes.
That the subjects of DOJ Circular No. 41 are individuals who may
have committed a wrong against the state does not warrant the
intrusion in the enjoyment of their basic rights. They are
nonetheless innocent individuals and suspicions on their guilt do
not confer them lesser privileges to enjoy. As emphatically
pronounced in Secretary of National Defense vs. Manalo, et
al.,[143] the constitution is an overarching sky that covers all in its
protection. It affords protection to citizens without distinction. Even
the most despicable person deserves the same respect in the
enjoyment of his rights as the upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma
of the DOJ. The resolution of the issues in the instant petitions was
partly aimed at encouraging the legislature to do its part and enact
the necessary law so that the DOJ may be able to pursue its
prosecutorial duties without trampling on constitutionally-protected
rights. Without a valid legislation, the DOJ's actions will perpetually
be met with legal hurdles to the detriment of the due administration
of justice. The challenge therefore is for the legislature to address
this problem in the form of a legislation that will identify permissible
intrusions in the right to travel. Unless this is done, the government
will continuously be confronted with questions on the legality of
570
their actions to the detriment of the implementation of government
processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising
more vigilance and efficiency in the performance of its duties. This
can be accomplished by expediency in the assessment of
complaints filed before its office and in the prompt filing of
information in court should there be an affirmative finding of
probable cause so that it may legally request for the issuance of
HDO and hold the accused for trial. Clearly, the solution lies not in
resorting to constitutional shortcuts but in an efficient and effective
performance of its prosecutorial duties.
The Court understands the dilemma of the government on the
effect of the declaration of unconstitutionality of DOJ Circular No.
41, considering the real possibility that it may be utilized by
suspected criminals, especially the affluent ones, to take the
opportunity to immediately leave the country. While this is a
legitimate concern, it bears stressing that the government is not
completely powerless or incapable of preventing their departure or
having them answer charges that may be subsequently filed
against them. In his Separate Concurring Opinion, Mr. Justice
Carpio, pointed out that Republic Act No. (R.A.) 8239, otherwise
known as the Philippine Passport Act of 1996, explicitly grants the
Secretary of Foreign Affairs or any of the authorized consular
officers the authority to issue verify, restrict, cancel or refuse the
issuance of a passport to a citizen under the circumstances
mentioned in Section 4[144] thereof. Mr. Justice Tijam, on the other
hand, mentioned Memorandum Circular No. 036, which was issued
pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of
2003, as amended by R.A. No. 10364 or the Expanded Anti-
Trafficking in Persons Acts of 2012, which authorizes the BI to hold
the departure of suspected traffickers or trafficked individuals. He
also noted that the Commissioner of BI has the authority to issue a
HDO against a foreigner subject of deportation proceedings in order
to ensure his appearance therein. Similarly, the proposal of Mr.
Justice Velasco for the adoption of new set of rules which will allow
the issuance of a precautionary warrant of arrest offers a promising
solution to this quandary. This, the Court can do in recognition of
the fact that laws and rules of procedure should evolve as the
present circumstances require.
Contempt charge against respondent De Lima
It is well to remember that on November 18, 2011, a
Resolution[145] was issued requiring De Lima to show cause why she
should not be disciplinarily dealt or be held in contempt for failure
to comply with the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding
full discussion that it rightfully deserves, the Court finds it more
fitting to address the same in a separate proceeding. It is in the
interest of fairness that there be a complete and exhaustive
discussion on the matter since it entails the imposition of penalty
that bears upon the fitness of the respondent as a member of the
legal profession. The Court, therefore, finds it proper to deliberate
and resolve the charge of contempt against De Lima in a separate
proceeding that could accommodate a full opportunity for her to
present her case and provide a better occasion for the Court to
deliberate on her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of
Justice Circular No. 41 is hereby declared UNCONSTITUTIONAL.
All issuances which were released pursuant thereto are hereby
declared NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the
Resolution of the Court dated November 28, 2011, which required
respondent Leila De Lima to show cause why she should not be
cited in contempt, as a separate petition.
SO ORDERED.
G.R. No. L-27833 April 18, 1969
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE
CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO
GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the
electoral process by Congress calling a halt to the undesirable
practice of prolonged political campaign bringing in their wake
serious evils not the least of which is the ever increasing cost of
seeking public office, is challenged on constitutional grounds. More
precisely, the basic liberties of free speech and free press, freedom
of assembly and freedom of association are invoked to nullify the
act. Thus the question confronting this Court is one of
transcendental significance.
It is faced with the reconciliation of two values esteemed highly and
cherished dearly in a constitutional democracy. One is the freedom
of belief and of expression availed of by an individual whether by
himself alone or in association with others of similar persuasion, a
goal that occupies a place and to none in the legal hierarchy. The
other is the safeguarding of the equally vital right of suffrage by a
prohibition of the early nomination of candidates and the limitation
of the period of election campaign or partisan political activity, with
the hope that the time-consuming efforts, entailing huge
expenditures of funds and involving the risk of bitter rivalries that
may end in violence, to paraphrase the explanatory note of the
challenged legislation, could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very
essence of judicial duty. To paraphrase a landmark opinion, 1 when
we act in these matters we do so not on the assumption that to us
is granted the requisite knowledge to set matters right, but by
virtue of the responsibility we cannot escape under the
Constitution, one that history authenticates, to pass upon every
assertion of an alleged infringement of liberty, when our
competence is appropriately invoked.
This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory
Relief with Preliminary Injunction, filed on July 22, 1967, a
proceeding that should have been started in the of Court of First
Instance but treated by this Court as one of prohibition in view of
the seriousness and the urgency of the constitutional issue raised.
Petitioners challenged the validity of two new sections now included
in the Revised Election Code, under Republic Act No. 4880, which
was approved and took effect on June 17, 1967, prohibiting the too
early nomination of candidates 2 and limiting the period of election
campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political
activity" are likewise defined. The former according to Act No. 4880
"refers to any person aspiring for or seeking an elective public office
regarded of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party
as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or
promote the candidacy of a person or persons to a public office."
Then the acts were specified. There is a proviso that simple
expression of opinion and thoughts concerning the election shall
not be considered as part of an election campaign. There is the
further proviso that nothing stated in the Act "shall be understood
to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the
candidates for public office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an
incumbent councilor in the 4th District of Manila and the
Nacionalista Party official candidate for Vice-Mayor of Manila to
571
which he was subsequently elected on November 11, 1967;
petitioner Gonzales, on the other hand, is a private individual, a
registered voter in the City of Manila and a political leader of his co-
petitioner. It is their claim that "the enforcement of said Republic
Act No. 4880 in question [would] prejudice [their] basic rights...,
such as their freedom of speech, their freedom of assembly and
their right to form associations or societies for purpose not contrary
to law, guaranteed under the Philippine Constitution," and that
therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free
press, freedom of association and freedom of assembly with a
citation of two American Supreme Court decisions, 5 they asserted
that "there is nothing in the spirit or intention of the law that would
legally justify its passage and [enforcement] whether for reasons
of public policy, public order or morality, and that therefore the
enactment of Republic Act [No.] 4880 under, the guise of regulation
is but a clear and simple abridgment of the constitutional rights of
freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to law, ..."
There was the further allegation that the nomination of a candidate
and the fixing of period of election campaign are matters of political
expediency and convenience which only political parties can
regulate or curtail by and among themselves through self-restraint
or mutual understanding or agreement and that the regulation and
limitation of these political matters invoking the police power, in
the absence of clear and present danger to the state, would render
the constitutional rights of petitioners meaningless and without
effect.
To the plea of petitioners that after hearing, Republic Act No. 4880
be declared unconstitutional, null and void, respondent Commission
on Elections, in its answer filed on August 1, 1967, after denying
the allegations as to the validity of the act "for being mere
conclusions of law, erroneous at that," and setting forth special
affirmative defenses, procedural and substantive character, would
have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the
same date a resolution was passed by us to the following effect:
"At the hearing of case L-27833 (Arsenio Gonzales, et al. vs.
Commission on Elections), Atty. F. Reyes Cabigao appeared for the
petitioners and Atty. Ramon Barrios appeared for the respondent
and they were given a period of four days from today within which
to submit, simultaneously,, their respective memorandum in lieu of
oral argument."
On August 9, 1967, another resolution, self-explanatory in
character, came from this Court. Thus: "In ease G.R. No. L-27833
(Arsenio Gonzales, et al. vs. Commission on Elections), the Court,
with eight (8) Justice present, having deliberated on the issue of
the constitutionality of Republic Act No. 4880; and a divergence of
views having developed among the Justices as to the
constitutionality of section 50-B, pars. (c), (d) and (e) of the
Revised Election Code: considering the Constitutional provision that
"no treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the (Supreme)
Court' (sec. 10, Art, VII), the Court [resolved] to defer final
voting on the issue until after the return of the Justices now on
official leave."
The case was then reset for oral argument. At such hearing, one of
the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City
of Manila acting as counsel, assailed the validity of the challenged
legislation relying primarily on American Supreme Court opinion
that warn against curtailment in whatever guise or form of the
cherished freedoms of expression, of assemble and of association,
all embraced in the First Amendment of the United States
Constitution. Respondent Commission on Elections was duly
represented by Atty. Ramon Barrios.
Senator Lorenzo M. Tañada was asked to appear as amicus curiae.
That he did, arguing most impressively with a persuasive exposition
of the existence of undeniable conditions that imperatively called
for regulation of the electoral process and with full recognition that
Act No. 4880 could indeed be looked upon as a limitation on the
preferred rights of speech and press, of assembly and of
association. He did justify its enactment however under the clear
and present danger doctrine, there being the substantive evil of
elections, whether for national or local officials, being debased and
degraded by unrestricted campaigning, excess of partisanship and
undue concentration in politics with the loss not only of efficiency
in government but of lives as well.
The matter was then discussed in conference, but no final action
was taken. The divergence of views with reference to the
paragraphs above mentioned having continued, on Oct. 10, 1968,
this Court, by resolution, invited certain entities to submit
memoranda as amici curiae on the question of the validity of R.A.
Act No. 4880. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle
were included, among them. They did file their respective
memoranda with this Court and aided it in the consideration of the
constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection
was raised by five members of the Court. 6 It is their view that
respondent Commission on Elections not being sought to be
restrained from performing any specific act, this suit cannot be
characterized as other than a mere request for an advisory opinion.
Such a view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm, the original
stand that under the circumstances it could still rightfully be treated
as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision
of this Court on the constitutional question. Considering, therefore,
the importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that
[its] constitutionality ... be now resolved." 7 It may likewise be
added that the exceptional character of the situation that confronts
us, the paramount public interest, and the undeniable necessity for
a ruling, the national elections being, barely six months away,
reinforce our stand.
It would appear undeniable, therefore, that before us is an
appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left with
no choice then; we must act on the matter.
There is another procedural obstacle raised by respondent to be
hurdled. It is not insuperable. It is true that ordinarily, a party who
impugns the validity of a statute or ordinance must have a
substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement. 8 Respondent
cannot see such interest as being possessed by petitioners. It may
indicate the clarity of vision being dimmed, considering that one of
the petitioners was a candidate for an elective position. Even if such
were the case, however, the objection is not necessarily fatal. In
this jurisdiction, the rule has been sufficiently relaxed to allow a
taxpayer to bring an action to restrain the expenditure of public
funds through the enforcement of an invalid or unconstitutional
legislative measure. 9
2. In the answer of the respondent as well as its memorandum,
stress was laid on Republic Act No. 4880 as an exercise of the police
power of the state, designed to insure a free, orderly and honest
election by regulating "conduct which Congress has determined
harmful if unstrained and carried for a long period before elections
it necessarily entails huge expenditures of funds on the part of the
candidates, precipitates violence and even deaths, results in the
corruption of the electorate, and inflicts direful consequences upon
public interest as the vital affairs of the country are sacrificed to
purely partisan pursuits." Evidently for respondent that would
suffice to meet the constitutional questions raised as to the alleged
infringement of free speech, free press, freedom of assembly and
'freedom' of association. Would it were as simple as that?
572
An eloquent excerpt from a leading American
decision 10 admonishes though against such a cavalier approach.
"The case confronts us again with the duty our system places on
this Court to say where the individual's, freedom ends the State's
power begins. Choice on that border, now as always delicate, is
perhaps more so where the usual. presumption supporting
legislation is balanced by the preferred place given in our scheme
to the great, the indispensable democratic freedoms secured by the
First Amendment.... That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions. And it is the
character of the right, not of the limitation, which determines what
standard governs the choice..."
Even a leading American State court decision on a regulatory
measure dealing with elections, cited in the answer of respondent,
militates against a stand minimizing the importance and
significance of the alleged violation of individual rights: "As so
construed by us, it has not been made to appear that section 8189,
Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face
violative of any provision of either the state or Federal Constitution
on the subject of free speech or liberty of the press, nor that its
operation is in any wise subversive of any one's constitutional
liberty." 11 Another leading State decision is much more emphatic:
"Broad as the power of the legislature is with respect to regulation
of elections, that power is not wholly without limitation. Under the
guise of regulating elections, the legislature may not deprive a
citizen of the right of trial by jury. A person charged with its
violation may not be compelled to give evidence against himself. If
it destroys the right of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights
must be squarely met.lawphi1.nêt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may
prove illuminating. The primacy, the high estate accorded freedom
of expression is of course a fundamental postulate of our
constitutional system. No law shall be passed abridging the
freedom of speech or of the press .... 13 What does it embrace? At
the very least, free speech and free press may be identified with
the liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. 14 There is to be then
no previous restraint on the communication of views or subsequent
liability whether in libel suits, 15 prosecution for sedition, 16 or action
for damages, 17 or contempt proceedings 18 unless there be a clear
and present danger of substantive evil that Congress has a right to
prevent.
The vital need in a constitutional democracy for freedom of
expression is undeniable whether as a means of assuring individual
self-fulfillment, of attaining the truth, of assuring participation by
the people in social including political decision-making, and of
maintaining the balance between stability and change. 19 The trend
as reflected in Philippine and American decisions is to recognize the
broadcast scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle
that debate of public issue should be uninhibited, robust, and wide-
open. 20 It is not going too far, according to another American
decision, to view the function of free speech as inviting dispute. "It
may indeed best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger." 21 Freedom of speech and of the press
thus means something more than the right to approve existing
political beliefs or economic arrangements, to lend support to
official measures, to take refuge in the existing climate of opinion
on any matter of public consequence. So atrophied, the right
becomes meaningless. The right belongs as well, if not more, for
those who question, who do not conform, who differ. To paraphrase
Justice Holmes, it is freedom for the thought that we hate, no less
than for the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of
expression involves more than a technique for arriving at better
social judgments through democratic procedures. It comprehends
a vision of society, a faith and a whole way of life. The theory grew
out of an age that was awakened and invigorated by the idea of
new society in which man's mind was free, his fate determined by
his own powers of reason, and his prospects of creating a rational
and enlightened civilization virtually unlimited. It is put forward as
a prescription for attaining a creative, progressive, exciting and
intellectually robust community. It contemplates a mode of life
that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities. It spurns
the alternative of a society that is tyrannical, conformist, irrational
and stagnant." 23
From the language of the specified constitutional provision, it would
appear that the right is not susceptible of any limitation. No law
may be passed abridging the freedom of speech and of the press.
The realities of life in a complex society preclude however a literal
interpretation. Freedom of expression is not an absolute. It would
be too much to insist that at all times and under all circumstances
it should remain unfettered and unrestrained. There are other
societal values that press for recognition. How is it to be limited
then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that
may supply an acceptable criterion for permissible restriction.
Thus: "These are the 'clear and present danger' rule and the
'dangerous tendency' rule. The first, as interpreted in a number of
cases, means that the evil consequence of the comment or
utterance must be extremely serious and the degree of imminence
extremely high' before the utterance can be punished. The danger
to be guarded against is the 'substantive evil' sought to be
prevented." It has the advantage of establishing according to the
above decision "a definite rule in constitutional law. It provides the
criterion as to what words may be public established."
The Cabansag case likewise referred to the other test, the
"dangerous tendency" rule and explained it thus: "If the words
uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that
some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil which
the legislative body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a
sufficient danger to a fair administration of justice? Did its
remittance to the PCAC create a danger sufficiently imminent to
come under the two rules mentioned above?" The choice of this
Court was manifest and indisputable. It adopted the clear and
present danger test. As a matter of fact, in an earlier
decision, Primicias v. Fugoso, 25 there was likewise an implicit
acceptance of the clear and present danger doctrine.
Why repression is permissible only when the danger of substantive
evil is present is explained by Justice Branders thus: ... the evil
apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech,
not enforced silence." 26 For him the apprehended evil must be
"relatively serious." For "[prohibition] of free speech and assembly
is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to society." Justice Black
would go further. He would require that the substantive evil be
"extremely serious." 27 Only thus may there be a realization of the
ideal envisioned by Cardozo: "There shall be no compromise of the
freedom to think one's thoughts and speak them, except at those
extreme borders where thought merges into action." 28 It received
its original formulation from Holmes. Thus: "The question in every
case is whether the words used in such circumstances and of such
a nature as to create a clear and present danger that they will bring
573
about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree." 29
This test then as a limitation on freedom of expression is justified
by the danger or evil a substantive character that the state has a
right to prevent. Unlike the dangerous tendency doctrine, the
danger must not only be clear but also present. The term clear
seems to point to a causal connection with the danger of the
substantially evil arising from the utterance questioned. Present
refers to the time element. It used to be identified with imminent
and immediate danger. The danger must not only be probable but
very likely inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted
prohibits abridgment by law of freedom of speech or of the press.
It likewise extends the same protection to the right of the people
peaceably to assemble. As was pointed out by Justice Malcolm in
the case of United States v. Bustos, 30 this right is a necessary
consequence of our republican institution and complements the
right of free speech. Assembly means a right on the part of citizens
to meet peaceably for consultation in respect to public affairs. From
the same Bustos opinion: "Public policy, the welfare of society and
orderly administration of government have demanded protection
for public opinion." To paraphrase the opinion of Justice Rutledge
speaking for the majority in Thomas v. Collins,31 it was not by
accident or coincidence that the rights to freedom of speech and of
the press were coupled in a single guaranty with the rights of the
people peaceably to assemble and to petition the government for
redress of grievances. All these rights while not identical are
inseparable. They are cognate rights and the assurance afforded by
the clause of this section of the Bill of Rights wherein they are
contained, applies to all. As emphatically put in the leading case of
United States v. Cruikshank, 32 "the very idea of a government,
republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect to public affairs and to petition
for redress of grievances." 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.
5. Our Constitution likewise recognizes the freedom to form
association for purposes not contrary to law. 33 With or without a
constitutional provision of this character, it may be assumed that
the freedom to organize or to be a member of any group or society
exists. With this explicit provision, whatever doubts there may be
on the matter are dispelled. Unlike the cases of other guarantee
which are mostly American in origin, this particular freedom has an
indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas that it is primarily the
first amendment of her Constitution, which safeguards freedom of
speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society." 34 He
adopted the view of De Tocqueville on the importance and the
significance of the freedom to associate. Thus: "The most natural
privilege of man, next to the right of acting for himself, is that of
combining his exertions with those of his fellow creatures and of
acting in common with them. The right of association therefore
appears to me almost inalienable in its nature as the right of
personal liberty. No legislator can attack it without impairing the
foundation of society." 35
There can be no dispute as to the soundness of the above
observation of De Tocqueville. Since man lives in social it would be
a barren existence if he could not freely associate with others of
kindred persuasion or of congenial frame of mind. As a matter of
fact, the more common form of associations may be likely to be
fraternal, cultural, social or religious. Thereby, for almost
everybody, save for those exceptional few who glory in aloofness
and isolation life is enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association
should be on its political significance. If such a right were non-
existent then the likelihood of a one-party government is more than
a possibility. Authoritarianism may become unavoidable. Political
opposition will simply cease to exist; minority groups may be
outlawed, constitutional democracy as intended by the Constitution
may well become a thing of the past.
Political parties which, as is originally the case, assume the role
alternately of being in the majority or in the minority as the will of
the electorate dictates, will lose their constitutional protection. It is
undeniable therefore, that the utmost scope should be afforded this
freedom of association.
It is indispensable not only for its enhancing the respect that should
be accorded a human personality but equally so for its assurance
that the wishes of any group to oppose whatever for the moment
is the party in power and with the help of the electorate to set up
its own program of government would not be nullified or frustrated.
To quote from Douglas anew: "Justice Frankfurter thought that
political and academic affiliations have a preferred position under
the due process version of the First Amendment. But the
associational rights protected by the First Amendment are in my
view much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in religion.
In my view, government can neither legislate with respect to nor
probe the intimacies of political, spiritual, or intellectual
relationships in the myriad of lawful societies and groups, whether
popular or unpopular, that exist in this country." 36
Nonetheless, the Constitution limits this particular freedom in the
sense that there could be an abridgment of the right to form
associations or societies when their purposes are "contrary to law".
How should the limitation "for purposes not contrary to law" be
interpreted? It is submitted that it is another way of expressing the
clear and present danger rule for unless an association or society
could be shown to create an imminent danger to public safety, there
is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course
consistent with the Free Society envisioned by the First
Amendment. For the views a citizen entertains, the beliefs he
harbors, the utterances he makes, the ideology he embraces, and
the people he associates with are no concern to government — until
and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse
and the dictatorships both on the Left and on the Right." 38 With the
above principles in mind, we now consider the validity of the
prohibition in Republic Act No. 4880 of the too early nomination of
candidates and the limitation found therein on the period of election
campaign or partisan political activity alleged by petitioners to
offend against the rights of free speech, free press, freedom of
assembly and freedom of association. In effect what are asked to
do is to declare the act void on its face evidence having been
introduced as to its actual operation. There is respectable authority
for the court having the power to so act. Such fundamental liberties
are accorded so high a place in our constitutional scheme that any
alleged infringement manifest in the wording of statute cannot be
allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we
cannot ignore of course the legislative declaration that its
enactment was in response to a serious substantive evil affecting
the electoral process, not merely in danger of happening, but
actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the
realities of the situation. Nor can we ignore the express legislative
purpose apparent in the proviso "that simple expressions of opinion
and thoughts concerning the election shall not be considered as
part of an election campaign," and in the other proviso "that
nothing herein stated shall be understood to prevent any person
from expressing his views on current political problems or issues,
or from mentioning the names of the candidates for public office
whom he supports." Such limitations qualify the entire provision
restricting the period of an election campaign or partisan political
activity.
574
The prohibition of too early nomination of candidates presents a
question that is not too formidable in character. According to the
act: "It shall be unlawful for any political party political committee,
or political group to nominate candidates for any elective public
officio voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other elective
public, office earlier than ninety days immediately preceding an
election." 40
The right of association is affected. Political parties have less
freedom as to the time during which they may nominate
candidates; the curtailment is not such, however, as to render
meaningless such a basic right. Their scope of legitimate activities,
save this one, is not unduly narrowed. Neither is there infringement
of their freedom to assemble. They can do so, but not for such a
purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan
political activity" calls for a more intensive scrutiny. According to
Republic Act No. 4880: "It is unlawful for any person whether or
not a voter or candidate, or for any group or association of persons
whether or not a political party or political committee, to engage in
an election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an
election involving a public office voted for at large and ninety days
immediately preceding an election for any other elective public
office. The term 'candidate' refers to any person aspiring for or
seeking an elective public office, regardless of whether or not said
person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate. The term 'election
campaign' or 'partisan political activity' refers to acts designed to
have a candidate elected or not or promote the candidacy of a
person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal
constitutional infirmity of vagueness and may be stricken down.
What other conclusion can there be extending as it does to so wide
and all-encompassing a front that what is valid, being a legitimate
exercise of press freedom as well as freedom of assembly, becomes
prohibited? That cannot be done; such an undesirable eventuality,
this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible
statutory vagueness may be applied to a statute having inhibiting
effect on speech; a man may the less be required to act at his peril
here, because the free dissemination of ideas may be the
loser.41 Where the statutory provision then operates to inhibit the
exercise of individual freedom affirmatively protected by the
Constitution, the imputation of vagueness sufficient to invalidate
the statute is inescapable. 42 The language of Justice Douglas, both
appropriate and vigorous, comes to mind: "Words which are vague
and fluid ... may be as much of a trap for the innocent as the ancient
laws of Caligula." 43 Nor is the reason difficult to discern: ."These
freedoms are delicate and vulnerable, as well as supremely
precious in our society. The threat of sanctions may deter their
exercise almost as potently as the actual application of
sanctions." 44
7. The constitutional objections are thus formidable. It cannot be
denied that the limitations thus imposed on the constitutional rights
of free speech and press, of assembly, and of association cut
deeply, into their substance. This on the one hand.
On the other, it cannot be denied either that evils substantial in
character taint the purity of the electoral process. There can be
under the circumstances then no outright condemnation of the
statute. It could not be said to be unwarranted, much less arbitrary.
There is need for refraining from the outright assumption that the
constitutional infirmity is apparent from a mere reading thereof.
For under circumstances that manifest abuses of the gravest
character, remedies much more drastic than what ordinarily would
suffice would indeed be called for. The justification alleged by the
proponents of the measures weighs heavily with the members of
the Court, though in varying degrees, in the appraisal of the
aforesaid restrictions to which such precious freedoms are
subjected. They are not unaware of the clear and present danger
that calls for measures that may bear heavily on the exercise of the
cherished rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there
is no limit to the allowable limitations on such constitutional rights.
The clear and present danger doctrine rightly viewed requires that
not only should there be an occasion for the imposition of such
restrictions but also that they be limited in scope.
There are still constitutional questions of a serious character then
to be faced. The practices which the act identifies with "election
campaign" or "partisan political activity" must be such that they are
free from the taint of being violative of free speech, free press,
freedom of assembly, and freedom of association. What removes
the sting from constitutional objection of vagueness is the
enumeration of the acts deemed included in the terms "election
campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs,
committees or other groups of persons for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a party or candidate; (b) holding political conventions,
caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a candidate or party;(c)
making speeches, announcements or commentaries or holding
interviews for or against the election or any party or candidate for
public office; (d) publishing or distributing campaign literature or
materials; (e) directly or indirectly soliciting votes and/or
undertaking any campaign or propaganda for or against any party;
(f) giving, soliciting, or receiving contributions for election
campaign purposes, either directly or indirectly." 45 As thus limited
the objection that may be raised as to vagueness has been
minimized, if not totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to
agree, is of the view that no unconstitutional infringement exists
insofar as the formation of organization, associations, clubs,
committees, or other groups of persons for the purpose of soliciting
votes or undertaking any campaign or propaganda or both for or
against a candidate or party is restricted 47 and that the prohibition
against giving, soliciting, or receiving contribution for election
purposes, either directly or indirectly, is equally free from
constitutional infirmity. 48
The restriction on freedom of assembly as confined to holding
political conventions, caucuses, conferences, meetings, rallies,
parades or other similar assemblies for the purpose of soliciting
votes or undertaking any campaign or propaganda or both for or
against a candidate or party, 49 leaving untouched all other
legitimate exercise of such poses a more difficult question.
Nevertheless, after a thorough consideration, and with the same
Justices entertaining the opposite conviction, we reject the
contention that it should be annulled. Candor compels the
admission that the writer of this opinion suffers from the gravest
doubts. For him, such statutory prescription could very well be
within the outermost limits of validity, beyond which lies the abyss
of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or
"partisan political activity" tax to the utmost the judicial
predisposition to view with sympathy legislative efforts to regulate
election practices deemed inimical, because of their collision with
the preferred right of freedom of expression. From the outset, such
provisions did occasion divergence of views among the members of
the Court. Originally only a minority was for their being adjudged
as invalid. It is not so. any more. 50 This is merely to emphasize
that the scope of the curtailment to which freedom of expression
may be subjected is not foreclosed by the recognition of the
575
existence of a clear and present danger of a substantive evil, the
debasement of the electoral process.
The majority of the Court is thus of the belief that the solicitation
or undertaking of any campaign or propaganda whether directly or
indirectly, by an individual, 51 the making of speeches,
announcements or commentaries or holding interview for or against
the election for any party or candidate for public office, 52 or the
publication or distribution of campaign literature or
materials, 53 suffer from the corrosion of invalidity. It lacks however
one more affirmative vote to call for a declaration of
unconstitutionality.
This is not to deny that Congress was indeed called upon to seek
remedial measures for the far-from-satisfactory condition arising
from the too-early nomination of candidates and the necessarily
prolonged, political campaigns. The direful consequences and the
harmful effects on the public interest with the vital affairs of the
country sacrificed many a time to purely partisan pursuits were
known to all. Moreover, it is no exaggeration to state that violence
and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity
for dishonesty and corruption, with the right to suffrage being
bartered, was further magnified.
Under the police power then, with its concern for the general
welfare and with the commendable aim of safe-guarding the right
of suffrage, the legislative body must have felt impelled to impose
the foregoing restrictions. It is understandable for Congress to
believe that without the limitations thus set forth in the challenged
legislation, the laudable purpose of Republic Act No. 4880 would be
frustrated and nullified. Whatever persuasive force such approach
may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that
the above poisons of the statute now assailed has passed the
constitutional test is devoid of merit.
It only indicates that for the majority, the prohibition of any
speeches, announcements or commentaries, or the holding of
interviews for or against the election of any party or candidate for
public office and the prohibition of the publication or distribution of
campaign literature or materials, against the solicitation of votes
whether directly or indirectly, or the undertaking of any campaign
literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the
challenged statute prohibits what under the Constitution cannot by
any law be abridged.
More specifically, in terms of the permissible scope of legislation
that otherwise could be justified under the clear and present danger
doctrine, it is the consideration opinion of the majority, though
lacking the necessary vote for an adjudication of invalidity, that the
challenged statute could have been more narrowly drawn and the
practices prohibited more precisely delineated to satisfy the
constitutional requirements as to a valid limitation under the clear
and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that
the absence of such reasonable and definite standards in a
legislation of its character is fatal. 54 Where, as in the case of the
above paragraphs, the majority of the Court could discern "an over
breadth that makes possible oppressive or capricious
application" 55 of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose
constitutionally subject to control or prevent activities state
regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms. 56
It is undeniable, therefore, that even though the governmental
purposes be legitimate and substantial, they cannot be pursued by
means that broadly stifle fundamental personal liberties when the
end can be more narrowly achieved. 57 For precision of regulation may it not forego its obligation, in proper cases, to apply the
is the touchstone in an area so closely related to our most precious necessary,..." 61
freedoms. 58
We recognize the wide discretion accorded Congress to protect vital
Under the circumstances then, a majority of the Court feels interests. Considering the responsibility incumbent on the judiciary,
compelled to view the statutory provisions in question as it is not always possible, even with the utmost sympathy shown for
unconstitutional on their face inasmuch as they appear to range too the legislative choice of means to cure an admitted evil, that the
widely and indiscriminately across the fundamental liberties legislative judgment arrived at, with its possible curtailment of the
associated with freedom of the mind. 59 preferred freedoms, be accepted uncritically. There may be times,
and this is one of them, with the majority, with all due reject to a
coordinate branch, unable to extend their approval to the aforesaid
Such a conclusion does not find favor with the other members of
specific provisions of one of the sections of the challenged statute.
the Court. For this minority group, no judgment of nullity insofar as
The necessary two-third vote, however, not being obtained, there
the challenged sections are concerned is called for. It cannot accept
is no occasion for the power to annul statutes to come into play.
the conclusion that the limitations thus imposed on freedom of
expression vitiated by their latitudinarian scope, for Congress was
not at all insensible to the problem that an all-encompassing Such being the case, it is the judgment of this Court that Republic
coverage of the practices sought to be restrained would seriously Act No. 4880 cannot be declared unconstitutional.
pose.
WHEREFORE, the petition is dismissed and the writ of prayed for
Such an approach finds support in the exposition made by the denied. Without costs.
author of the measure, Senator Lorenzo M. Tañada, appearing
before us as amicus curiae. He did clearly explain that such
provisions were deemed by the legislative body to be part and
parcel of the necessary and appropriate response not merely to a
clear and present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has invariably marred
election campaigns and partisan political activities in this country.
He did invite our attention likewise to the well-settled doctrine that
in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless clearly
repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already

mentioned, precisely placed in the state as a manifestation of the
undeniable legislative determination not to transgress the preferred
freedom of speech, of press, of assembly and of association. It is
thus provided: "That simple expressions or opinion and thoughts
concerning the election shall not be considered as part of an
election campaign [and that nothing in the Act] shall be understood
to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the
candidates for public office whom he supports. 60 If properly
implemented then, as it ought to, the barrier to free, expression
becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess
sufficient persuasive force to blunt whatever cutting edge may be
ascribed to the fears entertained that Congress failed to abide by
what the Constitution commands as far as freedom of the mind and
of association are concerned. It is its opinion that it would be
premature to say the least, for a judgment of nullity of any
provision found in Republic Act No. 4880. The need for adjudication
arises only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called
upon, under this approach, to anticipate each and every problem
that may arise. It is time enough to consider it when there is in fact
an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative

concern to cleanse, and, if possible, render spotless, the electoral
process. There is full acceptance by the Court of the power of
Congress, under narrowly drawn legislation to impose the
necessary restrictions to what otherwise would be liberties
traditionally accorded the widest scope and the utmost deference,
freedom of speech and of the press, of assembly, and of
association. We cannot, however, be recreant to the trust reposed
on us; we are called upon to safeguard individual rights. In the
language of Justice Laurel: "This Court is perhaps the last bulwark
of constitutional government. It shall not obstruct the popular will
as manifested through proper organs... But, in the same way that
it cannot renounce the life breathed into it by the Constitution, so

576
A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of
Atty. MARCIAL A. EDILION (IBP Administrative Case No.
MDD-1)
RESOLUTION
CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing
attorney in the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP
for short) Board of Governors unanimously adopted Resolution No.
75-65 in Administrative Case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon)
recommending to the Court the removal of the name of the
respondent from its Roll of Attorneys for "stubborn refusal to pay
his membership dues" to the IBP since the latter's constitution
notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B.
Neri, submitted the said resolution to the Court for consideration
and approval, pursuant to paragraph 2, Section 24, Article III of
the By-Laws of the IBP, which reads:
.... Should the delinquency further continue until the following June
29, the Board shall promptly inquire into the cause or causes of the
continued delinquency and take whatever action it shall deem
appropriate, including a recommendation to the Supreme Court for
the removal of the delinquent member's name from the Roll of
Attorneys. Notice of the action taken shall be sent by registered
mail to the member and to the Secretary of the Chapter concerned.
On January 27, 1976, the Court required the respondent to
comment on the resolution and letter adverted to above; he
submitted his comment on February 23, 1976, reiterating his
refusal to pay the membership fees due from him.
On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: on March 24,
1976, they submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the
hearing, the parties were required to submit memoranda in
amplification of their oral arguments. The matter was thenceforth
submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's
pleadings would show that the propriety and necessity of the
integration of the Bar of the Philippines are in essence conceded.
The respondent, however, objects to particular features of Rule of
Court 139-A (hereinafter referred to as the Court Rule) 1 — in
accordance with which the Bar of the Philippines was integrated —
and to the provisions of par. 2, Section 24, Article III, of the IBP
By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the
Supreme Court the removal of a delinquent member's name from
the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
IBP By-Laws (supra), whereas the authority of the Court to issue
the order applied for is found in Section 10 of the Court Rule, which
reads:
SEC. 10. Effect of non-payment of dues. — Subject to the
provisions of Section 12 of this Rule, default in the payment of
annual dues for six months shall warrant suspension of membership
in the Integrated Bar, and default in such payment for one year
577
shall be a ground for the removal of the name of the delinquent
member from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP
is stated in these words of the Court Rule:
SECTION 1. Organization. — There is hereby organized an official
national body to be known as the 'Integrated Bar of the Philippines,'
composed of all persons whose names now appear or may hereafter
be included in the Roll of Attorneys of the Supreme Court.
The obligation to pay membership dues is couched in the following
words of the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated Bar
shall pay such annual dues as the Board of Governors shall
determine with the approval of the Supreme Court. ...
The core of the respondent's arguments is that the above provisions
constitute an invasion of his constitutional rights in the sense that
he is being compelled, as a pre-condition to maintaining his status
as a lawyer in good standing, to be a member of the IBP and to pay
the corresponding dues, and that as a consequence of this
compelled financial support of the said organization to which he is
admittedly personally antagonistic, he is being deprived of the
rights to liberty and property guaranteed to him by the
Constitution. Hence, the respondent concludes, the above
provisions of the Court Rule and of the IBP By-Laws are void and of
no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to
strike his name from the Roll of Attorneys, contending that the said
matter is not among the justiciable cases triable by the Court but
is rather of an "administrative nature pertaining to an
administrative body."
The case at bar is not the first one that has reached the Court
relating to constitutional issues that inevitably and inextricably
come up to the surface whenever attempts are made to regulate
the practice of law, define the conditions of such practice, or revoke
the license granted for the exercise of the legal profession.
The matters here complained of are the very same issues raised in
a previous case before the Court, entitled "Administrative Case No.
526, In the Matter of the Petition for the Integration of the Bar of
the Philippines, Roman Ozaeta, et al., Petitioners." The Court
exhaustively considered all these matters in that case in its
Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the
unanimous pronouncement that it was
... fully convinced, after a thoroughgoing conscientious study of all
the arguments adduced in Adm. Case No. 526 and the authoritative
materials and the mass of factual data contained in the exhaustive
Report of the Commission on Bar Integration, that the integration
of the Philippine Bar is 'perfectly constitutional and legally
unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer
must belong, as distinguished from bar associations organized by
individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every
member of the Bar is afforded an opportunity to do his share in
carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction
of the State, an integrated Bar is an official national body of which
all lawyers are required to be members. They are, therefore,
subject to all the rules prescribed for the governance of the Bar,
including the requirement of payment of a reasonable annual fee
for the effective discharge of the purposes of the Bar, and
adherence to a code of professional ethics or professional
responsibility breach of which constitutes sufficient reason for
investigation by the Bar and, upon proper cause appearing, a
recommendation for discipline or disbarment of the offending
member. 2
The integration of the Philippine Bar was obviously dictated by
overriding considerations of public interest and public welfare to
such an extent as more than constitutionally and legally justifies
the restrictions that integration imposes upon the personal
interests and personal convenience of individual lawyers. 3
Apropos to the above, it must be stressed that all legislation
directing the integration of the Bar have been uniformly and
universally sustained as a valid exercise of the police power over
an important profession. The practice of law is not a vested right
but a privilege, a privilege moreover clothed with public interest
because a lawyer owes substantial duties not only to his client, but
also to his brethren in the profession, to the courts, and to the
nation, and takes part in one of the most important functions of the
State — the administration of justice — as an officer of the
court. 4 The practice of law being clothed with public interest, the
holder of this privilege must submit to a degree of control for the
common good, to the extent of the interest he has created. As the
U. S. Supreme Court through Mr. Justice Roberts explained, the
expression "affected with a public interest" is the equivalent of
"subject to the exercise of the police power" (Nebbia vs. New York,
291 U.S. 502).
When, therefore, Congress enacted Republic Act No.
6397 5 authorizing the Supreme Court to "adopt rules of court to
effect the integration of the Philippine Bar under such conditions as
it shall see fit," it did so in the exercise of the paramount police
power of the State. The Act's avowal is to "raise the standards of
the legal profession, improve the administration of justice, and
enable the Bar to discharge its public responsibility more
effectively." Hence, the Congress in enacting such Act, the Court in
ordaining the integration of the Bar through its Resolution
promulgated on January 9, 1973, and the President of the
Philippines in decreeing the constitution of the IBP into a body
corporate through Presidential Decree No. 181 dated May 4, 1973,
were prompted by fundamental considerations of public welfare and
motivated by a desire to meet the demands of pressing public
necessity.
The State, in order to promote the general welfare, may interfere
with and regulate personal liberty, property and occupations.
Persons and property may be subjected to restraints and burdens
in order to secure the general prosperity and welfare of the State
(U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes,
"Salus populi est supreme lex." The public welfare is the supreme
law. To this fundamental principle of government the rights of
individuals are subordinated. Liberty is a blessing without which life
is a misery, but liberty should not be made to prevail over authority
because then society win fall into anarchy (Calalang vs. Williams,
70 Phil. 726). It is an undoubted power of the State to restrain
some individuals from all freedom, and all individuals from some
freedom.
But the most compelling argument sustaining the constitutionality
and validity of Bar integration in the Philippines is the explicit
unequivocal grant of precise power to the Supreme Court by
Section 5 (5) of Article X of the 1973 Constitution of the Philippines,
which reads:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro.
procedure in all courts, and the admission to the practice of law and
the integration of the Bar ...,
578
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act, the
Supreme Court may adopt rules of Court to effect the integration
of the Philippine Bar under such conditions as it shall see fit in order
to raise the standards of the legal profession, improve the
administration of justice, and enable the Bar to discharge its public
responsibility more effectively.
Quite apart from the above, let it be stated that even without the
enabling Act (Republic Act No. 6397), and looking solely to the
language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice
and procedure in all courts, and the admission to the practice of
law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases
regarding the admission to and supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal
profession, his practice of law and his exercise of the said
profession, which affect the society at large, were (and are) subject
to the power of the body politic to require him to conform to such
regulations as might be established by the proper authorities for
the common good, even to the extent of interfering with some of
his liberties. If he did not wish to submit himself to such reasonable
interference and regulation, he should not have clothed the public
with an interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now
concisely deal with them seriatim.
1. The first objection posed by the respondent is that the Court is
without power to compel him to become a member of the
Integrated Bar of the Philippines, hence, Section 1 of the Court Rule
is unconstitutional for it impinges on his constitutional right of
freedom to associate (and not to associate). Our answer is: To
compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of
which he is not already a member. He became a member of the Bar
when he passed the Bar examinations. 7 All that integration actually
does is to provide an official national organization for the well-
defined but unorganized and incohesive group of which every
lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections as
he chooses. The only compulsion to which he is subjected is the
payment of annual dues. The Supreme Court, in order to further
the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving
the profession in this fashion be shared by the subjects and
beneficiaries of the regulatory program — the lawyers.9
Assuming that the questioned provision does in a sense compel a
lawyer to be a member of the Integrated Bar, such compulsion is
justified as an exercise of the police power of the State. 10
2. The second issue posed by the respondent is that the provision
of the Court Rule requiring payment of a membership fee is void.
We see nothing in the Constitution that prohibits the Court, under
its constitutional power and duty to promulgate rules concerning
the admission to the practice of law and the integration of the
Philippine Bar (Article X, Section 5 of the 1973 Constitution) —
which power the respondent acknowledges — from requiring
members of a privileged class, such as lawyers are, to pay a
reasonable fee toward defraying the expenses of regulation of the
profession to which they belong. It is quite apparent that the fee is
indeed imposed as a regulatory measure, designed to raise funds
for carrying out the objectives and purposes of integration. 11

3. The respondent further argues that the enforcement of the

penalty provisions would amount to a deprivation of property
without due process and hence infringes on one of his constitutional
rights. Whether the practice of law is a property right, in the sense
of its being one that entitles the holder of a license to practice a
profession, we do not here pause to consider at length, as it clear
that under the police power of the State, and under the necessary
powers granted to the Court to perpetuate its existence, the
respondent's right to practise law before the courts of this country
should be and is a matter subject to regulation and inquiry. And, if
the power to impose the fee as a regulatory measure is recognize,
then a penalty designed to enforce its payment, which penalty may
be avoided altogether by payment, is not void as unreasonable or
arbitrary. 12

But we must here emphasize that the practice of law is not a

property right but a mere privilege, 13 and as such must bow to the
inherent regulatory power of the Court to exact compliance with
the lawyer's public responsibilities.

4. Relative to the issue of the power and/or jurisdiction of the

Supreme Court to strike the name of a lawyer from its Roll of
Attorneys, it is sufficient to state that the matters of admission,
suspension, disbarment and reinstatement of lawyers and their
regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities, and
the authorities holding such are legion. 14

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the
report of the Board of Bar Commissioners in a disbarment
proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The power to
regulate the conduct and qualifications of its officers does not
depend upon constitutional or statutory grounds. It is a power
which is inherent in this court as a court — appropriate, indeed
necessary, to the proper administration of justice ... the argument
that this is an arbitrary power which the court is arrogating to itself
or accepting from the legislative likewise misconceives the nature
of the duty. It has limitations no less real because they are
inherent. It is an unpleasant task to sit in judgment upon a brother
member of the Bar, particularly where, as here, the facts are
disputed. It is a grave responsibility, to be assumed only with a
determination to uphold the Ideals and traditions of an honorable
profession and to protect the public from overreaching and fraud.
The very burden of the duty is itself a guaranty that the power will
not be misused or prostituted. ..."

The Court's jurisdiction was greatly reinforced by our 1973

Constitution when it explicitly granted to the Court the power to
"Promulgate rules concerning pleading, practice ... and the
admission to the practice of law and the integration of the Bar ...
(Article X, Sec. 5(5) the power to pass upon the fitness of the
respondent to remain a member of the legal profession is indeed
undoubtedly vested in the Court.

We thus reach the conclusion that the provisions of Rule of Court

139-A and of the By-Laws of the Integrated Bar of the Philippines
complained of are neither unconstitutional nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the

Court that the respondent Marcial A. Edillon should be as he is
hereby disbarred, and his name is hereby ordered stricken from the
Roll of Attorneys of the Court.

579
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION
(SSSEA), DIONISION T. BAYLON, RAMON MODESTO,
JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY,
SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO
MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS),
HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON
CITY, respondents.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the
Regional Trial Court can enjoin the Social Security System
Employees Association (SSSEA) from striking and order the striking
employees to return to work. Collaterally, it is whether or not
employees of the Social Security System (SSS) have the right to
strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of
Quezon City a complaint for damages with a prayer for a writ of
preliminary injunction against petitioners, alleging that on June 9,
1987, the officers and members of SSSEA staged an illegal strike
and baricaded the entrances to the SSS Building, preventing non-
striking employees from reporting for work and SSS members from
transacting business with the SSS; that the strike was reported to
the Public Sector Labor - Management Council, which ordered the
strikers to return to work; that the strikers refused to return to
work; and that the SSS suffered damages as a result of the strike.
The complaint prayed that a writ of preliminary injunction be issued
to enjoin the strike and that the strikers be ordered to return to
work; that the defendants (petitioners herein) be ordered to pay
damages; and that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act
on the union's demands, which included: implementation of the
provisions of the old SSS-SSSEA collective bargaining agreement
(CBA) on check-off of union dues; payment of accrued overtime
pay, night differential pay and holiday pay; conversion of
temporary or contractual employees with six (6) months or more
of service into regular and permanent employees and their
entitlement to the same salaries, allowances and benefits given to
other regular employees of the SSS; and payment of the children's
allowance of P30.00, and after the SSS deducted certain amounts
from the salaries of the employees and allegedly committed acts of
discrimination and unfair labor practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining
order pending resolution of the application for a writ of preliminary
injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion
to dismiss alleging the trial court's lack of jurisdiction over the
subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an
opposition, reiterating its prayer for the issuance of a writ of
injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page
order, the court a quo denied the motion to dismiss and converted
the restraining order into an injunction upon posting of a bond,
after finding that the strike was illegal [Rollo, pp. 83- 86]. As
petitioners' motion for the reconsideration of the aforesaid order
was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed
a petition for certiorari and prohibition with preliminary injunction
before this Court. Their petition was docketed as G.R. No. 79577.
In a resolution dated October 21, 1987, the Court, through the
Third Division, resolved to refer the case to the Court of Appeals.
Petitioners filed a motion for reconsideration thereof, but during its
pendency the Court of Appeals on March 9,1988 promulgated its
decision on the referred case [Rollo, pp. 130-137]. Petitioners
moved to recall the Court of Appeals' decision. In the meantime,
the Court on June 29,1988 denied the motion for reconsideration
in G.R. No. 97577 for being moot and academic. Petitioners' motion
580
to recall the decision of the Court of Appeals was also denied in
view of this Court's denial of the motion for reconsideration [Rollo,
pp. 141- 143]. Hence, the instant petition to review the decision of
the Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a
temporary restraining order enjoining the petitioners from staging
another strike or from pursuing the notice of strike they filed with
the Department of Labor and Employment on January 25, 1989 and
to maintain the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply and
supplemental reply filed by petitioners, considered the issues joined
and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had
no jurisdiction to hear the case initiated by the SSS and to issue
the restraining order and the writ of preliminary injunction, as
jurisdiction lay with the Department of Labor and Employment or
the National Labor Relations Commission, since the case involves a
labor dispute.
On the other hand, the SSS advances the contrary view, on the
ground that the employees of the SSS are covered by civil service
laws and rules and regulations, not the Labor Code, therefore they
do not have the right to strike. Since neither the DOLE nor the NLRC
has jurisdiction over the dispute, the Regional Trial Court may
enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with
preliminary injunction filed by petitioners, the Court of Appeals held
that since the employees of the SSS, are government employees,
they are not allowed to strike, and may be enjoined by the Regional
Trial Court, which had jurisdiction over the SSS' complaint for
damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in
deciding whether or not the Court of Appeals erred in finding that
the Regional Trial Court did not act without or in excess of
jurisdiction when it took cognizance of the case and enjoined the
strike are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case
initiated by the SSS and to enjoin the strikers from continuing with
the strike and to order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human
Rights, provides that the State "shall guarantee the rights of all
workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right
to strike in accordance with law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all
workers and employees, including those in the public sector, to
strike. But the Constitution itself fails to expressly confirm this
impression, for in the Sub-Article on the Civil Service Commission,
it provides, after defining the scope of the civil service as "all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters," that "[t]he right to self-
organization shall not be denied to government employees" [Art.
IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also
provides that "[tlhe right of the people, including those employed
in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not abridged" [Art.
III, Sec. 8]. Thus, while there is no question that the Constitution
recognizes the right of government employees to organize, it is
silent as to whether such recognition also includes the right to
strike.
Resort to the intent of the framers of the organic law becomes
helpful in understanding the meaning of these provisions. A reading
of the proceedings of the Constitutional Commission that drafted
the 1987 Constitution would show that in recognizing the right of
government employees to organize, the commissioners intended to
limit the right to the formation of unions or associations only,
without including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the
provision that "[tlhe right to self-organization shall not be denied
to government employees" [Art. IX(B), Sec. 2(5)], in answer to the
apprehensions expressed by Commissioner Ambrosio B. Padilla,
Vice-President of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long.
When we proposed this amendment providing for self-organization
of government employees, it does not mean that because they have
the right to organize, they also have the right to strike. That is a
different matter. We are only talking about organizing, uniting as a
union. With regard to the right to strike, everyone will remember
that in the Bill of Rights, there is a provision that the right to form
associations or societies whose purpose is not contrary to law shall
not be abridged. Now then, if the purpose of the state is to prohibit
the strikes coming from employees exercising government
functions, that could be done because the moment that is
prohibited, then the union which will go on strike will be an illegal
union. And that provision is carried in Republic Act 875. In Republic
Act 875, workers, including those from the government-owned and
controlled, are allowed to organize but they are prohibited from
striking. So, the fear of our honorable Vice- President is unfounded.
It does not mean that because we approve this resolution, it carries
with it the right to strike. That is a different matter. As a matter of
fact, that subject is now being discussed in the Committee on Social
Justice because we are trying to find a solution to this problem. We
know that this problem exist; that the moment we allow anybody
in the government to strike, then what will happen if the members
of the Armed Forces will go on strike? What will happen to those
people trying to protect us? So that is a matter of discussion in the
Committee on Social Justice. But, I repeat, the right to form an
organization does not carry with it the right to strike. [Record of
the Constitutional Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which
was repealed by the Labor Code (P.D. 442) in 1974, expressly
banned strikes by employees in the Government, including
instrumentalities exercising governmental functions, but excluding
entities entrusted with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the Government. — The
terms and conditions of employment in the Government, including
any political subdivision or instrumentality thereof, are governed by
law and it is declared to be the policy of this Act that employees
therein shall not strike for the purpose of securing changes or
modification in their terms and conditions of employment. Such
employees may belong to any labor organization which does not
impose the obligation to strike or to join in strike: Provided,
however, That this section shall apply only to employees employed
in governmental functions and not those employed in proprietary
functions of the Government including but not limited to
governmental corporations.
No similar provision is found in the Labor Code, although at one
time it recognized the right of employees of government
corporations established under the Corporation Code to organize
and bargain collectively and those in the civil service to "form
organizations for purposes not contrary to law" [Art. 244, before its
amendment by B.P. Blg. 70 in 1980], in the same breath it provided
that "[t]he terms and conditions of employment of all government
employees, including employees of government owned and
581
controlled corporations, shall be governed by the Civil Service Law,
rules and regulations" [now Art. 276]. Understandably, the Labor
Code is silent as to whether or not government employees may
strike, for such are excluded from its coverage [Ibid]. But then the
Civil Service Decree [P.D. No. 807], is equally silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the
right of government employees to organize, the President issued
E.O. No. 180 which provides guidelines for the exercise of the right
to organize of government employees. In Section 14 thereof, it is
provided that "[t]he Civil Service law and rules governing concerted
activities and strikes in the government service shall be observed,
subject to any legislation that may be enacted by Congress." The
President was apparently referring to Memorandum Circular No. 6,
s. 1987 of the Civil Service Commission under date April 21, 1987
which, "prior to the enactment by Congress of applicable laws
concerning strike by government employees ... enjoins under pain
of administrative sanctions, all government officers and employees
from staging strikes, demonstrations, mass leaves, walk-outs and
other forms of mass action which will result in temporary stoppage
or disruption of public service." The air was thus cleared of the
confusion. At present, in the absence of any legislation allowing
government employees to strike, recognizing their right to do so,
or regulating the exercise of the right, they are prohibited from
striking, by express provision of Memorandum Circular No. 6 and
as implied in E.O. No. 180. [At this juncture, it must be stated that
the validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against
strikes?
The Court is of the considered view that they are. Considering that
under the 1987 Constitution "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters" [Art. IX(B), Sec. .2(l) see also
Sec. 1 of E.O. No. 180 where the employees in the civil service are
denominated as "government employees"] and that the SSS is one
such government-controlled corporation with an original charter,
having been created under R.A. No. 1161, its employees are part
of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295,
November 24,1988] and are covered by the Civil Service
Commission's memorandum prohibiting strikes. This being the
case, the strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v.
Minister of Labor and Employment [G.R. No. 60403, August 3,
1:983, 124 SCRA 11 is relevant as it furnishes the rationale for
distinguishing between workers in the private sector and
government employees with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms
and conditions of employment in the Government, including any
political subdivision or instrumentality thereof are governed by law"
(Section 11, the Industrial Peace Act, R.A. No. 875, as amended
and Article 277, the Labor Code, P.D. No. 442, as amended). Since
the terms and conditions of government employment are fixed by
law, government workers cannot use the same weapons employed
by workers in the private sector to secure concessions from their
employers. The principle behind labor unionism in private industry
is that industrial peace cannot be secured through compulsion by
law. Relations between private employers and their employees rest
on an essentially voluntary basis. Subject to the minimum
requirements of wage laws and other labor and welfare legislation,
the terms and conditions of employment in the unionized private
sector are settled through the process of collective bargaining. In
government employment, however, it is the legislature and, where
properly given delegated power, the administrative heads of
government which fix the terms and conditions of employment. And
this is effected through statutes or administrative circulars, rules,
and regulations, not through collective bargaining agreements. [At
p. 13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil regulations [Art. 276]. More importantly, E.O. No. 180 vests the
Service, in his position paper submitted to the 1971 Constitutional Public Sector Labor - Management Council with jurisdiction over
Convention, and quoted with approval by the Court in Alliance, to unresolved labor disputes involving government employees [Sec.
wit: 16]. Clearly, the NLRC has no jurisdiction over the dispute.

It is the stand, therefore, of this Commission that by reason of the
nature of the public employer and the peculiar character of the
public service, it must necessarily regard the right to strike given
to unions in private industry as not applying to public employees
and civil service employees. It has been stated that the
Government, in contrast to the private employer, protects the
interest of all people in the public service, and that accordingly,
such conflicting interests as are present in private labor relations
could not exist in the relations between government and those
whom they employ. [At pp. 16-17; also quoted in National Housing
Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA
172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right
to organize of government employees, while clinging to the same
philosophy, has, however, relaxed the rule to allow negotiation
where the terms and conditions of employment involved are not
among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or
improvements thereof, except those that are fixed by law, may be
the subject of negotiations between duly recognized employees'
organizations and appropriate government authorities.
The same executive order has also provided for the general
mechanism for the settlement of labor disputes in the public sector
to wit:
.SECTION 16. The Civil Service and labor laws and procedures,
whenever applicable, shall be followed in the resolution of
complaints, grievances and cases involving government
employees. In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and
procedures, the parties may jointly refer the dispute to the [Public
Sector Labor- Management] Council for appropriate action.
This being the case, the Regional Trial Court was not precluded, in
the exercise of its general jurisdiction under B.P. Blg. 129, as
amended, from assuming jurisdiction over the SSS's complaint for
damages and issuing the injunctive writ prayed for therein. Unlike
the NLRC, the Public Sector Labor - Management Council has not
been granted by law authority to issue writs of injunction in labor
disputes within its jurisdiction. Thus, since it is the Council, and not
the NLRC, that has jurisdiction over the instant labor dispute, resort
to the general courts of law for the issuance of a writ of injunction
to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or
overzealousness, for in fact it had proceeded with caution. Thus,
after issuing a writ of injunction enjoining the continuance of the
strike to prevent any further disruption of public service, the
respondent judge, in the same order, admonished the parties to
refer the unresolved controversies emanating from their employer-
employee relationship to the Public Sector Labor - Management
Council for appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory
Injunction," and reiterated in their reply and supplemental reply,
petitioners allege that the SSS unlawfully withheld bonuses and
benefits due the individual petitioners and they pray that the Court
issue a writ of preliminary prohibitive and mandatory injunction to
restrain the SSS and its agents from withholding payment thereof
and to compel the SSS to pay them. In their supplemental reply,
petitioners annexed an order of the Civil Service Commission, dated
May 5, 1989, which ruled that the officers of the SSSEA who are
not preventively suspended and who are reporting for work pending
the resolution of the administrative cases against them are entitled
to their salaries, year-end bonuses and other fringe benefits and
affirmed the previous order of the Merit Systems Promotion Board.

The matter being extraneous to the issues elevated to this Court,

Government employees may, therefore, through their unions or
it is Our view that petitioners' remedy is not to petition this Court
associations, either petition the Congress for the betterment of the
to issue an injunction, but to cause the execution of the aforesaid
terms and conditions of employment which are within the ambit of
order, if it has already become final.
legislation or negotiate with the appropriate government agencies
for the improvement of those which are not fixed by law. If there
be any unresolved grievances, the dispute may be referred to the WHEREFORE, no reversible error having been committed by the
Public Sector Labor - Management Council for appropriate action. Court of Appeals, the instant petition for review is hereby DENIED
But employees in the civil service may not resort to strikes, walk- and the decision of the appellate court dated March 9, 1988 in CA-
outs and other temporary work stoppages, like workers in the G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application
private sector, to pressure the Govemment to accede to their for Preliminary and Mandatory Injunction" dated December
demands. As now provided under Sec. 4, Rule III of the Rules and 13,1988 is DENIED.
Regulations to Govern the Exercise of the Right of Government-
Employees to Self- Organization, which took effect after the instant
SO ORDERED.
dispute arose, "[t]he terms and conditions of employment in the
government, including any political subdivision or instrumentality
thereof and government- owned and controlled corporations with
original charters are governed by law and employees therein shall
not strike for the purpose of securing changes thereof."

II

The strike staged by the employees of the SSS belonging to

petitioner union being prohibited by law, an injunction may be
issued to restrain it.

It is futile for the petitioners to assert that the subject labor dispute
falls within the exclusive jurisdiction of the NLRC and, hence, the
Regional Trial Court had no jurisdiction to issue a writ of injunction
enjoining the continuance of the strike. The Labor Code itself
provides that terms and conditions of employment of government
employees shall be governed by the Civil Service Law, rules and

582
530 US 640 JUNE 28, 2000
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al.,
PETITIONERS
v.
JAMES DALE
on writ of certiorari to the supreme court of
new jersey
[June 28, 2000]
Chief Justice Rehnquist delivered the opinion of the Court.
Petitioners are the Boy Scouts of America and the Monmouth
Council, a division of the Boy Scouts of America (collectively, Boy
Scouts). The Boy Scouts is a private, not-for-profit organization
engaged in instilling its system of values in young people. The Boy
Scouts asserts that homosexual conduct is inconsistent with the
values it seeks to instill. Respondent is James Dale, a former Eagle
Scout whose adult membership in the Boy Scouts was revoked
when the Boy Scouts learned that he is an avowed homosexual and
gay rights activist. The New Jersey Supreme Court held that New
Jersey's public accommodations law requires that the Boy Scouts
admit Dale. This case presents the question whether applying New
Jersey's public accommodations law in this way violates the Boy
Scouts' First Amendment right of expressive association. We hold
that it does.
I allowing nonmembers to attend meetings, establish that the
James Dale entered scouting in 1978 at the age of eight by
joining Monmouth Council's Cub Scout Pack 142. Dale became a
Boy Scout in 1981 and remained a Scout until he turned 18. By all
accounts, Dale was an exemplary Scout. In 1988, he achieved the
rank of Eagle Scout, one of Scouting's highest honors.
Dale applied for adult membership in the Boy Scouts in 1989.
The Boy Scouts approved his application for the position of assistant
scoutmaster of Troop 73. Around the same time, Dale left home to
attend Rutgers University. After arriving at Rutgers, Dale first
acknowledged to himself and others that he is gay. He quickly
became involved with, and eventually became the copresident of,
the Rutgers University Lesbian/Gay Alliance. In 1990, Dale
attended a seminar addressing the psychological and health needs
of lesbian and gay teenagers. A newspaper covering the event
interviewed Dale about his advocacy of homosexual teenagers'
need for gay role models. In early July 1990, the newspaper
published the interview and Dale's photograph over a caption
identifying him as the copresident of the Lesbian/Gay Alliance.
Later that month, Dale received a letter from Monmouth Council
Executive James Kay revoking his adult membership. Dale wrote to
Kay requesting the reason for Monmouth Council's decision. Kay
responded by letter that the Boy Scouts "specifically forbid
membership to homosexuals." App. 137.
In 1992, Dale filed a complaint against the Boy Scouts in the
New Jersey Superior Court. The complaint alleged that the Boy
Scouts had violated New Jersey's public accommodations statute
and its common law by revoking Dale's membership based solely
on his sexual orientation. New Jersey's public accommodations
statute prohibits, among other things, discrimination on the basis
of sexual orientation in places of public accommodation. N. J. Stat.
Ann. §§10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra,
at 18-19.
The New Jersey Superior Court's Chancery Division granted
summary judgment in favor of the Boy Scouts. The court held that
New Jersey's public accommodations law was inapplicable because
the Boy Scouts was not a place of public accommodation, and that,
alternatively, the Boy Scouts is a distinctly private group exempted
from coverage under New Jersey's law. The court rejected Dale's
common-law claim holding that New Jersey's policy is embodied in
the public accommodations law. The court also concluded that the
Boy Scouts' position in respect of active homosexuality was clear
and held that the First Amendment freedom of expressive
583
association prevented the government from forcing the Boy Scouts
to accept Dale as an adult leader.
The New Jersey Superior Court's Appellate Division affirmed the
dismissal of Dale's common-law claim, but otherwise reversed and
remanded for further proceedings. 308 N. J. Super. 516, 70 A. 2d
270 (1998). It held that New Jersey's public accommodations law
applied to the Boy Scouts and that the Boy Scouts violated it. The
Appellate Division rejected the Boy Scouts' federal constitutional
claims.
The New Jersey Supreme Court affirmed the judgment of the
Appellate Division. It held that the Boy Scouts was a place of public
accommodation subject to the public accommodations law, that the
organization was not exempt from the law under any of its express
exceptions, and that the Boy Scouts violated the law by revoking
Dale's membership based on his avowed homosexuality. After
considering the state-law issues, the court addressed the Boy
Scouts' claims that application of the public accommodations law in
this case violated its federal constitutional rights " `to enter into
and maintain ... intimate or private relationships ... [and] to
associate for the purpose of engaging in protected speech.' " 160
N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of
Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537,
544 (1987)). With respect to the right to intimate association, the
court concluded that the Boy Scouts' "large size, nonselectivity,
inclusive rather than exclusive purpose, and practice of inviting or
organization is not `sufficiently personal or private to warrant
constitutional protection' under the freedom of intimate
association.' " 160 N. J., at 608-609, 734 A. 2d, at 1221
(quoting Duarte, supra, at 546). With respect to the right of
expressive association, the court "agree[d] that Boy Scouts
expresses a belief in moral values and uses its activities to
encourage the moral development of its members." Ibid., 734
A. 2d, at 1223. But the court concluded that it was "not
persuaded ... that a shared goal of Boy Scout members is to
associate in order to preserve the view that homosexuality is
immoral." 160 N. J., at 613, 734 A. 2d, at 1223-1224 (internal
quotation marks omitted). Accordingly, the court held "that Dale's
membership does not violate the Boy Scouts' right of expressive
association because his inclusion would not `affect in any
significant way [the Boy Scouts'] existing members' ability to carry
out their various purposes.' " Id., at 615, 734 A. 2d, at 1225
(quoting Duarte, supra, at 548). The court also determined that
New Jersey has a compelling interest in eliminating "the destructive
consequences of discrimination from our society," and that its
public accommodations law abridges no more speech than is
necessary to accomplish its purpose. 160 N. J., at 619-620, 734
A. 2d, at 1227-1228. Finally, the court addressed the Boy Scouts'
reliance on Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557 (1995), in support of its
claimed First Amendment right to exclude Dale. The court
determined that Hurley did not require deciding the case in favor of
the Boy Scouts because "the reinstatement of Dale does not compel
Boy Scouts to express any message." 160 N. J., at 624, 734 A. 2d,
at 1229.
We granted the Boy Scouts' petition for certiorari to determine
whether the application of New Jersey's public accommodations law
violated the First Amendment. 528 U. S. 1109 (2000).
II
In Roberts v. United States Jaycees, 468 U. S. 609,
622 (1984), we observed that "implicit in the right to engage in
activities protected by the First Amendment" is "a corresponding
right to associate with others in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural ends." This
right is crucial in preventing the majority from imposing its views
on groups that would rather express other, perhaps unpopular,
ideas. See ibid. (stating that protection of the right to expressive
association is "especially important in preserving political and
cultural diversity and in shielding dissident expression from
suppression by the majority"). Government actions that may
unconstitutionally burden this freedom may take many forms, one
of which is "intrusion into the internal structure or affairs of an
association" like a "regulation that forces the group to accept
members it does not desire." Id., at 623. Forcing a group to accept
certain members may impair the ability of the group to express
those views, and only those views, that it intends to express. Thus,
"[f ]reedom of association ... plainly presupposes a freedom not to
associate." Ibid.
The forced inclusion of an unwanted person in a group infringes
the group's freedom of expressive association if the presence of
that person affects in a significant way the group's ability to
advocate public or private viewpoints. New York State Club Assn.,
Inc. v. City of New York, 487 U. S. 1, 13 (1988). But the freedom
of expressive association, like many freedoms, is not absolute. We
have held that the freedom could be overridden "by regulations
adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms." Roberts,
supra,at 623.
To determine whether a group is protected by the First
Amendment's expressive associational right, we must determine
whether the group engages in "expressive association." The First
Amendment's protection of expressive association is not reserved
for advocacy groups. But to come within its ambit, a group must
engage in some form of expression, whether it be public or private.
Because this is a First Amendment case where the ultimate
conclusions of law are virtually inseparable from findings of fact, we
are obligated to independently review the factual record to ensure
that the state court's judgment does not unlawfully intrude on free
expression. See Hurley, supra, at 567-568. The record reveals the
following. The Boy Scouts is a private, nonprofit organization.
According to its mission statement:
"It is the mission of the Boy Scouts of America to serve others
by helping to instill values in young people and, in other ways, to
prepare them to make ethical choices over their lifetime in
achieving their full potential.
"The values we strive to instill are based on those found in the
Scout Oath and Law:
"Scout Oath
"On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
"Scout Law
"A Scout is:
"Trustworthy Obedient
Loyal Cheerful
Helpful Thrifty
Friendly Brave
Courteous Clean
584
Kind Reverent." App. 184.
Thus, the general mission of the Boy Scouts is clear: "[T]o instill
values in young people." Ibid. The Boy Scouts seeks to instill these
values by having its adult leaders spend time with the youth
members, instructing and engaging them in activities like camping,
archery, and fishing. During the time spent with the youth
members, the scoutmasters and assistant scoutmasters inculcate
them with the Boy Scouts' values--both expressly and by example.
It seems indisputable that an association that seeks to transmit
such a system of values engages in expressive activity.
See Roberts, supra, at 636 (O'Connor, J., concurring) ("Even the
training of outdoor survival skills or participation in community
service might become expressive when the activity is intended to
develop good morals, reverence, patriotism, and a desire for self-
improvement").
Given that the Boy Scouts engages in expressive activity, we
must determine whether the forced inclusion of Dale as an assistant
scoutmaster would significantly affect the Boy Scouts' ability to
advocate public or private viewpoints. This inquiry necessarily
requires us first to explore, to a limited extent, the nature of the
Boy Scouts' view of homosexuality.
The values the Boy Scouts seeks to instill are "based on" those
listed in the Scout Oath and Law. App. 184. The Boy Scouts explains
that the Scout Oath and Law provide "a positive moral code for
living; they are a list of `do's' rather than `don'ts.' " Brief for
Petitioners 3. The Boy Scouts asserts that homosexual conduct is
inconsistent with the values embodied in the Scout Oath and Law,
particularly with the values represented by the terms "morally
straight" and "clean."
Obviously, the Scout Oath and Law do not expressly mention
sexuality or sexual orientation. See supra, at 6-7. And the terms
"morally straight" and "clean" are by no means self-defining.
Different people would attribute to those terms very different
meanings. For example, some people may believe that engaging in
homosexual conduct is not at odds with being "morally straight"
and "clean." And others may believe that engaging in homosexual
conduct is contrary to being "morally straight" and "clean." The Boy
Scouts says it falls within the latter category.
The New Jersey Supreme Court analyzed the Boy Scouts' beliefs
and found that the "exclusion of members solely on the basis of
their sexual orientation is inconsistent with Boy Scouts'
commitment to a diverse and `representative' membership ...
[and] contradicts Boy Scouts' overarching objective to reach `all
eligible youth.' " 160 N. J., at 618, 734 A. 2d, at 1226. The court
concluded that the exclusion of members like Dale "appears
antithetical to the organization's goals and philosophy." Ibid. But
our cases reject this sort of inquiry; it is not the role of the courts
to reject a group's expressed values because they disagree with
those values or find them internally inconsistent. See Democratic
Party of United States v. Wisconsin ex rel. La Follette, 450 U. S.
107, 124 (1981) ("[A]s is true of all expressions of First
Amendment freedoms, the courts may not interfere on the ground
that they view a particular expression as unwise or irrational"); see
also Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U. S. 707, 714 (1981) ("[R]eligious beliefs need not be
acceptable, logical, consistent, or comprehensible to others to merit
First Amendment protection").
The Boy Scouts asserts that it "teach[es] that homosexual
conduct is not morally straight," Brief for Peti-
tioners 39, and that it does "not want to promote homosexual
conduct as a legitimate form of behavior," Reply Brief for Petitioners
5. We accept the Boy Scouts' assertion. We need not inquire further
to determine the nature of the Boy Scouts' expression with respect
to homosexuality. But because the record before us contains
written evidence of the Boy Scouts' viewpoint, we look
to it as instructive, if only on the question of the sincerity of the
professed beliefs.
A 1978 position statement to the Boy Scouts' Executive
Committee, signed by Downing B. Jenks, the President of the Boy
Scouts, and Harvey L. Price, the Chief Scout Executive, expresses
the Boy Scouts' "official position" with regard to "homosexuality
and Scouting":
"Q. May an individual who openly declares himself to be a
homosexual be a volunteer Scout leader?
"A. No. The Boy Scouts of America is a private, membership
organization and leadership therein is a privilege and not a right.
We do not believe that homosexuality and leadership in Scouting
are appropriate. We will continue to select only those who in our
judgment meet our standards and qualifications for leadership."
App. 453-454.
Thus, at least as of 1978--the year James Dale entered Scouting--
the official position of the Boy Scouts was that avowed homosexuals
were not to be Scout leaders.
A position statement promulgated by the Boy Scouts in 1991
(after Dale's membership was revoked but before this litigation was
filed) also supports its current view:
"We believe that homosexual conduct is inconsistent with the
requirement in the Scout Oath that a Scout be morally straight and
in the Scout Law that a Scout be clean in word and deed, and that
homosexuals do not provide a desirable role model for
Scouts." Id., at 457.
This position statement was redrafted numerous times but its core
message remained consistent. For example, a 1993 position
statement, the most recent in the record, reads, in part:
"The Boy Scouts of America has always reflected the expectations
that Scouting families have had for the organization. We do not
believe that homosexuals provide a role model consistent with
these expectations. Accordingly, we do not allow for the registration
of avowed homosexuals as members or as leaders of the
BSA." Id., at 461.
The Boy Scouts publicly expressed its views with respect to
homosexual conduct by its assertions in prior litigation. For
example, throughout a California case with similar facts filed in the
early 1980's, the Boy Scouts consistently asserted the same
position with respect to homosexuality that it asserts today.
See Curran v. Mount Diablo Council of Boy Scouts of America,
No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th
670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218
(1998). We cannot doubt that the Boy Scouts sincerely holds this
view.
We must then determine whether Dale's presence as an
assistant scoutmaster would significantly burden the Boy Scouts'
desire to not "promote homosexual conduct as a legitimate form of
behavior." Reply Brief for Petitioners 5. As we give deference to an
association's assertions regarding the nature of its expression, we
must also give deference to an association's view of what would
impair its expression. See, e.g., La Follette,supra, at 123-124
(considering whether a Wisconsin law burdened the National Party's
associational rights and stating that "a State, or a court, may not
constitutionally substitute its own judgment for that of the Party").
That is not to say that an expressive association can erect a shield
against antidiscrimination laws simply by asserting that mere
acceptance of a member from a particular group would impair its
585
message. But here Dale, by his own admission, is one of a group of
gay Scouts who have "become leaders in their community and are
open and honest about their sexual orientation." App. 11. Dale was
the copresident of a gay and lesbian organization at college and
remains a gay rights activist. Dale's presence in the Boy Scouts
would, at the very least, force the organization to send a message,
both to the youth members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate form of behavior.
Hurley is illustrative on this point. There we considered whether
the application of Massachusetts' public accommodations law to
require the organizers of a private St. Patrick's Day parade to
include among the marchers an Irish-American gay, lesbian, and
bisexual group, GLIB, violated the parade organizers' First
Amendment rights. We noted that the parade organizers did not
wish to exclude the GLIB members because of their sexual
orientations, but because they wanted to march behind a GLIB
banner. We observed:
"[A] contingent marching behind the organization's banner would
at least bear witness to the fact that some Irish are gay, lesbian,
or bisexual, and the presence of the organized marchers would
suggest their view that people of their sexual orientations have as
much claim to unqualified social acceptance as heterosexuals ... .
The parade's organizers may not believe these facts about Irish
sexuality to be so, or they may object to unqualified social
acceptance of gays and lesbians or have some other reason for
wishing to keep GLIB's message out of the parade. But whatever
the reason, it boils down to the choice of a speaker not to propound
a particular point of view, and that choice is presumed to lie beyond
the government's power to control." 515 U. S., at 574-575.
Here, we have found that the Boy Scouts believes that homosexual
conduct is inconsistent with the values it seeks to instill in its youth
members; it will not "promote homosexual conduct as a legitimate
form of behavior." Reply Brief for Petitioners 5. As the presence of
GLIB in Boston's St. Patrick's Day parade would have interfered
with the parade organizers' choice not to propound a particular
point of view, the presence of Dale as an assistant scoutmaster
would just as surely interfere with the Boy Scout's choice not to
propound a point of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy Scouts'
ability to disseminate its message was not significantly affected by
the forced inclusion of Dale as an assistant scoutmaster because of
the following findings:
"Boy Scout members do not associate for the purpose of
disseminating the belief that homosexuality is immoral; Boy Scouts
discourages its leaders from disseminating any views on sexual
issues; and Boy Scouts includes sponsors and members who
subscribe to different views in respect of homosexuality." 160 N. J.,
at 612, 734 A. 2d, at 1223.
We disagree with the New Jersey Supreme Court's conclusion
drawn from these findings.
First, associations do not have to associate for the "purpose" of
disseminating a certain message in order to be entitled to the
protections of the First Amendment. An association must merely
engage in expressive activity that could be impaired in order to be
entitled to protection. For example, the purpose of the St. Patrick's
Day parade in Hurley was not to espouse any views about sexual
orientation, but we held that the parade organizers had a right to
exclude certain participants nonetheless.
Second, even if the Boy Scouts discourages Scout leaders from
disseminating views on sexual issues--a fact that the Boy Scouts
disputes with contrary evidence--the First Amendment protects the
Boy Scouts' method of expression. If the Boy Scouts wishes Scout
leaders to avoid questions of sexuality and teach only by example,
this fact does not negate the sincerity of its belief discussed above.
Third, the First Amendment simply does not require that every
member of a group agree on every issue in order for the group's
policy to be "expressive association." The Boy Scouts takes an
official position with respect to homosexual conduct, and that is
sufficient for First Amendment purposes. In this same vein, Dale
makes much of the claim that the Boy Scouts does not revoke the
membership of heterosexual Scout leaders that openly disagree
with the Boy Scouts' policy on sexual orientation. But if this is true,
it is irrelevant.1 The presence of an avowed homosexual and gay
rights activist in an as-
sistant scoutmaster's uniform sends a distinctly different message
from the presence of a heterosexual assistant scoutmaster who is
on record as disagreeing with Boy Scouts policy. The Boy Scouts
has a First Amendment right to choose to send one message but
not the other. The fact that the organization does not trumpet its
views
from the housetops, or that it tolerates dissent within
its ranks, does not mean that its views receive no First Amendment
protection.
Having determined that the Boy Scouts is an expressive
association and that the forced inclusion of Dale would significantly
affect its expression, we inquire whether the application of New
Jersey's public accommodations law to require that the Boy Scouts
accept Dale as an assistant scoutmaster runs afoul of the Scouts'
freedom of expressive association. We conclude that it does.
State public accommodations laws were originally enacted to
prevent discrimination in traditional places of public
accommodation--like inns and trains. See, e.g., Hurley, supra, at
571-572 (explaining the history of Massachusetts' public
accommodations law); Romer v. Evans, 517 U. S. 620, 627-
629 (1996) (describing the evolution of public accommodations
laws). Over time, the public accommodations laws have expanded
to cover more places.2 New Jersey's statutory definition of " `[a]
place of public accommodation' " is extremely broad. The term is
said to "include, but not be limited to," a list of over 50 types of
places. N. J. Stat. Ann. §10:5-5(l) (West Supp. 2000); see
Appendix, infra, at 18-19. Many on the list are what one would
expect to be places where the public is invited. For example, the
statute includes as places of public accommodation taverns,
restaurants, retail shops, and public libraries. But the statute also
includes places that often may not carry with them open invitations
to the public, like summer camps and roof gardens. In this case,
the New Jersey Supreme Court went a step further and applied its
public accommodations law to a private entity without even
attempting to tie the term "place" to a physical location.3 As the
definition of "public accommodation" has expanded from clearly
commercial entities, such as restaurants, bars, and hotels, to
membership organizations such as the Boy Scouts, the potential for
conflict between state public accommodations laws and the First
Amendment rights of organizations has increased.
We recognized in cases such as Roberts and Duarte that States
have a compelling interest in eliminating discrimination against
women in public accommodations. But in each of these cases we
went on to conclude that the enforcement of these statutes would
not materially interfere with the ideas that the organization sought
to express. In Roberts, we said "[i]ndeed, the Jaycees has failed to
demonstrate ... any serious burden on the male members' freedom
of expressive association." 468 U. S., at 626. In Duarte, we said:
586
"[I]mpediments to the exercise of one's right to choose one's
associates can violate the right of association protected by the First
Amendment. In this case, however, the evidence fails to
demonstrate that admitting women to Rotary Clubs will affect in
any significant way the existing members' ability to carry out their
various purposes." 481 U. S., at 548 (internal quotation marks and
citations omitted).
We thereupon concluded in each of these cases that the
organizations' First Amendment rights were not violated by the
application of the States' public accommodations laws.
In Hurley, we said that public accommodations laws "are well
within the State's usual power to enact when a legislature has
reason to believe that a given group is the target of discrimination,
and they do not, as a general matter, violate the First or Fourteenth
Amendments." 515 U. S., at 572. But we went on to note that in
that case "the Massachusetts [public accommodations] law has
been applied in a peculiar way" because "any contingent of
protected individuals with a message would have the right to
participate in petitioners' speech, so that the communication
produced by the private organizers would be shaped by all those
protected by the law who wish to join in with some expressive
demonstration of their own." Id., at 572-573. And in the
associational freedom cases such as Roberts, Duarte, and New
York State Club Assn., after finding a compelling state interest, the
Court went on to examine whether or not the application of the
state law would impose any "serious burden" on the organization's
rights of expressive association. So in these cases, the associational
interest in freedom of expression has been set on one side of the
scale, and the State's interest on the other.
Dale contends that we should apply the intermediate standard
of review enunciated in United States v. O'Brien, 391 U. S.
367 (1968), to evaluate the competing interests. There the Court
enunciated a four-part test for review of a governmental regulation
that has only an incidental effect on protected speech--in that case
the symbolic burning of a draft card. A law prohibiting the
destruction of draft cards only incidentally affects the free speech
rights of those who happen to use a violation of that law as a symbol
of protest. But New Jersey's public accommodations law directly
and immediately affects associational rights, in this case
associational rights that enjoy First Amendment protection.
Thus, O'Brien is inapplicable.
In Hurley, we applied traditional First Amendment analysis to
hold that the application of the Massachusetts public
accommodations law to a parade violated the First Amendment
rights of the parade organizers. Although we did not explicitly deem
the parade in Hurley an expressive association, the analysis we
applied there is similar to the analysis we apply here. We have
already concluded that a state requirement that the Boy Scouts
retain Dale as an assistant scoutmaster would significantly burden
the organization's right to oppose or disfavor homosexual conduct.
The state interests embodied in New Jersey's public
accommodations law do not justify such a severe intrusion on the
Boy Scouts' rights to freedom of expressive association. That being
the case, we hold that the First Amendment prohibits the State
from imposing such a requirement through the application of its
public accommodations law.4
Justice Stevens' dissent makes much of its observation that the
public perception of homosexuality in this country has changed.
See post, at 37-39. Indeed, it appears that homosexuality has
gained greater societal acceptance. See ibid. But this is scarcely an
argument for denying First Amendment protection to those who
refuse to accept these views. The First Amendment protects
expression, be it of the popular variety or not.
See, e.g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that
Johnson's conviction for burning the American flag violates the First
Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (holding
that a Ku Klux Klan leaders' conviction for advocating unlawfulness
as a means of political reform violates the First Amendment). And
the fact that an idea may be embraced and advocated by increasing
numbers of people is all the more reason to protect the First
Amendment rights of those who wish to voice a different view.
Justice Stevens' extolling of Justice Brandeis' comments in New
State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting
opinion); see post, at 2, 40, confuses two entirely different
principles. In New State Ice, the Court struck down an Oklahoma
regulation prohibiting the manufacture, sale, and distribution of ice
without a license. Justice Brandeis, a champion of state
experimentation in the economic realm, dissented. But Justice
Brandeis was never a champion of state experimentation in the
suppression of free speech. To the contrary, his First Amendment
commentary provides compelling support for the Court's opinion in
this case. In speaking of the Founders of this Nation, Justice
Brandeis emphasized that they "believed that the freedom to think
as you will and to speak as you think are means indispensable
to the discovery and spread of political
truth." Whitney v. California, 274 U. S. 357, 375 (concurring
opinion). He continued:
"Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law--the argument of
force in its worst form. Recognizing the occasional tyrannies of
governing majorities, they amended the Constitution so that free
speech and assembly should be guaranteed." Id., at 375-376.
We are not, as we must not be, guided by our views of whether
the Boy Scouts' teachings with respect to homosexual conduct are
right or wrong; public or judicial disapproval of a tenet of an
organization's expression does not justify the State's effort to
compel the organization to accept members where such acceptance
would derogate from the organization's expressive message. "While
the law is free to promote all sorts of conduct in place of harmful
behavior, it is not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored
one, however enlightened either purpose may strike the
government." Hurley, 515 U. S., at 579.
The judgment of the New Jersey Supreme Court is reversed,
and the cause remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
N. J. Stat. Ann. §10:5-4 (West Supp. 2000). Obtaining
employment, accommodations and privileges without
discrimination; civil right
"All persons shall have the opportunity to obtain employment,
and to obtain all the accommodations, advantages, facilities, and
privileges of any place of public accommodation, publicly assisted
housing accommodation, and other real property without
discrimination because of race, creed, color, national origin,
ancestry, age, marital status, affectional or sexual orientation,
familial status, or sex, subject only to conditions and limitations
applicable alike to all persons. This opportunity is recognized as and
declared to be a civil right."
N. J. Stat. Ann. §10:5-5 (West Supp. 2000). Definitions
"As used in this act, unless a different meaning clearly appears
from the context:
.....
587
"l. `A place of public accommodation' shall include, but not be
limited to: any tavern, roadhouse, hotel, motel, trailer camp,
summer camp, day camp, or resort camp, whether for
entertainment of transient guests or accommodation of those
seeking health, recreation or rest; any producer, manufacturer,
wholesaler, distributor, retail shop, store, establishment, or
concession dealing with goods or services of any kind; any
restaurant, eating house, or place where food is sold for
consumption on the premises; any place maintained for the sale of
ice cream, ice and fruit preparations or their derivatives, soda water
or confections, or where any beverages of any kind are retailed for
consumption on the premises; any garage, any public conveyance
operated on land or water, or in the air, any stations and terminals
thereof; any bathhouse, boardwalk, or seashore accommodation;
any auditorium, meeting place, or hall; any theatre, motion-picture
house, music hall, roof garden, skating rink, swimming pool,
amusement and recreation park, fair, bowling alley, gymnasium,
shooting gallery, billiard and pool parlor, or other place of
amusement; any comfort station; any dispensary, clinic or hospital;
any public library; any kindergarten, primary and secondary school,
trade or business school, high school, academy, college and
university, or any educational institution under the supervision of
the State Board of Education, or the Commissioner of Education of
the State of New Jersey. Nothing herein contained shall be
construed to include or to apply to any institution, bona fide club,
or place of accommodation, which is in its nature distinctly private;
nor shall anything herein contained apply to any educational facility
operated or maintained by a bona fide religious or sectarian
institution, and the right of a natural parent or one in loco parentis
to direct the education and upbringing of a child under his control
is hereby affirmed; nor shall anything herein contained be
construed to bar any private secondary or post secondary school
from using in good faith criteria other than race, creed, color,
national origin, ancestry or affectional or sexual orientation in the
admission of students."
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al.,
PETITIONERS v.
JAMES DALE
on writ of certiorari to the supreme court of
new jersey
[June 28, 2000]
Justice Stevens, with whom Justice Souter, Justice
Ginsburg and Justice Breyer join, dissenting.
New Jersey "prides itself on judging each individual by his or
her merits" and on being "in the vanguard in the fight to eradicate
the cancer of unlawful discrimination of all types from our
society." Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80,
389 A. 2d 465, 478 (1978). Since 1945, it has had a law against
discrimination. The law broadly protects the opportunity of all
persons to obtain the advantages and privileges "of any place of
public accommodation." N. J. Stat. Ann. §10:5-4 (West Supp.
2000). The New Jersey Supreme Court's construction of the
statutory definition of a "place of public accommodation" has given
its statute a more expansive coverage than most similar state
statutes. And as amended in 1991, the law prohibits discrimination
on the basis of nine different traits including an individual's "sexual
orientation."1 The question in this case is whether that expansive
construction trenches on the federal constitutional rights of the Boy
Scouts of America (BSA).
Because every state law prohibiting discrimination is designed
to replace prejudice with principle, Justice Brandeis' comment on
the States' right to experiment with "things social" is directly
applicable to this case.
"To stay experimentation in things social and economic is a grave
responsibility. Denial of the right to experiment may be fraught with

serious consequences to the Nation. It is one of the happy incidents
of the federal system that a single courageous State may, if its
citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country. This
Court has the power to prevent an experiment. We may strike down
the statute which embodies it on the ground that, in our opinion,
the measure is arbitrary, capricious or unreasonable. We have
power to do this, because the due process clause has been held by
the Court applicable to matters of substantive law as well as to
matters of procedure. But in the exercise of this high power, we
must be ever on our guard, lest we erect our prejudices into legal
principles. If we would guide by the light of reason, we must let our
minds be bold." New State Ice Co. v. Liebmann, 285 U. S. 262,
311 (1932) (dissenting opinion).
In its "exercise of this high power" today, the Court does not accord
this "courageous State" the respect that is its due.
The majority holds that New Jersey's law violates BSA's right to
associate and its right to free speech. But that law does not
"impos[e] any serious burdens" on BSA's "collective effort on behalf
of [its] shared goals," Roberts v. United States Jaycees, 468 U. S.
609, 622, 626-627 (1984), nor does it force BSA to communicate
any message that it does not wish to endorse. New Jersey's law,
therefore, abridges no constitutional right of the Boy Scouts.
I term is the word "clean," which appears in a list of 12
James Dale joined BSA as a Cub Scout in 1978, when he was
eight years old. Three years later he became a Boy Scout, and he
remained a member until his 18th birthday. Along the way, he
earned 25 merit badges, was admitted into the prestigious Order
of the Arrow, and was awarded the rank of Eagle Scout--an honor
given to only three percent of all Scouts. In 1989, BSA approved
his application to be an Assistant Scoutmaster.
On July 19, 1990, after more than 12 years of active and
honored participation, the Boys Scouts sent Dale a letter advising
him of the revocation of his membership. The letter stated that
membership in BSA "is a privilege" that may be denied "whenever
there is a concern that an individual may not meet the high
standards of membership which the BSA seeks to provide for
American youth." App. 135. Expressing surprise at his sudden
expulsion, Dale sent a letter requesting an explanation of the
decision. Id., at 136. In response, BSA sent him a second letter
stating that the grounds for the decision "are the standards for
leadership established by the Boy Scouts of America, which
specifically forbid membership to homosexuals." Id., at 137. At
that time, no such standard had been publicly expressed by BSA.
In this case, Boy Scouts of America contends that it teaches the
young boys who are Scouts that homosexuality is immoral.
Consequently, it argues, it would violate its right to associate to
force it to admit homosexuals as members, as doing so would be
at odds with its own shared goals and values. This contention, quite
plainly, requires us to look at what, exactly, are the values that BSA
actually teaches.
BSA's mission statement reads as follows: "It is the mission of
the Boy Scouts of America to serve others by helping to instill
values in young people and, in other ways, to prepare them to make
ethical choices over their lifetime in achieving their full
potential." Id., at 184. Its federal charter declares its purpose is
"to promote, through organization, and cooperation with other
588
agencies, the ability of boys to do things for themselves and others,
to train them in scoutcraft, and to teach them patriotism, courage,
self-reliance, and kindred values, using the methods which were in
common use by Boy Scouts on June 15, 1916." 36 U. S. C. §23;
see also App. 315-316. BSA describes itself as having a
"representative membership," which it defines as "boy membership
[that] reflects proportionately the characteristics of the boy
population of its service area." Id., at 65. In particular, the group
emphasizes that "[n]either the charter nor the bylaws of the Boy
Scouts of America permits the exclusion of any boy. ... To meet
these responsibilities we have made a commitment that our
membership shall be representative of all the population in every
community, district, and council." Id., at 66-67 (emphasis in
original).
To instill its shared values, BSA has adopted a "Scout Oath" and
a "Scout Law" setting forth its central tenets. For example, the
Scout Law requires a member to promise, among other things, that
he will be "obedient." Accompanying definitions for the terms found
in the Oath and Law are provided in the Boy Scout Handbook and
the Scoutmaster Handbook. For instance, the Boy Scout Handbook
defines "obedient" as follows:
"A Scout is OBEDIENT. A Scout follows the rules of his family,
school, and troop. He obeys the laws of his community and country.
If he thinks these rules and laws are unfair, he tries to have them
changed in an orderly manner rather than disobey them." Id., at
188 (emphasis deleted).
To bolster its claim that its shared goals include teaching that
homosexuality is wrong, BSA directs our attention to two terms
appearing in the Scout Oath and Law. The first is the phrase
"morally straight," which appears in the Oath ("On my honor I will
do my best ... To keep myself ... morally straight"); the second
characteristics together comprising the Scout Law.
The Boy Scout Handbook defines "morally straight," as such:
"To be a person of strong character, guide your life with honesty,
purity, and justice. Respect and defend the rights of all people. Your
relationships with others should be honest and open. Be clean in
your speech and actions, and faithful in your religious beliefs. The
values you follow as a Scout will help you become virtuous and self-
reliant." Id., at 218 (emphasis deleted).
The Scoutmaster Handbook emphasizes these points about being
"morally straight":
"In any consideration of moral fitness, a key word has to be
`courage.' A boy's courage to do what his head and his heart tell
him is right. And the courage to refuse to do what his heart and his
head say is wrong. Moral fitness, like emotional fitness, will clearly
present opportunities for wise guidance by an alert
Scoutmaster." Id., at 239-240.
As for the term "clean," the Boy Scout Handbook offers the
following:
"A Scout is CLEAN. A Scout keeps his body and mind fit and clean.
He chooses the company of those who live by these same ideals.
He helps keep his home and community clean.
"You never need to be ashamed of dirt that will wash off. If you
play hard and work hard you can't help getting dirty. But when the
game is over or the work is done, that kind of dirt disappears with
soap and water.
"There's another kind of dirt that won't come off by washing. It is
the kind that shows up in foul language and harmful thoughts.
"Swear words, profanity, and dirty stories are weapons that ridicule
other people and hurt their feelings. The same is true of racial slurs
and jokes making fun of ethnic groups or people with physical or
mental limitations. A Scout knows there is no kindness or honor in
such mean-spirited behavior. He avoids it in his own words and
deeds. He defends those who are targets of insults." Id., at 225-
226 (emphasis in original); see also id., at 189.2
It is plain as the light of day that neither one of these principles--
"morally straight" and "clean"--says the slightest thing about
homosexuality. Indeed, neither term in the Boy Scouts' Law and
Oath expresses any position whatsoever on sexual matters.
BSA's published guidance on that topic underscores this point.
Scouts, for example, are directed to receive their sex education at
home or in school, but not from the organization: "Your parents or
guardian or a sex education teacher should give you the facts about
sex that you must know." Boy Scout Handbook (1992) (reprinted
in App. 211). To be sure, Scouts are not forbidden from asking their
Scoutmaster about issues of a sexual nature, but Scoutmasters are,
literally, the last person Scouts are encouraged to ask: "If you have
questions about growing up, about relationships, sex, or making
good decisions, ask. Talk with your parents, religious leaders,
teachers, or Scoutmaster." Ibid. Moreover, Scoutmasters are
specifically directed to steer curious adolescents to other sources
of information:
"If Scouts ask for information regarding ... sexual activity, answer
honestly and factually, but stay within your realm of expertise and
comfort. If a Scout has serious concerns that you cannot answer,
refer him to his family, religious leader, doctor, or other
professional." Scoutmaster Handbook (1990) (reprinted in App.
264).
More specifically, BSA has set forth a number of rules for
Scoutmasters when these types of issues come up:
"You may have boys asking you for information or advice about
sexual matters. ...
"How should you handle such matters?
589
"Rule number 1: You do not undertake to instruct Scouts, in any
formalized manner, in the subject of sex and family life. The
reasons are that it is not construed to be Scouting's proper area,
and that you are probably not well qualified to do this.
"Rule number 2: If Scouts come to you to ask questions or to seek
advice, you would give it within your competence. A boy who
appears to be asking about sexual intercourse, however, may really
only be worried about his pimples, so it is well to find out just what
information is needed.
"Rule number 3: You should refer boys with sexual problems to
persons better qualified than you [are] to handle them. If the boy
has a spiritual leader or a doctor who can deal with them, he should
go there. If such persons are not available, you may just have to
do the best you can. But don't try to play a highly professional role.
And at the other extreme, avoid passing the buck." Scoutmaster
Handbook (1972) (reprinted in App. 546-547) (emphasis added).
In light of BSA's self-proclaimed ecumenism, furthermore, it is
even more difficult to discern any shared goals or common moral
stance on homosexuality. Insofar as religious matters are
concerned, BSA's bylaws state that it is "absolutely nonsectarian in
its attitude toward ... religious training." App. 362. "The BSA does
not define what constitutes duty to God or the practice of religion.
This is the responsibility of parents and religious leaders." Id., at
76. In fact, many diverse religious organizations sponsor local Boy
Scout troops. Brief for Petitioners 3. Because a number of religious
groups do not view homosexuality as immoral or wrong and reject
discrimination against homosexuals,3 it is exceedingly difficult to
believe that BSA nonetheless adopts a single particular religious or
moral philosophy when it comes to sexual orientation. This is
especially so in light of the fact that Scouts are advised to seek
guidance on sexual matters from their religious leaders (and
Scoutmasters are told to refer Scouts to them);4 BSA surely is
aware that some religions do not teach that homosexuality is
wrong.
II
The Court seeks to fill the void by pointing to a statement of
"policies and procedures relating to homosexuality and Scouting"
signed by BSA's President and Chief Scout Executive in 1978 and
addressed to the members of the Executive Committee of the
national organization. Ante, at 9. The letter says that the BSA does
"not believe that homosexuality and leadership in Scouting are
appropriate." App. 454. But when the entire 1978 letter is read,
BSA's position is far more equivocal:
"4. Q. May an individual who openly declares himself to be a
homosexual be employed by the Boy Scouts of America as a
professional or non-professional?
"A. Boy Scouts of America does not knowingly employ
homosexuals as professionals or non-professionals. We are
unaware of any present laws which would prohibit this policy.

"5. Q. Should a professional or non-professional individual
who openly declares himself to be a homosexual be terminated?
"A. Yes, in the absence of any law to the contrary. At the
present time we are unaware of any statute or ordinance in the
United States which prohibits discrimination against individual's
employment upon the basis of homosexuality. In the event that
such a law was applicable, it would be necessary for the Boy Scouts
of America to obey it, in this case as in Paragraph 4 above. It is our
position, however, that homosexuality and professional or non-
professional employment in Scouting are not appropriate." Id., at
454-455 (emphasis added).
Four aspects of the 1978 policy statement are relevant to the
proper disposition of this case. First, at most this letter simply
adopts an exclusionary membership policy. But simply adopting
such a policy has never been considered sufficient, by itself, to
prevail on a right to associate claim. See infra, at 18-23.
Second, the 1978 policy was never publicly expressed--
unlike, for example, the Scout's duty to be "obedient." It was an
internal memorandum, never circulated beyond the few members
of BSA's Executive Committee. It remained, in effect, a secret Boy
Scouts policy. Far from claiming any intent to express an idea that
would be burdened by the presence of homosexuals,
BSA's public posture--to the world and to the Scouts themselves--
remained what it had always been: one of tolerance, welcoming all
classes of boys and young men. In this respect, BSA's claim is even
weaker than those we have rejected in the past. See infra, at 18-
23.
Third, it is apparent that the draftsmen of the policy statement
foresaw the possibility that laws against discrimination might one
day be amended to protect homosexuals from employment
discrimination. Their statement clearly provided that, in the event
such a law conflicted with their policy, a Scout's duty to be
"obedient" and "obe[y] the laws," even if "he thinks [the laws] are
unfair" would prevail in such a contingency. See supra, at 4-5. In
1978, however, BSA apparently did not consider it to be a serious
possibility that a State might one day characterize the Scouts as a
"place of public accommodation" with a duty to open its
membership to all qualified individuals. The portions of the
statement dealing with membership simply assume that
membership in the Scouts is a "privilege" that BSA is free to grant
or to withhold. The statement does not address the question
whether the publicly proclaimed duty to obey the law should prevail
over the private discriminatory policy if, and when, a conflict
between the two should arise--as it now has in New Jersey. At the
very least, then, the statement reflects no unequivocal view on
homosexuality. Indeed, the statement suggests that an appropriate
way for BSA to preserve its unpublished exclusionary policy would
include an open and forthright attempt to seek an amendment of
New Jersey's statute. ("If he thinks these rules and laws are unfair,
he tries to have them changed in an orderly manner rather than
disobey them.")
Fourth, the 1978 statement simply says that homosexuality is
not "appropriate." It makes no effort to connect that statement to
a shared goal or expressive activity of the Boy Scouts. Whatever
values BSA seeks to instill in Scouts, the idea that homosexuality
is not "appropriate" appears entirely unconnected to, and is
mentioned nowhere in, the myriad of publicly declared values and
creeds of the BSA. That idea does not appear to be among any of
the principles actually taught to Scouts. Rather, the 1978 policy
appears to be no more than a private statement of a few BSA
executives that the organization wishes to exclude gays--and that
590
wish has nothing to do with any expression BSA actually engages
in.
The majority also relies on four other policy statements that
were issued between 1991 and 1993.5 All of them were written and
issued after BSA revoked Dale's membership. Accordingly, they
have little, if any, relevance to the legal question before this
Court.6 In any event, they do not bolster BSA's claim.
In 1991, BSA issued two statements both stating: "We believe
that homosexual conduct is inconsistent with the requirement in
the Scout Oath that a Scout be morally straight and in the Scout
Law that a Scout be clean in word and deed, and that homosexuals
do not provide a desirable role model for Scouts." App. 457-458. A
third statement issued in 1992 was substantially the same. Id., at
459. By 1993, however, the policy had changed:
"BSA Position
"The Boy Scouts of America has always reflected the expectations
that Scouting families have had for the organization.
"We do not believe that homosexuals provide a role model
consistent with these expectations.
"Accordingly, we do not allow for the registration of avowed
homosexuals as members or as leaders of the BSA." Id., at 461.
Aside from the fact that these statements were all issued after
Dale's membership was revoked, there are four important points
relevant to them. First, while the 1991 and 1992 statements tried
to tie BSA's exclusionary policy to the meaning of the Scout Oath
and Law, the 1993 statement abandoned that effort. Rather, BSA's
1993 homosexual exclusion policy was based on its view that
including gays would be contrary to "the expectations that Scouting
families have had for the organization." Ibid. Instead of linking its
policy to its central tenets or shared goals--to teach certain
definitions of what it means to be "morally straight" and "clean"--
BSA chose instead to justify its policy on the "expectatio[n]" that
its members preferred to exclude homosexuals. The 1993 policy
statement, in other words, was not based on any expressive
activity or on any moral view about homosexuality. It was simply
an exclusionary membership policy, similar to those we have held
insufficient in the past. See infra, at 18-23.
Second, even during the brief period in 1991 and 1992, when
BSA tried to connect its exclusion of homosexuals to its definition
of terms found in the Oath and Law, there is no evidence that
Scouts were actually taught anything about homosexuality's
alleged inconsistency with those principles. Beyond the single
sentence in these policy statements, there is no indication of any
shared goal of teaching that homosexuality is incompatible with
being "morally straight" and "clean." Neither BSA's mission
statement nor its official membership policy was altered; no Boy
Scout or Scoutmaster Handbook was amended to reflect the policy
statement; no lessons were imparted to Scouts; no change was
made to BSA's policy on limiting discussion of sexual matters; and
no effort was made to restrict acceptable religious affiliations to
those that condemn homosexuality. In short, there is no evidence
that this view was part of any collective effort to foster beliefs about
homosexuality.7
Third, BSA never took any clear and unequivocal position on
homosexuality. Though the 1991 and 1992 policies state one
interpretation of "morally straight" and "clean," the group's
published definitions appearing in the Boy Scout and Scoutmaster
Handbooks take quite another view. And BSA's broad religious
tolerance combined with its declaration that sexual matters are not
its "proper area" render its views on the issue equivocal at best and
incoherent at worst. We have never held, however, that a group
can throw together any mixture of contradictory positions and then
invoke the right to associate to defend any one of those views. At
a minimum, a group seeking to prevail over an antidiscrimination
law must adhere to a clear and unequivocal view.
Fourth, at most the 1991 and 1992 statements declare only that
BSA believed "homosexual conduct is inconsistent with the
requirement in the Scout Oath that a Scout be morally straight and
in the Scout Law that a Scout be clean in word and deed." Id., at
457 (emphasis added). But New Jersey's law prohibits
discrimination on the basis of sexual orientation. And when Dale
was expelled from the Boy Scouts, BSA said it did so because of his
sexual orientation, not because of his sexual conduct.8
It is clear, then, that nothing in these policy statements
supports BSA's claim. The only policy written before the revocation
of Dale's membership was an equivocal, undisclosed statement that
evidences no connection between the group's discriminatory
intentions and its expressive interests. The later policies
demonstrate a brief--though ultimately abandoned--attempt to tie
BSA's exclusion to its expression, but other than a single sentence,
BSA fails to show that it ever taught Scouts that homosexuality is
not "morally straight" or "clean," or that such a view was part of
the group's collective efforts to foster a belief. Furthermore, BSA's
policy statements fail to establish any clear, consistent, and
unequivocal position on homosexuality. Nor did BSA have any
reason to think Dale's sexual conduct, as opposed to his
orientation, was contrary to the group's values.
BSA's inability to make its position clear and its failure to
connect its alleged policy to its expressive activities is highly
significant. By the time Dale was expelled from the Boy Scouts in
1990, BSA had already been engaged in several suits under a
variety of state antidiscrimination public accommodation laws
challenging various aspects of its membership policy.9 Indeed, BSA
had filed amicus briefs before this Court in two earlier right to
associate cases (Roberts v. United States Jaycees, 468 U. S.
609 (1984), and Board of Directors of Rotary Int'l v. Rotary Club of
Duarte, 481 U. S. 537 (1987)) pointing to these very cases; it was
clearly on notice by 1990 that it might well be subjected to state
public accommodation antidiscrimination laws, and that a court
might one day reject its claimed right to associate. Yet it took no
steps prior to Dale's expulsion to clarify how its exclusivity was
connected to its expression. It speaks volumes about the credibility
of BSA's claim to a shared goal that homosexuality is incompatible
with Scouting that since at least 1984 it had been aware of this
issue--indeed, concerned enough to twice file amicus briefs before
this Court--yet it did nothing in the intervening six years (or even
in the years after Dale's explusion) to explain clearly and openly
why the presence of homosexuals would affect its expressive
activities, or to make the view of "morally straight" and "clean"
taken in its 1991 and 1992 policies a part of the values actually
instilled in Scouts through the Handbook, lessons, or otherwise.
III
BSA's claim finds no support in our cases. We have recognized
"a right to associate for the purpose of engaging in those activities
protected by the First Amendment--speech, assembly, petition for
the redress of grievances, and the exercise of
religion." Roberts, 487 U. S. 1, 13 (1988). For example, we have
routinely and easily rejected assertions of this right by expressive
organizations with discriminatory membership policies, such as
private schools,10 law firms,11 and labor organizations.12 In fact,
until today, we have never once found a claimed right to associate
in the selection of members to prevail in the face of a State's
antidiscrimination law. To the contrary, we have squarely held that
a State's antidiscrimination law does not violate a group's right to
associate simply because the law conflicts with that group's
exclusionary membership policy.
In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we
addressed just such a conflict. The Jaycees was a nonprofit
membership organization " `designed to inculcate in the individual
membership . . . a spirit of genuine Americanism and civic interest,
and . . . to provide ... an avenue for intelligent participation by
591
young men in the affairs of their community.' " Id., at 612-613.
The organization was divided into local chapters, described as
" `young men's organization[s],' " in which regular membership
was restricted to males between the ages of 18 and 35. Id., at
613. But Minnesota's Human Rights Act, which applied to the
Jaycees, made it unlawful to " `deny any person the full and equal
enjoyment of ... a place of public accommodation because of ...
sex.' " Id., at 615. The Jaycees, however, claimed that applying
the law to it violated its right to associate--in particular its right to
maintain its selective membership policy.
We rejected that claim. Cautioning that the right to associate is
not "absolute," we held that "[i]nfringements on that right may be
justified by regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved
through means significantly less restrictive of associational
freedoms." Id., at 623. We found the State's purpose of
eliminating discrimination is a compelling state interest that is
unrelated to the suppression of ideas. Id., at 623-626. We also
held that Minnesota's law is the least restrictive means of achieving
that interest. The Jaycees had "failed to demonstrate that the Act
imposes any serious burdens on the male members' freedom of
expressive association." Id., at 626. Though the Jaycees had
"taken public positions on a number of diverse issues, [and] ...
regularly engage in a variety of ... activities worthy of constitutional
protection under the First Amendment," there was "no basis in the
record for concluding that admission of women as full voting
members will impede the organization's ability to engage in these
protected activities or to disseminate its preferred views." Id., at
626-627. "The Act," we held, "requires no change in the Jaycees'
creed of promoting the interest of young men, and it imposes no
restrictions on the organization's ability to exclude individuals with
ideologies or philosophies different from those of its existing
members." Id., at 627.
We took a similar approach in Board of Directors of Rotary
Int'l v. Rotary Club of Duarte, 481 U. S. 537(1987). Rotary
International, a nonprofit corporation, was founded as " `an
organization of business and professional men united worldwide
who provide humanitarian service, encourage high ethical
standards in all vocations, and help build goodwill and peace in the
world.' " Id., at 539. It admitted a cross section of worthy business
and community leaders, id., at 540, but refused membership to
women. "[T]he exclusion of women," explained the group's General
Secretary, "results in an `aspect of fellowship ... that is enjoyed by
the present male membership.' " Id., at 541. That policy also
allowed the organization "to operate effectively in foreign countries
with varied cultures and social mores." Ibid. Though California's
Civil Rights Act, which applied to Rotary International, prohibited
discrimination on the basis of sex, id., at 541-542, n. 2, the
organization claimed a right to associate, including the right to
select its members.
As in Jaycees, we rejected the claim, holding that "the evidence
fails to demonstrate that admitting women to Rotary Clubs will
affect in any significant way the existing members' ability to carry
out their various purposes." 481 U. S., at 548. "To be sure," we
continued, "Rotary Clubs engage in a variety of commendable
service activities that are protected by the First Amendment. But
[California's Civil Rights Act] does not require the clubs to abandon
or alter any of these activities. It does not require them to abandon
their basic goals of humanitarian service, high ethical standards in
all vocations, good will, and peace. Nor does it require them to
abandon their classification system or admit members who do not
reflect a cross section of the community." Ibid. Finally, even if
California's law worked a "slight infringement on Rotary members'
right of expressive association, that infringement is justified
because it serves the State's compelling interest in eliminating
discrimination against women." Id., at 549.13
Several principles are made perfectly clear
by Jaycees and Rotary Club. First, to prevail on a claim of
expressive association in the face of a State's antidiscrimination
law, it is not enough simply to engage in some kind of expressive
activity. Both the Jaycees and the Rotary Club engaged in
expressive activity protected by the First Amendment,14 yet that
fact was not dispositive. Second, it is not enough to adopt an openly
avowed exclusionary membership policy. Both the Jaycees and the
Rotary Club did that as well.15 Third, it is not sufficient merely to
articulate some connection between the group's expressive
activities and its exclusionary policy. The Rotary Club, for example,
justified its male-only membership policy by pointing to the
" `aspect of fellowship ... that is enjoyed by the [exclusively] male
membership' " and by claiming that only with an exclusively male
membership could it "operate effectively" in foreign
countries. Rotary Club, 481 U. S., at 541.
Rather, in Jaycees, we asked whether Minnesota's Human
Rights Law requiring the admission of women "impose[d]
any serious burdens" on the group's "collective effort on behalf of
[its] shared goals." 515 U. S. 557, 581 (1995) ("[A] private club
could exclude an applicant whose manifest views were at odds with
a position taken by the club's existing members"); New York State
Club Assn., 357 U. S. 449, 462-463 (1958) (asking whether law
"entail[ed] the likelihood of a substantial restraint upon the
exercise by petitioner's members of their right to freedom of
association" and whether law is "likely to affect adversely the ability
of petitioner and its members to pursue their collective effort to
foster beliefs"). The relevant question is whether the mere inclusion
of the person at issue would "impose any serious burden," "affect
in any significant way," or be "a substantial restraint upon" the
organization's "shared goals," "basic goals," or "collective effort to
foster beliefs." Accordingly, it is necessary to examine what,
exactly, are BSA's shared goals and the degree to which its
expressive activities would be burdened, affected, or restrained by
including homosexuals.
The evidence before this Court makes it exceptionally clear that
BSA has, at most, simply adopted an exclusionary membership
policy and has no shared goal of disapproving of homosexuality.
BSA's mission statement and federal charter say nothing on the
matter; its official membership policy is silent; its Scout Oath and
Law--and accompanying definitions--are devoid of any view on the
topic; its guidance for Scouts and Scoutmasters on sexuality
declare that such matters are "not construed to be Scouting's
proper area," but are the province of a Scout's parents and pastor;
and BSA's posture respecting religion tolerates a wide variety of
views on the issue of homosexuality. Moreover, there is simply no
evidence that BSA otherwise teaches anything in this area, or that
it instructs Scouts on matters involving homosexuality in ways not
conveyed in the Boy Scout or Scoutmaster Handbooks. In short,
Boy Scouts of America is simply silent on homosexuality. There is
no shared goal or collective effort to foster a belief about
homosexuality at all--let alone one that is significantly burdened by
admitting homosexuals.
As in Jaycees, there is "no basis in the record for concluding
that admission of [homosexuals] will impede the [Boy Scouts']
ability to engage in [its] protected activities or to disseminate its
preferred views" and New Jersey's law "requires no change in
[BSA's] creed." 468 U. S., at 626-627. And like Rotary Club, New
Jersey's law "does not require [BSA] to abandon or alter any of" its
activities. 481 U. S., at 548. The evidence relied on by the Court
is not to the contrary. The undisclosed 1978 policy certainly adds
nothing to the actual views disseminated to the Scouts. It simply
says that homosexuality is not "appropriate." There is no reason to
give that policy statement more weight than Rotary International's
assertion that all-male membership fosters the group's "fellowship"
and was the only way it could "operate effectively." As for BSA's
post-revocation statements, at most they simply adopt a policy of
discrimination, which is no more dispositive than the openly
discriminatory policies held insufficient in Jaycees and Rotary Club;
there is no evidence here that BSA's policy was necessary to--or
even a part of--BSA's expressive activities or was every taught to
Scouts.
Equally important is BSA's failure to adopt any clear position on
homosexuality. BSA's temporary, though ultimately abandoned,
view that homosexuality is incompatible with being "morally
straight" and "clean" is a far cry from the clear, unequivocal
statement necessary to prevail on its claim. Despite the solitary
sentences in the 1991 and 1992 policies, the group continued to
592
disclaim any single religious or moral position as a general matter
and actively eschewed teaching any lesson on sexuality. It also
continued to define "morally straight" and "clean" in the Boy Scout
and Scoutmaster Handbooks without any reference to
homosexuality. As noted earlier, nothing in our cases suggests that
a group can prevail on a right to expressive association if it,
effectively, speaks out of both sides of its mouth. A State's
antidiscrimination law does not impose a "serious burden" or a
"substantial restraint" upon the group's "shared goals" if the group
itself is unable to identify its own stance with any clarity.
IV
The majority pretermits this entire analysis. It finds that BSA in
fact " `teach[es] that homosexual conduct is not morally
straight.' " Ante, at 9. This conclusion, remarkably, rests entirely
on statements in BSA's briefs. See ibid. (citing Brief for Petitioners
39; Reply Brief for Petitioners 5). Moreover, the majority insists
that we must "give deference to an association's assertions
regarding the nature of its expression" and "we must also give
deference to an association's view of what would impair its
expression." Ante, at 10. So long as the record "contains written
evidence" to support a group's bare assertion, "[w]e need not
inquire further." Ante, at 9. Once the organization "asserts" that it
engages in particular expression, ibid., "[w]e cannot doubt" the
truth of that assertion, ante, at 10.
This is an astounding view of the law. I am unaware of any
previous instance in which our analysis of the scope of a
constitutional right was determined by looking at what a litigant
asserts in his or her brief and inquiring no further. It is even more
astonishing in the First Amendment area, because, as the majority
itself acknowledges, "we are obligated to independently review the
factual record." Ante, at 6. It is an odd form of independent review
that consists of deferring entirely to whatever a litigant claims. But
the majority insists that our inquiry must be "limited," ante, at 7,
because "it is not the role of the courts to reject a group's expressed
values because they disagree with those values or find them
internally inconsistent." Ante, at 8; see also Brief for Petitioners 25
("[T]he Constitution protects [BSA's] ability to control its own
message").
But nothing in our cases calls for this Court to do any such thing.
An organization can adopt the message of its choice, and it is not
this Court's place to disagree with it. But we must inquire whether
the group is, in fact, expressing a message (whatever it may be)
and whether that message (if one is expressed) is significantly
affected by a State's antidiscrimination law. More critically, that
inquiry requires our independent analysis, rather than deference to
a group's litigating posture. Reflection on the subject dictates that
such an inquiry is required.
Surely there are instances in which an organization that truly
aims to foster a belief at odds with the purposes of a State's
antidiscrimination laws will have a First Amendment right to
association that precludes forced compliance with those laws. But
that right is not a freedom to discriminate at will, nor is it a right to
maintain an exclusionary membership policy simply out of fear of
what the public reaction would be if the group's membership were
opened up. It is an implicit right designed to protect the
enumerated rights of the First Amendment, not a license to act on
any discriminatory impulse. To prevail in asserting a right of
expressive association as a defense to a charge of violating an
antidiscrimination law, the organization must at least show it has
adopted and advocated an unequivocal position inconsistent with a
position advocated or epitomized by the person whom the
organization seeks to exclude. If this Court were to defer to
whatever position an organization is prepared to assert in its briefs,
there would be no way to mark the proper boundary between
genuine exercises of the right to associate, on the one hand, and
sham claims that are simply attempts to insulate nonexpressive
private discrimination, on the other hand. Shielding a litigant's
claim from judicial scrutiny would, in turn, render civil rights
legislation a nullity, and turn this important constitutional right into
a farce. Accordingly, the Court's prescription of total deference will
not do. In this respect, Justice Frankfurter's words seem
particularly apt:
"Elaborately to argue against this contention is to dignify a claim
devoid of constitutional substance. Of course a State may leave
abstention from such discriminations to the conscience
individuals. On the other hand, a State may choose to put its
authority behind one of the cherished aims of American feeling by
forbidding indulgence in racial or religious prejudice to another's
hurt. To use the Fourteenth Amendment as a sword against such
State power would stultify that Amendment. Certainly the
insistence by individuals on their private prejudices as to race, color
or creed, in relations like those now before us, ought not to have a
higher constitutional sanction than the determination of a State to
extend the area of nondiscrimination beyond that which the
Constitution itself exacts." Railway Mail Assn. v. Corsi, 326 U. S.
88, 98 (1945) (concurring opinion).
There is, of course, a valid concern that a court's independent
review may run the risk of paying too little heed to an organization's
sincerely held views. But unless one is prepared to turn the right to
associate into a free pass out of antidiscrimination laws, an
independent inquiry is a necessity. Though the group must show
that its expressive activities will be substantially burdened by the
State's law, if that law truly has a significant effect on a group's
speech, even the subtle speaker will be able to identify that impact.
In this case, no such concern is warranted. It is entirely clear
that BSA in fact expresses no clear, unequivocal message burdened
by New Jersey's law.
V
Even if BSA's right to associate argument fails, it nonetheless
might have a First Amendment right to refrain from including
debate and dialogue about homosexuality as part of its mission to
instill values in Scouts. It can, for example, advise Scouts who are
entering adulthood and have questions about sex to talk "with your
parents, religious leaders, teachers, or Scoutmaster," and, in turn,
it can direct Scoutmasters who are asked such questions "not
undertake to instruct Scouts, in any formalized manner, in the
subject of sex and family life" because "it is not construed to be
Scouting's proper area." See supra, at 7-8. Dale's right to advocate
certain beliefs in a public forum or in a private debate does not
include a right to advocate these ideas when he is working as a
Scoutmaster. And BSA cannot be compelled to include a message
about homosexuality among the values it actually chooses to teach
its Scouts, if it would prefer to remain silent on that subject.
In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943),
we recognized that the government may not "requir[e] affirmation
of a belief and an attitude of mind," nor "force an American citizen
publicly to profess any statement of belief," even if doing so does
not require the person to "forego any contrary convictions of their
own." Id., at 633-634. "[O]ne important manifestation of the
principle of free speech is that one who chooses to speak may also
decide `what not to say.' " Hurley, 515 U. S., at 573. Though the
majority mistakenly treats this statement as going to the right to
associate, it actually refers to a free speech claim. See id., at 564-
565, 580-581 (noting distinction between free speech and right to
associate claims). As with the right to associate claim, though, the
court is obligated to engage in an independent inquiry into whether
the mere inclusion of homosexuals would actually force BSA to
proclaim a message it does not want to send. Id., at 567.
In its briefs, BSA implies, even if it does not directly argue, that
Dale would use his Scoutmaster position as a "bully pulpit" to
convey immoral messages to his troop, and therefore his inclusion
in the group would compel BSA to include a message it does not
want to impart. Brief for Petitioners 21-22. Even though the
majority does not endorse that argument, I think it is important to
explain why it lacks merit, before considering the argument the
majority does accept.
of
BSA has not contended, nor does the record support, that Dale
had ever advocated a view on homosexuality to his troop before his
membership was revoked. Accordingly, BSA's revocation could only
have been based on an assumption that he would do so in the
future. But the only information BSA had at the time it revoked
Dale's membership was a newspaper article describing a seminar
at Rutgers University on the topic of homosexual teenagers that
Dale attended. The relevant passage reads:
"James Dale, 19, co-president of the Rutgers University Lesbian
Gay Alliance with Sharice Richardson, also 19, said he lived a
double life while in high school, pretending to be straight while
attending a military academy.
"He remembers dating girls and even laughing at homophobic jokes
while at school, only admitting his homosexuality during his second
year at Rutgers.
" `I was looking for a role model, someone who was gay and
accepting of me,' Dale said, adding he wasn't just seeking sexual
experiences, but a community that would take him in and provide
him with a support network and friends." App. 517.
Nothing in that article, however, even remotely suggests that Dale
would advocate any views on homosexuality to his troop. The
Scoutmaster Handbook instructs Dale, like all Scoutmasters, that
sexual issues are not their "proper area," and there is no evidence
that Dale had any intention of violating this rule. Indeed, from all
accounts Dale was a model Boy Scout and Assistant Scoutmaster
up until the day his membership was revoked, and there is no
reason to believe that he would suddenly disobey the directives of
BSA because of anything he said in the newspaper article.
To be sure, the article did say that Dale was co-president of the
Lesbian/Gay Alliance at Rutgers University, and that group
presumably engages in advocacy regarding homosexual issues. But
surely many members of BSA engage in expressive activities
outside of their troop, and surely BSA does not want all of that
expression to be carried on inside the troop. For example, a
Scoutmaster may be a member of a religious group that encourages
its followers to convert others to its faith. Or a Scoutmaster may
belong to a political party that encourages its members to advance
its views among family and friends.16 Yet BSA does not think it is
appropriate for Scoutmasters to proselytize a particular faith to
unwilling Scouts or to attempt to convert them from one religion to
another.17 Nor does BSA think it appropriate for Scouts or
Scoutmasters to bring politics into the troop.18 From all accounts,
then, BSA does not discourage or forbid outside expressive activity,
but relies on compliance with its policies and trusts Scouts and
Scoutmasters alike not to bring unwanted views into the
organization. Of course, a disobedient member who flouts BSA's
policy may be expelled. But there is no basis for BSA to presume
that a homosexual will be unable to comply with BSA's policy not
to discuss sexual matters any more than it would presume that
politically or religiously active members could not resist the urge to
proselytize or politicize during troop meetings.19 As BSA itself puts
it, its rights are "not implicated unless a prospective
leader presents himself as a role model inconsistent with Boy
593
Scouting's understanding of the Scout Oath and Law." Brief for
Petitioners 6 (emphases added).20
The majority, though, does not rest its conclusion on the claim
that Dale will use his position as a bully pulpit. Rather, it contends
that Dale's mere presence among the Boy Scouts will itself force
the group to convey a message about homosexuality--even if Dale
has no intention of doing so. The majority holds that "[t]he
presence of an avowed homosexual and gay rights activist in an
assistant scoutmaster's uniform sends a distinc[t] ... message,"
and, accordingly, BSA is entitled to exclude that message. Ante, at
13. In particular, "Dale's presence in the Boy Scouts would, at the
very least, force the organization to send a message, both to the
youth members and the world, that the Boy Scouts accepts
homosexual conduct as a legitimate form of behavior." Ante, at
11; see also Brief for Petitioners 24 ("By donning the uniform of an
adult leader in Scouting, he would `celebrate [his] identity' as an
openly gay Scout leader").
The majority's argument relies exclusively on Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc., 515
U. S. 557 (1995). In that case, petitioners John Hurley and the
South Boston Allied War Veterans Council ran a privately operated
St. Patrick's Day parade. Respondent, an organization known as
"GLIB," represented a contingent of gays, lesbians, and bisexuals
who sought to march in the petitioners' parade "as a way to express
pride in their Irish heritage as openly gay, lesbian, and bisexual
individuals." Id., at 561. When the parade organizers refused
GLIB's admission, GLIB brought suit under Massachusetts'
antidiscrimination law. That statute, like New Jersey's law,
prohibited discrimination on account of sexual orientation in any
place of public accommodation, which the state courts interpreted
to include the parade. Petitioners argued that forcing them to
include GLIB in their parade would violate their free speech rights.
We agreed. We first pointed out that the St. Patrick's Day
parade--like most every parade--is an inherently expressive
undertaking. Id., at 568-570. Next, we reaffirmed that the
government may not compel anyone to proclaim a belief with which
he or she disagrees. Id., at 573-574. We then found that GLIB's
marching in the parade would be an expressive act suggesting the
view "that people of their sexual orientations have as much claim
to unqualified social acceptance as heterosexuals." Id., at 574.
Finally, we held that GLIB's participation in the parade "would likely
be perceived" as the parade organizers' own speech--or at least as
a view which they approved--because of a parade organizer's
customary control over who marches in the parade. Id., at 575.
Though Hurley has a superficial similarity to the present case, a
close inspection reveals a wide gulf between that case and the one
before us today.
First, it was critical to our analysis that GLIB was actually
conveying a message by participating in the parade--otherwise, the
parade organizers could hardly claim that they were being forced
to include any unwanted message at all. Our conclusion that GLIB
was conveying a message was inextricably tied to the fact that GLIB
wanted to march in a parade, as well as the manner in which it
intended to march. We noted the "inherent expressiveness of
marching [in a parade] to make a point," id., at 568, and in
particular that GLIB was formed for the purpose of making a
particular point about gay pride, id., at 561, 570. More specifically,
GLIB "distributed a fact sheet describing the members' intentions"
and, in a previous parade, had "marched behind a shamrock-strewn
banner with the simple inscription `Irish American Gay, Lesbian
and Bisexual Group of Boston.' " Ibid. "[A] contingent marching
behind the organization's banner," we said, would clearly convey a
message. Id., at 574. Indeed, we expressly distinguished between
the members of GLIB, who marched as a unit to express their views
about their own sexual orientation, on the one hand, and
homosexuals who might participate as individuals in the parade
without intending to express anything about their sexuality by
doing so. Id., at 572-573.
Second, we found it relevant that GLIB's message "would likely
be perceived" as the parade organizers' own speech. Id., at 575.
That was so because "[p]arades and demonstrations ... are not
594
understood to be so neutrally presented or selectively viewed" as,
say, a broadcast by a cable operator, who is usually considered to
be "merely `a conduit' for the speech" produced by others. Id., at
575-576. Rather, parade organizers are usually understood to
make the "customary determination about a unit admitted to the
parade." Id., at 575.
Dale's inclusion in the Boy Scouts is nothing like the case
in Hurley. His participation sends no cognizable message to the
Scouts or to the world. Unlike GLIB, Dale did not carry a banner or
a sign; he did not distribute any fact sheet; and he expressed no
intent to send any message. If there is any kind of message being
sent, then, it is by the mere act of joining the Boy Scouts. Such an
act does not constitute an instance of symbolic speech under the
First Amendment.21
It is true, of course, that some acts are so imbued with symbolic
meaning that they qualify as "speech" under the First Amendment.
See United States v. O'Brien, 391 U. S. 367, 376 (1968). At the
same time, however, "[w]e cannot accept the view that an
apparently limitless variety of conduct can be labeled `speech'
whenever the person engaging in the conduct intends thereby to
express an idea." Ibid. Though participating in the Scouts could
itself conceivably send a message on some level, it is not the kind
of act that we have recognized as speech.
See Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989).22 Indeed, if
merely joining a group did constitute symbolic speech; and such
speech were attributable to the group being joined; and that group
has the right to exclude that speech (and hence, the right to
exclude that person from joining), then the right of free speech
effectively becomes a limitless right to exclude for every
organization, whether or not it engages in anyexpressive activities.
That cannot be, and never has been, the law.
The only apparent explanation for the majority's holding, then,
is that homosexuals are simply so different from the rest of society
that their presence alone--unlike any other individual's--should be
singled out for special First Amendment treatment. Under the
majority's reasoning, an openly gay male is irreversibly affixed with
the label "homosexual." That label, even though unseen,
communicates a message that permits his exclusion wherever he
goes. His openness is the sole and sufficient justification for his
ostracism. Though unintended, reliance on such a justification is
tantamount to a constitutionally prescribed symbol of
inferiority.23 As counsel for the Boy Scouts remarked, Dale "put a
banner around his neck when he ... got himself into the newspaper
... . He created a reputation. ... He can't take that banner off. He
put it on himself and, indeed, he has continued to put it on himself."
See Tr. of Oral Arg. 25.
Another difference between this case and Hurley lies in the fact
that Hurley involved the parade organizers' claim to determine the
content of the message they wish to give at a particular time and
place. The standards governing such a claim are simply different
from the standards that govern BSA's claim of a right of expressive
association. Generally, a private person or a private organization
has a right to refuse to broadcast a message with which it
disagrees, and a right to refuse to contradict or garble its own
specific statement at any given place or time by including the
messages of others. An expressive association claim, however,
normally involves the avowal and advocacy of a consistent position
on some issue over time. This is why a different kind of scrutiny
must be given to an expressive association claim, lest the right of
expressive association simply turn into a right to discriminate
whenever some group can think of an expressive object that would
seem to be inconsistent with the admission of some person as a
member or at odds with the appointment of a person to a leadership
position in the group.
Furthermore, it is not likely that BSA would be understood to
send any message, either to Scouts or to the world, simply by
admitting someone as a member. Over the years, BSA has
generously welcomed over 87 million young Americans into its
ranks. In 1992 over one million adults were active BSA members.
160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion that
an organization of that size and enormous prestige implicitly
endorses the views that each of those adults may express in a non-
Scouting context is simply mind boggling. Indeed, in this case there
is no evidence that the young Scouts in Dale's troop, or members
of their families, were even aware of his sexual orientation, either
before or after his public statements at Rutgers University.24 It is
equally farfetched to assert that Dale's open declaration of his
homosexuality, reported in a local newspaper, will effectively force
BSA to send a message to anyone simply because it allows Dale to
be an Assistant Scoutmaster. For an Olympic gold medal winner or
a Wimbledon tennis champion, being "openly gay" perhaps
communicates a message--for example, that openness about one's
sexual orientation is more virtuous than concealment; that a
homosexual person can be a capable and virtuous person who
should be judged like anyone else; and that homosexuality is not
immoral--but it certainly does not follow that they necessarily send
a message on behalf of the organizations that sponsor the activities
in which they excel. The fact that such persons participate in these
organizations is not usually construed to convey a message on
behalf of those organizations any more than does the inclusion of
women, African-Americans, religious minorities, or any other
discrete group.25 Surely the organizations are not forced by
antidiscrimination laws to take any position on the legitimacy of any
individual's private beliefs or private conduct.
The State of New Jersey has decided that people who are open
and frank about their sexual orientation are entitled to equal access
to employment as school teachers, police officers, librarians,
athletic coaches, and a host of other jobs filled by citizens who
serve as role models for children and adults alike. Dozens of Scout
units throughout the State are sponsored by public agencies, such
as schools and fire departments, that employ such role models.
BSA's affiliation with numerous public agencies that comply with
New Jersey's law against discrimination cannot be understood to
convey any particular message endorsing or condoning the
activities of all these people.26
VI
Unfavorable opinions about homosexuals "have ancient
roots." Bowers v. Hardwick, 478 U. S. 186, 192(1986). Like
equally atavistic opinions about certain racial groups, those roots
have been nourished by sectarian doctrine. Id., at 196-197
(Burger, C. J., concurring); Loving v. Virginia, 388 U. S. 1,
3 (1967).27 See also Mathews v. Lucas, 427 U. S. 495, 520 (1976)
(Stevens, J., dissenting) ("Habit, rather than analysis, makes it
seem acceptable and natural to distinguish between male and
female, alien and citizen, legitimate and illegitimate; for too much
of our history there was the same inertia in distinguishing between
black and white"). Over the years, however, interaction with real
people, rather than mere adherence to traditional ways of thinking
about members of unfamiliar classes, have modified those opinions.
A few examples: The American Psychiatric Association's and the
American Psychological Association's removal of "homosexuality"
from their lists of mental disorders;28 a move toward greater
understanding within some religious communities;29Justice
Blackmun's classic opinion in Bowers;30 Georgia's invalidation of
the statute upheld in Bowers;31 and New Jersey's enactment of the
provision at issue in this case. Indeed, the past month alone has
witnessed some remarkable changes in attitudes about
homosexuals.32
That such prejudices are still prevalent and that they have
caused serious and tangible harm to countless members of the
class New Jersey seeks to protect are established matters of fact
that neither the Boy Scouts nor the Court disputes. That harm can
only be aggravated by the creation of a constitutional shield for a
policy that is itself the product of a habitual way of thinking about
strangers. As Justice Brandeis so wisely advised, "we must be ever
on our guard, lest we erect our prejudices into legal principles."
If we would guide by the light of reason, we must let our minds
be bold. I respectfully dissent.
595
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al.,
PETITIONERS v.
JAMES DALE
on writ of certiorari to the supreme court of
new jersey
[June 28, 2000]
Justice Souter, with whom Justice Ginsburg and Justice
Breyer join, dissenting.
I join Justice Stevens's dissent but add this further word on the
significance of Part VI of his opinion. There, Justice
Stevens describes the changing attitudes toward gay people and
notes a parallel with the decline of stereotypical thinking about race
and gender. The legitimacy of New Jersey's interest in forbidding
discrimination on all these bases by those furnishing public
accommodations is, as Justice Stevens indicates, acknowledged by
many to be beyond question. The fact that we are cognizant of this
laudable decline in stereotypical thinking on homosexuality should
not, however, be taken to control the resolution of this case.
Boy Scouts of America (BSA) is entitled, consistently with its
own tenets and the open doors of American courts, to raise a
federal constitutional basis for resisting the application of New
Jersey's law. BSA has done that and has chosen to defend against
enforcement of the state public accommodations law on the ground
that the First Amendment protects expressive association:
individuals have a right to join together to advocate opinions free
from government interference. See Roberts v. United States
Jaycees, 468 U. S. 609, 622 (1984). BSA has disclaimed any
argument that Dale's past or future actions, as distinct from his
unapologetic declaration of sexual orientation, would justify his
exclusion from BSA. See Tr. of Oral Arg. 12-13.
The right of expressive association does not, of course, turn on
the popularity of the views advanced by a group that claims
protection. Whether the group appears to this Court to be in the
vanguard or rearguard of social thinking is irrelevant to the group's
rights. I conclude that BSA has not made out an expressive
association claim, therefore, not because of what BSA may
espouse, but because of its failure to make sexual orientation the
subject of any unequivocal advocacy, using the channels it
customarily employs to state its message. As Justice
Stevens explains, no group can claim a right of expressive
association without identifying a clear position to be advocated over
time in an unequivocal way. To require less, and to allow exemption
from a public accommodations statute based on any individual's
difference from an alleged group ideal, however expressed and
however inconsistently claimed, would convert the right of
expressive association into an easy trump of any antidiscrimination
law.*1
If, on the other hand, an expressive association claim has met
the conditions Justice Stevens describes as necessary, there may
well be circumstances in which the antidiscrimination law must
yield, as he says. It is certainly possible for an individual to become
so identified with a position as to epitomize it publicly. When that
position is at odds with a group's advocated position, applying an
antidiscrimination statute to require the group's acceptance of the
individual in a position of group leadership could so modify or
muddle or frustrate the group's advocacy as to violate the
expressive associational right. While it is not our business here to
rule on any such hypothetical, it is at least clear that our estimate
of the progressive character of the group's position will be irrelevant
to the First Amendment analysis if such a case comes to us for
decision.

G.R. No. 101083 July 30, 1993
OPOSA, et al.petitioners,
vs.
Facroran
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,
596
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.
597
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. 10Needless 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
598
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.
599
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.
600
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.

601
G.R. No. 126102
ORTIGAS & CO.
vs.
THE COURT OF APPEALS and
III, respondents.
DECISION
QUISUMBING, J.:
December 4, 2000 On June 16, 1995, the trial court issued the writ of preliminary
injunction. On June 29, 1995, Mathay III moved to set aside the
injunctive order, but the trial court denied the motion.
LTD., petitioner,
ISMAEL G. MATHAY Mathay III then filed with the Court of Appeals a special civil action
for certiorari, docketed as CA-G.R. SP No. 39193, ascribing to the
trial court grave abuse of discretion in issuing the writ of
preliminary injunction. He claimed that MMC Ordinance No. 81-01
classified the area where the lot was located as commercial area
and said ordinance must be read into the August 25, 1976 Deed of
Sale as a concrete exercise of police power.

This petition seeks to reverse the decision of the Court of Appeals,
dated March 25, 1996, in CA-G.R. SP No. 39193, which nullified the
writ of preliminary injunction issued by the Regional Trial Court of
Pasig City, Branch 261, in Civil Case No. 64931. It also assails the
resolution of the appellate court, dated August 13, 1996, denying
petitioner’s motion for reconsideration.
The facts of this case, as culled from the records, are as follows:
Ortigas and Company averred that inasmuch as the restrictions on
the use of the lot were duly annotated on the title it issued to Emilia
Hermoso, said restrictions must prevail over the ordinance,
specially since these restrictions were agreed upon before the
passage of MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the case as
follows:

On August 25, 1976, petitioner Ortigas & Company sold to Emilia
Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759,
with an area of 1,508 square meters, located in Greenhills
Subdivision IV, San Juan, Metro Manila, and covered by Transfer
Certificate of Title No. 0737. The contract of sale provided that the
lot:
1. …(1) be used exclusively…for residential purposes only, and not
more than one single-family residential building will be constructed
thereon,…
xxx
6. The BUYER shall not erect…any sign or billboard on the roof…for
advertising purposes…
xxx
11. No single-family residential building shall be erected…until the
building plans, specification…have been approved by the SELLER…
xxx
14....restrictions shall run with the land and shall be construed as
real covenants until December 31, 2025 when they shall cease and
terminate…1
These and the other conditions were duly annotated on the
certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan
Manila Development Authority) enacted MMC Ordinance No. 81-01,
also known as the Comprehensive Zoning Area for the National
Capital Region. The ordinance reclassified as a commercial area a
portion of Ortigas Avenue from Madison to Roosevelt Streets of
Greenhills Subdivision where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased the
lot from Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease
contract did not specify the purposes of the lease. Thereupon,
private respondent constructed a single story commercial building
for Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia
Hermoso with the Regional Trial Court of Pasig, Branch 261.
Docketed as Civil Case No. 64931, the complaint sought the
demolition of the said commercial structure for having violated the
terms and conditions of the Deed of Sale. Complainant prayed for
the issuance of a temporary restraining order and a writ of
preliminary injunction to prohibit petitioner from constructing the
commercial building and/or engaging in commercial activity on the
lot. The complaint was later amended to implead Ismael G. Mathay
III and J.P. Hermoso Realty Corp., which has a ten percent (10%)
interest in the lot.
In his answer, Mathay III denied any knowledge of the restrictions
on the use of the lot and filed a cross-claim against the Hermosos.
602
WHEREFORE, in light of the foregoing, the petition is hereby
GRANTED. The assailed orders are hereby nullified and set aside.
SO ORDERED.2
In finding for Mathay III, the Court of Appeals held that the MMC
Ordinance No. 81-01 effectively nullified the restrictions allowing
only residential use of the property in question.
Ortigas seasonably moved for reconsideration, but the appellate
court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the "principal issue
in this case is whether respondent Court of Appeals correctly set
aside the Order dated June 16, 1995 of the trial court which issued
the writ of preliminary injunction on the sole ground that MMC
Ordinance No. 81-01 nullified the building restriction imposing
exclusive residential use on the property in question."3 It also
asserts that "Mathay III lacks legal capacity to question the validity
of conditions of the deed of sale; and he is barred by estoppel or
waiver to raise the same question like his principals, the
owners."4 Lastly, it avers that the appellate court "unaccountably
failed to address" several questions of fact.
Principally, we must resolve the issue of whether the Court of
Appeals erred in holding that the trial court committed grave abuse
of discretion when it refused to apply MMC Ordinance No.81-01 to
Civil Case No. 64931.
But first, we must address petitioner’s allegation that the Court of
Appeals "unaccountably failed to address" questions of fact. For
basic is the rule that factual issues may not be raised before this
Court in a petition for review and this Court is not duty-bound to
consider said questions.5 CA-G.R. SP No. 39193 was a special civil
action for certiorari, and the appellate court only had to determine
if the trial court committed grave abuse of discretion amounting to
want or excess of jurisdiction in issuing the writ of preliminary
injunction. Thus, unless vital to our determination of the issue at
hand, we shall refrain from further consideration of factual
questions.
Petitioner contends that the appellate court erred in limiting its
decision to the cited zoning ordinance. It avers that a contractual
right is not automatically discarded once a claim is made that it
conflicts with police power. Petitioner submits that the restrictive
clauses in the questioned contract is not in conflict with the zoning
ordinance. For one, according to petitioner, the MMC Ordinance No.
81-01 did not prohibit the construction of residential buildings.
Petitioner argues that even with the zoning ordinance, the seller
and buyer of the re-classified lot can voluntarily agree to an
exclusive residential use thereof. Hence, petitioner concludes that
the Court of Appeals erred in holding that the condition imposing
exclusive residential use was effectively nullified by the zoning
ordinance.
In its turn, private respondent argues that the appellate court
correctly ruled that the trial court had acted with grave abuse of
discretion in refusing to subject the contract to the MMC Ordinance
No. 81-01. He avers that the appellate court properly held the
police power superior to the non-impairment of contract clause in
the Constitution. He concludes that the appellate court did not err
in dissolving the writ of preliminary injunction issued by the trial
court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction,
the trial court observed that the contract of sale was entered into
in August 1976, while the zoning ordinance was enacted only in
March 1981. The trial court reasoned that since private respondent
had failed to show that MMC Ordinance No. 81-01 had retroactive
effect, said ordinance should be given prospective application
only,6 citing Co vs. Intermediate Appellate Court, 162 SCRA 390
(1988).
In general, we agree that laws are to be construed as having only
prospective operation. Lex prospicit, non respicit.Equally settled,
only laws existing at the time of the execution of a contract are
applicable thereto and not later statutes, unless the latter are
specifically intended to have retroactive effect.7 A later law which
enlarges, abridges, or in any manner changes the intent of the
parties to the contract necessarily impairs the contract itself8 and
cannot be given retroactive effect without violating the
constitutional prohibition against impairment of contracts.9
But, the foregoing principles do admit of certain exceptions. One
involves police power. A law enacted in the exercise of police power
to regulate or govern certain activities or transactions could be
given retroactive effect and may reasonably impair vested rights or
contracts. Police power legislation is applicable not only to future
contracts, but equally to those already in
existence.10 Nonimpairment of contracts or vested rights clauses
will have to yield to the superior and legitimate exercise by the
State of police power to promote the health, morals, peace,
education, good order, safety, and general welfare of the
people.11 Moreover, statutes in exercise of valid police power must
be read into every contract.12 Noteworthy, in Sangalang vs.
Intermediate Appellate Court,13 we already upheld MMC Ordinance
No. 81-01 as a legitimate police power measure.
The trial court’s reliance on the Co vs. IAC,14 is misplaced. In Co,
the disputed area was agricultural and Ordinance No. 81-01 did not
specifically provide that "it shall have retroactive effect so as to
discontinue all rights previously acquired over lands located within
the zone which are neither residential nor light industrial in
nature,"15 and stated with respect to agricultural areas covered that
"the zoning ordinance should be given prospective operation
only."16 The area in this case involves not agricultural but urban
residential land. Ordinance No. 81-01 retroactively affected the
operation of the zoning ordinance in Greenhills by reclassifying
certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust
Co., 94 SCRA 533 (1979), the contractual stipulations annotated
on the Torrens Title, on which Ortigas relies, must yield to the
ordinance. When that stretch of Ortigas Avenue from Roosevelt
Street to Madison Street was reclassified as a commercial zone by
the Metropolitan Manila Commission in March 1981, the restrictions
in the contract of sale between Ortigas and Hermoso, limiting all
construction on the disputed lot to single-family residential
buildings, were deemed extinguished by the retroactive operation
of the zoning ordinance and could no longer be enforced. While our
legal system upholds the sanctity of contract so that a contract is
deemed law between the contracting parties,17 nonetheless,
603
stipulations in a contract cannot contravene "law, morals, good
customs, public order, or public policy."18 Otherwise such
stipulations would be deemed null and void. Respondent court
correctly found that the trial court committed in this case a grave
abuse of discretion amounting to want of or excess of jurisdiction
in refusing to treat Ordinance No. 81-01 as applicable to Civil Case
No. 64931. In resolving matters in litigation, judges are not only
duty-bound to ascertain the facts and the applicable laws,19 they
are also bound by their oath of office to apply the applicable law.20
As a secondary issue, petitioner contends that respondent Mathay
III, as a mere lessee of the lot in question, is a total stranger to the
deed of sale and is thus barred from questioning the conditions of
said deed. Petitioner points out that the owners of the lot voluntarily
agreed to the restrictions on the use of the lot and do not question
the validity of these restrictions. Petitioner argues that Mathay III
as a lessee is merely an agent of the owners, and could not override
and rise above the status of his principals. Petitioner submits that
he could not have a higher interest than those of the owners, the
Hermosos, and thus had no locus standi to file CA-G.R. SP No.
39193 to dissolve the injunctive writ issued by the RTC of Pasig
City.
For his part, private respondent argues that as the lessee who built
the commercial structure, it is he and he alone who stands to be
either benefited or injured by the results of the judgment in Civil
Case No. 64931. He avers he is the party with real interest in the
subject matter of the action, as it would be his business, not the
Hermosos’, which would suffer had not the respondent court
dissolved the writ of preliminary injunction.
A real party in interest is defined as "the party who stands to be
benefited or injured by the judgment or the party entitled to the
avails of the suit." "Interest" within the meaning of the rule means
material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question
involved, or a mere incidental interest.21 By real interest is meant
a present substantial interest, as distinguished from a mere
expectancy or a future, contingent, subordinate, or consequential
interest.22
Tested by the foregoing definition, private respondent in this case
is clearly a real party in interest.1âwphi1 It is not disputed that he
is in possession of the lot pursuant to a valid lease. He is a
possessor in the concept of a "holder of the thing" under Article 525
of the Civil Code.23 He was impleaded as a defendant in the
amended complaint in Civil Case No. 64931. Further, what
petitioner seeks to enjoin is the building by respondent of a
commercial structure on the lot. Clearly, it is private respondent’s
acts which are in issue, and his interest in said issue cannot be a
mere incidental interest. In its amended complaint, petitioner
prayed for, among others, judgment "ordering the demolition of all
improvements illegally built on the lot in question."24 These show
that it is petitioner Mathay III, doing business as "Greenhills
Autohaus, Inc.," and not only the Hermosos, who will be adversely
affected by the court’s decree.
Petitioner also cites the rule that a stranger to a contract has no
rights or obligations under it,25 and thus has no standing to
challenge its validity.26 But in seeking to enforce the stipulations in
the deed of sale, petitioner impleaded private respondent as a
defendant. Thus petitioner must recognize that where a plaintiff has
impleaded a party as a defendant, he cannot subsequently question
the latter’s standing in court.27
WHEREFORE, the instant petition is DENIED. The challenged
decision of the Court of Appeals dated March 25, 1996, as well as
the assailed resolution of August 13, 1996, in CA-G.R. SP No. 39193
is AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. L-21707 March 18, 1967
FELIPE ACAR, ET AL., petitioners,
vs.
HON. INOCENCIO ROSAL, in his capacity as Executive Judge,
Court of First Instance of Negros Oriental, 12th Judicial
District, respondent.
BENGZON J.P., J.:
All over the world, Constitutions share one purpose: to protect and
enhance the people's interest, as a nation collectively and as
persons individually. The Philippine Constitution is no exception.
Interpretation of its provisions, therefore, should be done with a
view to realizing this fundamental objective. Among the provisions
in our Constitution is one both, timely and far-reaching, as it affects
the people at large and relates to social justice problems of the day.
It is Subsec. 21, Sec. I of Art. III: "Free access to the courts shall
not be denied to any person by reason of poverty." It is the one
involved in this case.
A suit was filed in the Court of First Instance of Negros Oriental on
February 21, 1963 by ten persons for their own behalf and that of
9,000 other farm laborers working off and on in sugar cane
plantations at the Bais milling district, Negros Oriental, against
Compañia General de Tabacos de Filipinas, Central Azucarera de
Bais, Compañia Celulosa de Filipinas, Ramon Barata, Aurelio
Montinola, Sr., and Miguel Franco. Plaintiffs sought to recover their
alleged participations or shares amounting to the aggregate sum of
P14,031,836.74, in the sugar, molasses, bagasse and other
derivatives based on the provisions of Republic Act 809 (The Sugar
Act of 1952), particularly Sections 1 and 9 thereof:
SECTION 1. In the absence of written milling agreements between
the majority of planters and the millers of sugarcane in any milling
district in the Philippines, the unrefined sugar produced in that
district from the milling by any sugar central of the sugar-cane of
any sugar-cane planter or plantation owner, as well as all by-
products and derivatives thereof, shall be divided between them as
follows:
Sixty per centum for the planter, and forty per centum for the
central in any milling district the maximum actual production of
which is not more than four hundred thousand piculs: Provided,
That the provisions of this section shall not apply to sugar centrals
with an actual production of less than one hundred fifty thousand
piculs;
Sixty-two and one-half per centum for the planter, and thirty-seven
and one-half per centum for the central in any milling district the
maximum actual production of which exceeds four hundred
thousand piculs but does not exceed six hundred thousand piculs;
Sixty-five per centum for the planter, and thirty-five per centum for
the central in any milling district the maximum actual production of
which exceeds six hundred thousand piculs but does not exceed
nine hundred thousand piculs;
Sixty-seven and one-half per centum for the planter, and thirty-
two and one-half per centum for the central in any milling district
the maximum actual production of which exceeds nine hundred
thousand piculs but does not exceed one million two hundred
thousand piculs;
Seventy per centum for the planter, and thirty per centum for the
central in any milling district the maximum actual production of
which exceeds one million two hundred thousand
piculs.1äwphï1.ñët
By actual production is meant the total production of the mill for
the crop year immediately preceding.
604
xxx xxx xxx
SEC. 9. In addition to the benefits granted by the Minimum Wage
Law, the proceeds of any increase in the participation granted the
planters under this Act and above their present share shall be
divided between the planter and his laborers in the plantation in
the following proportion:
Sixty per centum of the increased participation for the laborers and
forty per centum for the planters. The distribution of the share
corresponding to the laborers shall be made under the supervision
of the Department of Labor.
The benefits granted to laborers in sugar plantations under this Act
and in the Minimum Wage Law shall not in any way be diminished
by such labor contracts known as "by the piece," "by the volume,"
"by the area," or by any other system of "pakyaw," the Secretary
of Labor being hereby authorized to issue the necessary orders for
the enforcement of this provision."
Furthermore, plaintiffs asked thereunder as well as by separate
motion, that the aforementioned court authorize them to sue as
pauper litigants, under Sec. 22, Rule 3 of the Rules of Court:
SEC. 22. Pauper litigant. — Any court may authorize a litigant to
prosecute his action or defense as a pauper upon a proper showing
that he has no means to that effect by affidavits, certificate of the
corresponding provincial, city or municipal treasurer, or otherwise.
Such authority once given shall include an exemption from payment
of legal fees and from filing appeal bond, printed record and printed
brief. The legal fees shall be a lien to any judgment rendered in the
case favorably to the pauper, unless the court otherwise provides.
invoking Sec. 1, subsec. (21) of Art. III of the Constitution of the
Philippines. They alleged that they had no means, to pay the docket
fee of P14,500.00, being laborers dependent solely on their daily
wages for livehood and possessed of no properties. And in support
of the foregoing, the ten named plaintiffs submitted certificates of
the municipal treasurers of their places of residence stating that
they have no real property declared in their names in said
municipalities.
Acting on the petition to litigate in forma pauperis, the Court of First
Instance issued an order on May 27, 1963, denying the same upon
the ground that the plaintiffs have regular employment and sources
of income and, thus, can not be classified as poor or paupers.
Plaintiffs sought reconsideration of said order but reconsideration
was denied in an order dated June 11, 1963. Assailing said two CFI
orders and asserting their alleged right not to be denied free access
to the courts by reason of poverty, plaintiffs in said case filed
herein, on August 1, 1963, the present special civil action
or certiorari and mandamus. Petition to litigate as pauper in the
instant case before Us was also filed. And on August 16, 1963, We
allowed petitioners herein to litigate in this Court as paupers and
required respondent to answer. Respondent's answer was filed on
November 2, 1963. After hearing on February 10, 1964 this case
was submitted for decision.
The sole issue herein is whether petitioners were deprived, by the
orders in question, of free access to the courts by reason of poverty.
In denying petitioners' motion to litigate as paupers, respondent
Judge adopted the definition at "pauper" in Black's Law Dictionary
(at p. 1284) as "a person so poor that he must be supported at
public expense". And, as afore-stated, he ruled that petitioners are
not that poor.
Such interpretation, to our mind, does not fit with the purpose of
the rules on suits in forma pauperis and the provision of the
Constitution, in the Bill of Rights, that: "Free access to the courts
shall not be denied to any person by reason of poverty." As applied
to statutes or provisions on the right to sue in forma pauperis, the
term has a broader meaning. It has thus been recognized that: "An ordered to grant their petition to litigate in forma pauperis. No
applicant for leave to sue in forma pauperis need not be a pauper; costs. So ordered.
the fact that he is able-bodied and may earn the necessary money
is no answer to his statement that he has not sufficient means to
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,
prosecute the action or to secure the costs" (14 Am. Jur. 31). It
Sanchez and Castro, JJ., concur.
suffices that plaintiff is indigent (Ibid.), the not a public charge. And
the difference between "paupers" and "indigent" persons is that the
latter are "persons who have no property or source of income
sufficient for their support aside from their own labor, though self-
supporting when able to work and in employment" (Black's Law
Dictionary, p. 913, "Indigent", citing People vs. Schoharie County,
121 NY 345, 24 NE 830). It is therefore in this sense of being
indigent that "pauper" is taken when referring to suits in forma
pauperis. Black's Law Dictionary in fact defines pauper, thus: "A
person so poor that he must be supported at public expense; also
a suitor who, on account of poverty, is allowed to sue or defend
without being chargeable with costs" (p. 1284, emphasis supplied).

It is further argued that the docket fee of P14,500 would very well
be shouldered by petitioners since there are around 9,000 of them.
It must be remembered, however that the action in question was
filed by way of a class suit. And the Rules of Court allowing such
procedure state under Sec. 12, Rule 3:

SEC. 12. Class suit. — When the subject matter of the controversy
is one of common or general interest to many persons, and the
parties are so numerous that it is impracticable to bring them all
before the court, one or more may sue or defend for the benefit of
all. But in such case the court shall make sure that the parties
actually before it are sufficiently numerous and representative so
that all interest concerned are fully protected. Any party in interest
shall have a right to intervene in protection of his individual
interest.

So that in the suit before respondent Judge the ten named

petitioners herein are the ones suing, albeit for the benefit of all the
others. It follows that the payment of docket fee would be directly
charged upon them, not upon the unnamed "9,000 other laborers."
And even if the 9,000 other laborers should later bear the payment
of said docket fee of P14,500, the same would be spread among
them at about P1.60 each. Said cost of pressing their respective
average demand of P1.60 each is, to Our mind, a substantial
imposition on a seasonal farm laborer earning barely subsistent
wages. And as pointed out, this is only the initial fee; subsequent
fees and charges would have to be paid. The philosophy underlying
the constitutional mandate of free access to the courts
notwithstanding poverty, therefore, calls for exemption of herein
petitioners from payment of the aforesaid legal fees in their
assertion and claim of substantial rights under the Sugar Act of
1952.

Returning to the purpose of all Constitutions, as mentioned earlier,

We find this course the most sensible, logical and practical
construction demanded by the free access clause of the
Constitution. For a contrary interpretation could not make said
provision the living reality that it is designed to be.

As regards the fact that the supporting certifications of indigence

refer only to the ten named plaintiffs, suffice it to reiterate that this
involves a class suit, where it is not practicable to bring all the other
9,000 laborers before the court. This Court finds the supporting
evidence of indigence adequate, showing in petitioners' favor, as
plaintiffs in the suit before respondent Judge, the right not to be
denied free access to the courts by reason of poverty. Since they
were excluded from the use and enjoyment of said right,
mandamus lies to enforce it. Appeal was unavailing, since they
were not even accorded the status of litigants, for non-payment of
docket fee; and perfecting an appeal would have presented the
same question of exemption from legal fees, appeal bond and
similar requisites.

Wherefore, petitioners are declared entitled to litigate as paupers

in their class suit before respondent Judge and the latter is hereby

605
G.R. No. 122485 February 1, 1999 Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was
missing. She last saw her daughter wearing a pair of white shorts,
brown belt, a yellow hair ribbon, printed blue blouse, dirty white
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
panty, white lady sando and blue rubber slippers (TSN, August 23,
vs.
1995, pp. 22, 33).
LARRY MAHINAY Y AMPARADO, accused-appellant.

Isip testified that appellant failed to show up for supper that night.
PER CURIAM:
On the following day, June 26, 1995, at 2 o'clock in the morning,
appellant boarded a passenger jeepney driven by Fernando
A violation of the dignity, purity and privacy of a child who is still Trinidad at the talipapa. Appellant alighted at the top of the bridge
innocent and unexposed to the ways of worldly pleasures is a of the North Expressway and had thereafter disappeared (TSN,
harrowing experience that destroys not only her future but of the September 20, 1995, pp. 4-9; September 27, l995; pp. 14-17).
youth population as well, who in the teachings of our national hero,
are considered the hope of the fatherland. Once again, the Court is
That same morning, around 7:30, a certain Boy found the dead
confronted by another tragic desecration of human dignity,
body of Ma. Victoria inside the septic tank. Boy immediately
committed no less upon a child, who at the salad age of a few days
reported what he saw to the victim's parents, Eduardo and Elvira
past 12 years, has yet to knock on the portals of womanhood, and
Chan (TSN, September 6, 1995, p. 13).
met her untimely death as a result of the "intrinsically evil act" of
non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity With the help of the Valenzuela Police, the lifeless body of Ma.
is neither an excuse nor does there exist any other rational Victoria was retrieved from the septic tank. She was wearing a
justification other than lust. But those who lust ought not to last. printed blouse without underwear. Her face bore bruises. Results of
the autopsy revealed the following findings:
The Court quotes with approval from the People's Brief, the facts
narrating the horrible experience and the tragic demise of a young Cyanosis, lips and nailbeds,
and innocent child in the bloody hands of appellant, as such facts
are ably supported by evidence on record: 1*
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,

Appellant Larry Mahinay started working as houseboy with Maria

Isip on November 20, 1953. His task was to take care of Isip's
house which was under construction adjacent to her old residence
situated inside a compound at No. 4165 Dian Street, Gen. T. de
Leon, Valenzuela, Metro Manila. But he stayed and slept in an
apartment also owned by Isip, located 10 meters away from the
unfinished house (TSN, September 6, 1995, pp. 5-10).
The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in
Dian Street. She used to pass by Isip's house on her way to school
and play inside the compound yard, catching maya birds together
with other children. While they were playing, appellant was always
around washing his clothes. Inside the compound yard was a septic
tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.17;
20-22).
Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left
eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck,
antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm.,
left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior
aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular
area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left,
posterior aspect, middle third, 11.00 x 4.0 cm elbows, right, 4.0 x
3.0 cm. and left 6.0 x 5.0 cm, forearms, left, posterior aspect, lower
rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs;
right antero-lateral aspect, upper 33rd , 12.0 x 10.0 cm. right
anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd,
5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 X 1.0 cm. lateral
mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.

On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio

Rivera in a drinking spree. Around 10 o'clock in the morning,
appellant, who was already drunk, left Gregorio Rivera and asked
permission from Isip to go out with his friends (TSN, September 6,
1995; pp. 9-11).
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck,
subepicardial, subpleural petechial hemorrhages.

Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a Hemorrhage, subdural, left fronto-parietal area.
store fronting the compound, saw Ma.Victoria on that same day
three to four times catching birds inside Isip's unfinished house
around 4 o'clock in the afternoon. The unfinished house was about Tracheo-bronchial tree, congested.
8 meters away from Rivera's store (TSN, September 18, 1995, pp.
9-11). Other visceral organs, congested.

On the other hand, Sgt. Roberto Suni, also a resident of Dian
Street, went to his in-law's house between 6 to 7 o'clock p.m. to
call his office regarding changes on the trip of President Fidel V.
Ramos. The house of his in-laws was near the house of Isip. On his
way to his in-law's house, Sgt. Suni met appellant along Dian
Street. That same evening, between 8 to 9 o'clock p.m., he saw
Ma. Victoria standing in front of the gate of the unfinished house
(TSN, September 27, 1995, pp. 3-7; 14-17).
Later, at 9 o'clock in the evening, appellant showed up at Norgina
Rivera's store to buy lugaw. Norgina Rivera informed appellant that
there was none left of it. She notice that appellant appeared to be
uneasy and in deep thought. His hair was disarrayed; he was drunk
and was walking in a dazed manner. She asked why he looked so
worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).
606
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH - Asphyxia by Manual Strangulation;
Traumatic Head Injury, Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at
4:00 and 8:00 o'clock position corresponding to the face of
a watch edges congested with blood clots. (TSN, August 18,
1995; p. 4; Record, p. 126).
Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold
Alabastro were informed by Isip that her houseboy, appellant Larry
Mahinay, was missing. According to her, it was unlikely for
appellant to just disappear from the apartment since whenever he
would go out, he would normally return on the same day or early accordance to Article 47 of the Revised Penal Code as amended by
morning of the following day (TSN, September 6, 1995, pp. 6-11- Section 22 of Republic Act No. 7659.
27).
SO ORDERED. 4

SPO1 Nacis and SPO1 Alabastro were also informed that a

townmate of appellant was working in a pancit factory at Barangay
Upon automatic review by the Court en banc pursuant to Article 47
Reparo, Caloocan City. They proceeded to said place. The owner of
of the Revised Penal Code. (RPC), as amended,5 appellant insists
the factory confirmed to them that appellant used to work at the
that the circumstantial evidence presented by the prosecution
factory but she did not know his present whereabouts. Appellant's
against him is insufficient to prove his guilt beyond reasonable
townmate, on the other hand, informed them that appellant could
doubt. In his testimony summarized by the trial court, appellant
possibly be found on 8th Street, Grace Park, Caloocan City (TSN,
offered his version of what transpired as follows:
August 14, 1995, pp. 8-9).

The policemen returned to the scene of the crime. At the second
floor of the house under construction, they retrieved from one of
the rooms a pair of dirty white short pants, a brown belt and a
yellow hair ribbon which was identified by Elvira Chan to belong to
her daughter, Ma. Victoria. They also found inside another room a
pair of blue slippers which Isip identified as that of appellant. Also
found in the yard, three armslength away from the septic tank were
an underwear, a leather wallet, a pair of dirty long pants and a
pliers positively identified by Isip as appellant's belongings. These
items were brought to the police station (TSN, August 14, 1995,
pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).
A police report was subsequently prepared including a referral slip
addressed to the office of the Valenzuela Prosecutor. The next day,
SPO1 Virgilio Villano retrieved the victim's underwear from the
septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).
After a series of follow-up operations, appellant was finally arrested
in Barangay Obario Matala, Ibaan, Batangas. He was brought to the
Valenzuela Police Station. On July 7, 1995, with the assistance of
Atty. Restituto Viernes, appellant executed an extra-judicial
confession wherein he narrated in detail how he raped and killed
the victim. Also, when appellant came face to face with the victim's
mother and aunt, he confided to them that he was not alone in
raping and killing the victim. He pointed to Zaldy and Boyet as his
co-conspirators (TSN, August 14,1995, pp. 13-21).
Thus, on July 10, 1995, appellant was charged with rape with
homicide in an Information which reads:2
That on or about the 26th day of June 1995 in Valenzuela, Metro
Manila and within the jurisdiction of this Honorable Court the
above-named accused, by means of force and intimidation
employed upon the person of MARIA VICTORIA CHAN y
CABALLERO, age 12 years old, did then and there wilfully,
unlawfully and feloniously lie with and have sexual intercourse with
said MARIA VICTORIA CHAN Y CABALLERO against her will and
without her consent; that on the occasion of said sexual assault,
the above-named accused, choke and strangle said MARIA
VICTORIA CHAN Y CABALLERO as a result of which, said victim
died.
Contrary to law.3
to which he pleaded not guilty. After trial, the lower court rendered
a decision convicting appellant of the crime charged, sentenced him
to suffer the penalty of death and to pay a total of P73,000.00 to
the victim's heirs. The dispositive portion of the trial court's decision
states:
WHEREFORE, finding accused Larry Mahinay y Amparado guilty
beyond reasonable doubt of the crime charged, he is hereby
sentenced to death by electricution (sic). He is likewise condemned
to indemnify the heirs of the victim, Ma. Victoria Chan the amount
of P50,000.00 and to pay the further sum of P23,000.00 for the
funeral, burial and wake of the victim.
Let the complete records of the case be immediately forwarded to
the Honorable Supreme Court for the automatic review in
607
(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T.
de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and
a certain Totoy in a drinking spree. Gregorio Rivera is the brother
of Maria Isip, appellant's employer. After consuming three cases of
red horse beer, he was summoned by Isip to clean the jeepney. He
finished cleaning the jeepney at 12 o'clock noon. Then he had lunch
and took a bath. Later, he asked permission from Isip to go out
with his friends to see a movie. He also asked for a cash advance
of P300.00 (TSN, October 16, 1995, pp. 4-5-5).
At 2 o'clock in the afternoon, appellant, instead of going out with
his friend, opted to rejoin Gregorio Rivera and Totoy for another
drinking session. They consumed one case of red horse beer.
Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at Gregorio
Rivera's house. They went to Zaldy's house and bought a bottle of
gin. They finished drinking gin around 8 o'clock p.m. After
consuming the bottle of gin, they went out and bought another
bottle of gin from a nearby store. It was already 9 o'clock in the
evening. While they were at the store, appellant and Zaldy met
Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant
left (TSN, October 16, 1995, pp. 6-7).
On his way home, appellant passed by Norgina Rivera's store to
buy lugaw. Norgina Rivera informed him that there was none left
of it. He left the store and proceeded to Isip's apartment. But
because it was already closed, he decided to sleep at the second
floor of Isip's unfinished house. Around 10 o'clock p.m., Zaldy and
Boyet arrived carrying a cadaver. The two placed the body inside
the room where appellant was sleeping. As appellant stood up,
Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape
the dead body of the child or they would kill him. He, however,
refused to follow. Then, he was asked by Zaldy and Boyet to assist
them in bringing the dead body downstairs. He obliged and helped
dump the body into the septic tank. Thereupon, Zaldy and Boyet
warned him that should they ever see him again, they would kill
him. At 4 o'clock the following morning, he left the compound and
proceeded first to Navotas and later to Batangas (TSN, October 16,
1995, pp. 4-13).
Subsequently, appellant was apprehended by the police officers in
Ibaan, Batangas. The police officers allegedly brought him to a big
house somewhere in Manila. There, appellant heard the police
officer's plan to salvage him if he would not admit that he was the
one who raped and killed the victim. Scared, he executed an extra-
judicial confession. He claimed that he was assisted by Atty.
Restituto Viernes only when he was forced to sign the extra-judicial
confession (TSN, October 16, 1995, pp. 9-11).6
This being a death penalty case, the Court exercises the greatest
circumspection in the review thereof since "there can be no stake
higher and no penalty more severe . . . than the termination of a
human life." 7 For life, once taken is like virginity, which once
defiled can never be restored. In order therefore, that appellant's
guilty mind be satisfied, the Court states the reasons why, as the
records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with
appellant's proffered excuse are sufficient to sustain his conviction
beyond reasonable doubt, notwithstanding the absence of any
direct evidence relative to the commission of the crime for which
he was prosecuted. Absence of direct proof does not necessarily
absolve him from any liability because under the Rules on
evidence8 and pursuant to settled jurisprudence, 9 conviction may
be had on circumstantial evidence provided that the following
requisites concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are proven; and
3. the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support
a conviction, all circumstances must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent and
with every other rational hypothesis except that of guilt.10 Facts
and circumstances consistent with guilt and inconsistent with
innocence, constitute evidence which, in weight and probative
force, may surpass even direct evidence in its effect upon the
court.11
In the case at bench, the trial court gave credence to several
circumstantial evidence, which upon thorough review of the Court
is more than enough to prove appellant's guilt beyond the shadow
of reasonable doubt. These circumstantial evidence are as follows:
FIRST — Prosecution witness Norgina Rivera, sister-in-law
of Maria Isip, owner of the unfinished big house where the
crime happened and the septic tank where the body of Maria
Victoria Chan was found in the morning of June 26, 1995 is
located, categorically testified that at about 9:00 in the
evening on June 25, 1995, accused Larry Mahinay was in
her store located in front portion of the compound of her
sister-in-law Maria Isip where the unfinished big house is
situated buying rice noodle (lugaw). That she noticed the
accused's hair was disarranged, drunk and walking in
sigsagging manner. That the accused appeared uneasy and
seems to be thinking deeply. That the accused did not reply
to her queries why he looked worried but went inside the
compound.
SECOND — Prosecution witness Sgt. Roberto C. Suni,
categorically testified that on June 25, 1995 between 6:00
and 7:00 in the evening, on his way to his in-laws house,
he met accused Larry Mahinay walking on the road leading
to his in-law's residence which is about 50 to 75 meters
away to the unfinished big house of Maria Isip. That he also
saw victim Maria Victoria Chan standing at the gate of the
unfinished big house of Maria Isip between 8:00 and 9:00
in the same evening.
THIRD — Prosecution witness Maria Isip, owner of the
unfinished big house where victim's body was found inside
the septic tank, testified that accused Larry Mahinay is her
houseboy since November 20, 1993. That in the morning of
June 25, 1995, a Sunday, Larry Mahinay asked permission
from her to leave. That after finishing some work she asked
him to do accused Larry Mahinay left. That it is customary
on the part of Larry Mahinay to return in the afternoon of
the same day or sometimes in the next morning. That
accused Larry Mahinay did not return until he was arrested
in Batangas on July 7, 1995.
FOURTH — Prosecution witness Fernando Trinidad, a
passenger jeepney driver plying the route Karuhatan-Ugong
and vice versa which include Dian St., Gen. T. de Leon,
Valenzuela, Metro Manila, pinpointed the accused Larry
Mahinay as one of the passengers who boarded his
passenger jeepney on June 26, 1995 at 2:00 early morning
and alighted on top of the overpass of the North
Expressway.
608
FIFTH — Personal belongings of the victim was found in the
unfinished big house of Maria Isip where accused Larry
Mahinay slept on the night of the incident. This is a clear
indication that the victim was raped and killed in the said
premises.
There is no showing that the testimonies of the prosecution
witnesses (sic) fabricated or there was any reason for them
to testify falsely against the accused. The absence of any
evidence as to the existence of improper motive sustain the
conclusion that no such improper motive exists and that the
testimonies of the witnesses, therefore, should be given full
faith and credit. (People vs. Retubado, 58585 January 20,
1988 162 SCRA 276,. 284; People vs. Ali L-18512 October
30, 1969, 29 SCRA 756).
SIXTH — Accused Larry Mahinay during the custodial
investigation and after having been informed of his
constitutional rights with the assistance of Atty. Restituto
Viernes of the Public Attorney's Office voluntarily gave his
statement admitting the commission of the crime. Said
confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have
been freely and voluntarily given. That accused did not
complain to the proper authorities of any maltreatment on
his person (People vs. delos Santos L-3398 May 29,
1984;150 SCRA 311). He did not even informed the Inquest
Prosecutor when he sworn to the truth of his statement on
July 8, 1995 that he was forced, coersed or was promised
of reward or leniency. That his confession abound with
details know only to him. The Court noted that a lawyer
from the Public Attorneys Office Atty. Restituto Viernes and
as testified by said Atty. Viernes he informed and explained
to the accused his constitutional rights and was present all
throughout the giving of the testimony. That he signed the
statement given by the accused. Lawyer from the Public
Attorneys Office is expected to be watchful and vigilant to
notice any irregularity in the manner of the investigation
and the physical conditions of the accused. The post
mortem findings shows that the cause of death Asphyxia by
manual strangulation; Traumatic Head injury Contributory
substantiate. Consistent with the testimony of the accused
that he pushed the victim and the latter's head hit the table
and the victim lost consciousness.
Pagpasok niya sa kuwarto, hinawakan ko siya sa
kamay tapos tinulak ko siya, tapos tumama iyong
ulo niya sa mesa. Ayon na, nakatulog siya tapos ni-
rape ko na siya.
There is no clear proof of maltreatment and/or tortured in
giving the statement. There were no medical certificate
submitted by the accused to sustain his claim that he was
mauled by the police officers.
There being no evidence presented to show that said
confession were obtained as a result of violence,
torture, maltreatment, intimidation, threat or
promise of reward or leniency nor that the
investigating officer could have been motivated to
concoct facts narrated in said affidavit; the
confession of the accused is held to be true, correct
and freely or voluntarily given. (People v. Tuazon 6
SCRA 249; People v. Tiongson 6 SCRA 431, People
v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA
73.)
SEVENTH — Accused Larry Mahinay testified in open Court
that he was notable to enter the apartment where he is
sleeping because it was already closed and he proceeded to
the second floor of the unfinished house and slept. He said
while sleeping Zaldy and Boyet arrived carrying the cadaver
of the victim and dumped it inside his room. That at the
point of a knife, the two ordered him to have sex with the
 dead body but he refused. That the two asked him to assist
them in dumping the dead body of the victim in the septic
tank downstairs. (Tsn pp. 8-9 October 16, 1995). This is
unbelievable and unnatural. Accused Larry Mahinay is
staying in the apartment and not in the unfinished house.
That he slept in the said unfinished house only that night of
June 25, 1995 because the apartment where he was staying
was already closed. The Court is at a loss how would Zaldy
and Boyet knew he (Larry Mahinay) was in the second floor
of the unfinished house.
Furthermore, if the child is already dead when brought by
Zaldy and Boyet in the room at the second floor of the
unfinished house where accused Larry Mahinay was
sleeping, why will Boyet and Zaldy still brought the cadaver
upstairs only to be disposed/dump later in the septic tank
located in the ground floor. Boyet and Zaldy can easily
disposed and dumped the body in the septic tank by
themselves.
It is likewise strange that the dead body of the child was
taken to the room where accused Larry Mahinay was
sleeping only to force the latter to have sex with the dead
body of the child.
We have no test to the truth of human testimony
except it's conformity to aver knowledge
observation and experience. Whatever is repugnant
to these belongs to the miraculous. (People vs.
Santos L-385 Nov. 16, 1979)
EIGHT — If the accused did not commit the crime and was
only forced to disposed/dumpted the body of the victim in
the septic tank, he could have apprise Col. Maganto, a high
ranking police officer or the lady reporter who interviewed
him. His failure and omission to reveal the same is
unnatural. An innocent person will at once naturally and
emphatically repel an accusation of crime as a matter of
preservation and self-defense and as a precaution against
prejudicing himself. A person's silence therefore,
particularly when it is persistent will justify an inference that
he is not innocent. (People vs. Pilones, L-32754-5 July 21,
1978).
NINTH — The circumstance of flight of the accused strongly
indicate his consciousness of guilt. He left the crime scene
on the early morning after the incident and did not return
until he was arrested in Batangas on July 7, 1995. 12
Guided by the three principles in the review of rape cases, to
wit:13
1). An accusation for rape can be made with facility; it is
difficult to prove but more difficult for the person accused,
though innocent, to disprove;
2). In view of the intrinsic nature of the crime of rape, where
only two persons are usually involved, the testimony of the
complainant is scrutinized with extreme caution; and
3). The evidence of the prosecution stands or falls on its
own merits and cannot be allowed to draw strength from
the weakness of the defense.
the foregoing circumstantial evidence clearly establishes the
felony of rape with homicide defined and penalized under
Section 335 of the Revised Penal Code, as amended by Section
11, R.A. 7659, which provides:
609
When and how rape is committed - Rape is committed by
having carnal knowledge of a woman under any of the
following circumstances.
1.) By using force or intimidation;
2.) When the woman is deprived of reason or
otherwise unconscious: and
3.) When the woman is under twelve years of age
or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with use of a
deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim
has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty
shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide
is committed the penalty shall be death.
The death penalty shall also be imposed if the crime of rape
is committed with any of the following attendant
circumstances:
1.) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-
law spouse of the parent of the victim.
2.) When the victim is under the custody of the
police or military authorities.
3.) When the rape is committed in full view of the
husband, parent, any of the children or other
relatives within the third degree of consanguinity.
4.) When the victim is a religious or a child below
seven (7) years old.
5.) When the offender knows that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS)
disease.
6.) When committed by any member of the Armed
Forces of the Philippines or Philippine National Police
or any law enforcement agency
7.) When by reason or on the occasion of the rape,
the victim has suffered permanent physical
mutilation. 14
At the time of the commission of this heinous act, rape was still
considered a crime against chastity,15 although under the Anti-
Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified
as a crime against persons under Articles 266-A and 266-B, and
thus, may be prosecuted even without a complaint filed by the
offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual
congress with a woman by force and without consent. 16 (Under the
new law, rape may be committed even by a woman and the victim
may even be
man.) 17 If the woman is under 12 years of age, proof of force and
consent becomes immaterial18 not only because force is not an
element of statutory rape, 19 but the absence of a free consent is
presumed when the woman is below such age. Conviction will
therefore lie, provided sexual intercourse is proven. But if the
woman is 12 years of age or over at the time she was violated, as
in this case, not only the first element of sexual intercourse must
be proven but also the other element that the perpetrator's evil acts
with the offended party was done through force, violence,
intimidation or threat needs to be established. Both elements are
present in this case.
Based on the evidence on record, sexual intercourse with the victim
was adequately proven. This is shown from the testimony of the
medical doctor who conducted post mortem examination on the
child's body:
Q: And after that what other parts or the victim did
you examine?
A: Then I examined the genitalia of the victim.
Q: And what did you find out after you examined the
genitalia of the victim?
A: The hymen was tall-thick with complete
laceration at 4:00 o'clock and 8:00 o'clock position
and that the edges were congested.
Q: Now, what might have caused the laceration?
A: Under normal circumstances this might have (sic)
caused by a penetration of an organ.
Q: So, the laceration was caused by the penetration
of a male organ?
A: Adult male organ, sir.
Q: You are very sure of that, Mr. Witness?
A: I am very sure of that.20
Besides, as may be gleaned from his extrajudicial confession,
appellant himself admitted that he had sexual congress with the
unconscious child.
15. T: Ano ang nangyari ng mga sandali o oras na
iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA,
yung malaking bahay na ginagawa, tapos dumating
yung batang babae. Pag-pasok niya sa kuwarto
hinawakan ko siya sa kamay tapos tinulak ko siya.
Tapos tumama yung ulo niya sa mesa. Ayon na,
nakakatulog na siya tapos ni rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi
mo?
S: Itong short na ito, (pointing to a dirty white short
placed atop this investigator's table. Subject
evidence were part of evidences recovered at the
crime scene).
17. T: Bakit mo naman ni rape yung batang babae?
S: Eh nasobrahan ako ng lasing. Hindi ko na alam
ang ginagawa ko.
18. T: Ano ba ang inyong ininom bakit ka
nasobrahan ng lasing?
S: Red Horse po at saka GIN.
19. T: Saan lugar ng malaking bahay ni ATE MARIA
mo ni rape yung batang babae?.
S: Sa kuwarto ko po sa itaas.
20. T: Kailan ito at anong oras nangyari?
S: Mga bandang alas 8:00 ng gabi, araw ng Linggo,
hindi ko na matandaan kung anong petsa, basta
araw ng Linggo.
21. T: Saan lugar ito nangyari?
S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M.
22. T: Alam mo ba ang pangalan ng batang babae
na ni rape mo?
S: Hindi ko po alam.
23. T: Ngayon, nais kong ipaalam sa iyo na ang
pangalan ng batang babae na iyong ni rape at
pinatay ay si MA. VICTORIA CHAN? Matatandaan mo
a ha ito?
S: Oho.
24. T: Nung ma-rape mo, nakaraos ka ba?
S: Naka-isa po.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig
sabihin ng "NAKARAOS", maaari bang ipaliwanag
mo ito?
S: Nilabasan po ako ng tamod.
26 T: Nung nakaraos ka, nasaan parte na katawan
ng batang babae yung iyong ari?
S: Nakapasok po doon sa ari nung babae.
27. T: Natapos mong ma-rape si MA. VICTORIA
CHAN, ano pa ang sumunod mong ginawa?
S: Natulak ko siya sa terrace.
28. T: Ano ang nangyari kay MA. VICTORIA matapos
mong itulak sa terrace?
S: Inilagay ko po sa poso-negra.
29. T: Saan makikita yung poso negra na sinasabi
mo?
S: Doon din sa malaking bahay ni ATE MARIA.
30. T: Bakit mo namang naisipang ilagay si MA.
VICTORIA sa poso-negra?
S: Doon ko lang po inilagay.
31. T: Bakit nga doon mo inilagay siya?
S: Natatakot po ako.
32. T: Kanino ka natatakot?
S: Natatakot po ako sa ginawa kong masama,
natatakot ako sa mga pulis.
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo
siya sa poso-negra?
S: Hindi ko po alam dahil nung pagbagsak niya
inilagay ko na siya sa poso-negra.
34. T: Nung gawin mo ba itong krimen na ito,
mayroon ka kasama?
S: Nag-iisa lang po ako.
35. T: Noong mga oras o sandaling gahasain mo si
MA. VICTORIA CHAN, buhay pa ba siya o patay na?
S: Buhay pa po.
36. T: Papaano mo siya pinatay?
S: Tinulak ko nga po siya sa terrace.21
In proving sexual intercourse, it is not full or deep penetration of
the victim's vagina; rather the slightest penetration of the male
organ into the female sex organ is enough to consummate the
sexual intercourse. 22 The mere touching by the male's organ or
instrument of sex of the labia of the pudendum of the woman's
private parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim,
force was indeed employed upon her to satisfy carnal lust.
Moreover, from appellant's own account, he pushed the victim
causing the latter to hit her head on the table and fell unconscious.
It was at that instance that he ravished her and satisfied his
salacious and prurient desires. Considering that the victim, at the
time of her penile invasion, was unconscious, it could safely be
concluded that she had not given free and voluntary consent to her
defilement, whether before or during the sexual act.
Another thing that militates against appellant is his extra judicial
confession, which he, however, claims was executed in violation of
his constitutional right to counsel. But his contention is belied by
the records as well as the testimony of the lawyer who assisted,
warned and explained to him his constitutionally guaranteed pre-
interrogatory and custodial rights. As testified to by the assisting
lawyer:
Q — Will you please inform the Court what was that
call about?
A — We went to the station, police investigation
together with Atty. Froilan Zapanta and we were told
by Police Officer Alabastro that one Larry Mahinay
610
would like to confess of the crime of, I think, rape
with homicide.
Q — And upon reaching the investigation room of
Valenzuela PNP who were the other person present?
A — Police Officer Alabastro, sir, Police Officer Nacis
and other investigator inside the investigation room
and the parents of the child who was allegedly
raped.
Q — And when you reached the investigation room
do you notice whether the accused already there?
A — The accused was already there.
Q — Was he alone?
A — He was alone, sir.
Q — So, when you were already infront of SPO1
Arnold Alabastro and the other PNP Officers, what
did they tell you, if any?
A — They told us together with Atty. Zapanta that
this Larry Mahinay would like to confess of the crime
charged, sir.
Q — By the way, who was that Atty. Zapanta?
A — Our immediate Superior of the Public Attorney's
Office.
Q — Was he also present at the start of the question
and answer period to the accused?
A — No more, sir, he already went to our office. I
was left alone.
Q — But he saw the accused, Larry Mahinay?
A — Yes, sir.
Q — Now, when Atty. Zapanta left at what time did
the question and answer period start?
A — If I am not mistaken at around 4:05 of July 7,
1995 in the afternoon, sir.
Q — And when this question and answer period
started, what was the first thing that you did as
assisting lawyer to the accused?
A — First, I tried to explain to him his right, sir,
under the constitution.
Q — What are those right?
A — That he has the right to remain silent. That he
has the right of a counsel of his own choice and that
if he has no counsel a lawyer will be appointed to
him and that he has the right to refuse to answer
any question that would incriminate him.
Q — Now, after enumerating these constitutional
rights of accused Larry Mahinay, do you recall
whether this constitutional right enumerated by you
were reduced in writing?
A — Yes, sir, and it was also explained to him one
by one by Police Officer Alabastro.
Q — I show to you this constitutional right which you
said were reduced into writing, will you be able to
recognize the same?
A — Yes, sir.
Q — Will you please go over this and tell the Court
whether that is the same document you mentioned?
A — Yes, sir, these were the said rights reduced into
writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be
marked as our Exhibit A. proper.
Q — Do you recall after reducing into writing this
constitutional right of the accused whether you
asked him to sign to acknowledge or to conform?
A — I was the one who asked him, sir. It was Police
Officer Alabastro.
Q — But you were present?
A — I was then present when he signed.
Q — There is a signature in this constitutional right
after the enumeration, before and after there are
two (2) signatures, will you please recognize the two
(2) signatures?
A — These were the same signatures signed in my
presence, sir.
Q — The signature of whom?
A — The signature of Larry Mahinay, sir.
ATTY. PRINCIPE:
611
May we request, Your Honor, that the two (2)
signatures identified by my compañero be encircled
and marked as Exhibit A-1 and A-2.
Q — After you said that you apprised the accused of
his constitutional right explaining to him in Filipino,
in local dialect, what was the respond of the
accused?
A — Larry Mahinay said that we will proceed with his
statement.
Q — What was the reply?
A — He said "Opo".
Q — Did you ask him of his educational attainment?
A — It was the Police Officer who asked him.
Q — In your presence?
A — In my presence, sir.
Q — And when he said or when he replied "Opo" so
the question started?
A — Yes, sir.
Q — I noticed in this Exhibit A that there is also a
waiver of rights, were you present also when he
signed this waiver?
A — Yes, sir, I was also present.
Q — Did you explain to him the meaning of this
waiver?
A — I had also explained to him, sir.
Q — In Filipino?
A — In Tagalog, sir.
Q — And there is also a signature after the waiver
in Filipino over the typewritten name Larry Mahinay,
"Nagsasalaysay", whose signature is that?
A — This is also signed in my presence.
Q — Why are you sure that this is his signature?
A — He signed in my presence, sir.
Q — And below immediately are the two (2)
signatures. The first one is when Larry Mahinay
subscribed and sworn to, there is a signature here,
do you recognize this signature?
A — This is my signature, sir.
Q — And immediately after your first signature is a
Certification that you have personally examined the
accused Larry Mahinay and testified that he
voluntary executed the Extra Judicial Confession, do
you recognize the signature?
A — This is also my signature, sir.23 (emphasis
supplied).
Appellant's defense that two other persons brought to him the dead
body of the victim and forced him to rape the cadaver is too
unbelievable. In the words of Vice-Chancellor Van Fleet of New
Jersey, 24
Evidence to be believed must not only proceed from the
mouth of a credible witness, but must be credible in itself -
such as the common experience and observation of
mankind can approve as probable under the circumstances.
We have no test or the truth of human testimony, except
its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the
miraculous, and is outside of judicial cognizance.
Ultimately, all the foregoing boils down to the issue of credibility of
witnesses. Settled is the rule that the findings of facts and
assessment of credibility of witnesses is a matter best left to the
trial court because of its unique position of having observed that
elusive and incommunicable evidence of the witnesses' deportment
on the stand while testifying, which opportunity is denied to the
appellate courts.25 In this case, the trial court's findings,
conclusions and evaluation of the testimony of witnesses is received
on appeal with the highest respect, 26 the same being supported by
substantial evidence on record. There was no showing that the
court a quo had overlooked or disregarded relevant facts and
circumstances which when considered would have affected the
outcome of this case27 or justify a departure from the assessments
and findings of the court below. The absence of any improper or ill-
motive on the part of the principal witnesses for the prosecution all
the more strengthens the conclusion that no such motive
exists. 28 Neither was any wrong motive attributed to the police
officers who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court
is correct. Under Article 335 of the Revised Penal Code (RPC), as
amended by R.A. 7659 "when by reason or on occasion of the rape,
a homicide is committed, the penalty shall be death." This special
complex crime is treated by law in the same degree as qualified
rape - that is, when any of the 7 (now 10) "attendant
circumstances" enumerated in the law is alleged and proven, in
which instances, the penalty is death. In cases where any of those
circumstances is proven though not alleged, the penalty cannot be
death except if the circumstance proven can be properly
appreciated as an aggravating circumstance under Articles 14 and
15 of the RPC which will affect the imposition of the proper penalty
in accordance with Article 53 of the RPC However, if any of those
circumstances proven but not alleged cannot be considered as an
aggravating circumstance under Articles 14 and 15, the same
cannot affect the imposition of the penalty because Article 63 of the
RPC in mentioning aggravating circumstances refers to those
defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10
circumstances is alleged in the information/complaint, it may be
treated as a qualifying circumstance. But if it is not so alleged, it
may be considered as an aggravating circumstance, in which case
the only penalty is death - subject to the usual proof of such
circumstance in either case.
Death being a single indivisible penalty and the only penalty
prescribed by law for the crime of "rape with homicide", the court
has no option but to apply the same "regardless of any mitigating
or aggravating circumstance that may have attended the
commission of the crime"29 in accordance with Article 63 of the RPC,
as amended. 30 This case of rape with homicide carries with it
penalty of death which is mandatorily imposed by law within the
import of Article 47 of the RPC, as amended, which provides:
The death penalty shall be imposed in all cases in which it must be
imposed under existing laws, except when the guilty person is
below eighteen (18) years of age at the time of the commission of
the crime or is more than seventy years of age or when upon appeal
or automatic review of the case by the Supreme Court, the required
majority vote is not obtained for the imposition of the death
penalty, in which cases the penalty shall be reclusion perpetua.
(emphasis supplied).
In an apparent but futile attempt to escape the imposition of the
death penalty, appellant tried to alter his date of birth to show that
he was only 17 years and a few months old at the time he
committed the rape and thus, covered by the proscription on the
imposition of death if the guilty person is below eighteen (18) years
at the time of the commission of the crime.31 Again, the record
rebuffs appellant on this point considering that he was proven to
be already more than 20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to
a civil indemnity of fifty thousand pesos (P50,000.00) but if the
crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by
present amended law, the civil indemnity for the victim shall be not
less than seventy-five thousand pesos (P75,000.00).32 In addition
to such indemnity, she can also recover moral damages pursuant
to Article 2219 of the Civil Code 33 in such amount as the court
deems just, without the necessity for pleading or proof of the basis
thereof. 34 Civil indemnity is different from the award of moral and
exemplary damages. 35 The requirement of proof of mental and
physical suffering provided in Article 2217 of the Civil Code is
dispensed with because it is "recognized that the victim's injury is
inherently concomitant with and necessarily resulting from the
odious crime of rape to warrant per se the award of moral
damages". 36 Thus, it was held that a conviction for rape carries
with it the award of moral damages to the victim without need for
pleading or proof of the basis thereof. 37
612
Exemplary damages can also be awarded if the commission of the
crime was attended by one or more aggravating circumstances
pursuant to Article 2230 of the Civil Code38 after proof that the
offended party is entitled to moral, temperate and compensatory
damages. 39 Under the circumstances of this case, appellant is
liable to the victim's heirs for the amount of P75,000.00 as civil
indemnity and P50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to
ensure that the evidence against an accused were obtained through
lawful means, the Court, as guardian of the rights of the people
lays down the procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his companions must
do and observe at the time of making an arrest and again at and
during the time of the custodial interrogation 40 in accordance with
the Constitution, jurisprudence and Republic Act No. 7438: 41 It is
high-time to educate our law-enforcement agencies who neglect
either by ignorance or indifference the so-called Miranda rights
which had become insufficient and which the Court must update in
the light of new legal developments:
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to and
understood by said person;
2. He must be warned that he has a right to remain silent and that
anystatement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all
times and have the presence of an independent and competent
lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford
the services of a lawyer, one will be provided for him; and that a
lawyer may also be engaged by any person in his behalf, or may
be appointed by the court upon petition of the person arrested or
one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must
be informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;
6. The person arrested must be informed that, at any time, he has
the right to communicate or confer by the most expedient means -
telephone, radio, letter or messenger - with his lawyer (either
retained or appointed), any member of his immediate family, or
any medical doctor, priest or minister chosen by him or by any one
from his immediate family or by his counsel, or be visited by/confer
with duly accredited national or international non-government
organization. It shall be the responsibility of the officer to ensure
that this is accomplished;
7. He must be informed that he has the right to waive any of said
rights provided it is made voluntarily, knowingly and intelligently
and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer,
he must be informed that it must be done in writing AND in the
presence of counsel, otherwise, he must be warned that the waiver
is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate
in any manner at any time or stage of the process that he does not
wish to be questioned with warning that once he makes such
indication, the police may not interrogate him if the same had not
yet commenced, or the interrogation must ceased if it has already
begun;
10. The person arrested must be informed that his initial waiver of
his right to remain silent, the right to counsel or any of his rights
does not bar him from invoking it at any time during the process,
regardless of whether he may have answered some questions or
volunteered some statements;

11. He must also be informed that any statement or evidence, as

the case may be, obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.

Four members of the Court — although maintaining their adherence

to the separate opinions expressed in People v. Echegaray 42 that
R.A. No. 7659, insofar as it prescribes the death penalty, is
unconstitutional — nevertheless submit to the ruling of the Court,
by a majority vote, that the law is constitutional and that the death
penalty should accordingly be imposed.

WHEREFORE, the conviction of appellant is hereby AFFIRMED

except for the award of civil indemnity for the heinous rape which
is INCREASED to P75,000.00, PLUS P50,000.00 moral damages.

In accordance with Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this decision,
let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,

Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo,
Buena and Gonzaga-Reyes, JJ., concur.

613
G.R. No. 131036 June 20, 2001 found dead. Together with his chief investigator, Leonardo Esteban
and other personnel, he went to the scene of the incident to conduct
an investigation.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DONATO DEL ROSARIO, defendant-appellant. He found the single-storey house in complete disarray. The sala
was set on fire and he found the items therein burned. Likewise the
two bedrooms.
BUENA, J.:

He located the body of Raquel Lopez in the kitchen. Her head was
This is an appeal from the decision of the Regional Trial Court at
covered with a pink raincoat and around her neck was a CATV wire.
Olongapo City, Branch 72 in Criminal Case No. 838-92, entitled
She was lying face down, her hands behind her back.
"People of the Philippines versus Donato del Rosario," convicting
the accused of the crime of robbery with homicide and sentencing
him to reclusion perpetua. Inquiries made revealed that a certain Ramon Ilagan was seen in
the vicinity of the house before the incident. Ramon Ilagan was
interrogated but denied the accusation against him. Since no
On November 20, 1992, an information was filed against Donato
evidence could be produced linking him to the crime, he was
del Rosario charging him of robbery with homicide committed as
released.
follows:

Three days after the incident, the police received information from
"That on or about the twenty-sixth (26th) of September,
the live-in partner of Ilagan, that a certain Donato del Rosario was
1992, in the City of Olongapo, Philippines, and within the
seen standing at the back of the house of Paragua before the crime
jurisdiction of this Honorable Court, the above-named
was committed and had disappeared since then. Del Rosario’s
accused, with intent of gain and without the knowledge
mother and common-law wife were questioned about the
and consent of the owner, and by means of violence and
whereabouts of the accused. SPO1 Fernandez told the mother of
intimidation, did then and there wilfully, unlawfully and
del Rosario that her son was suspected of committing the crimes in
feloniously take, steal and carry away one (1) pc. of 22K
Balic-Balic.
grams of gold bracelet worth P3,500.00, one (1) pc. of
diamond ring with letter ‘E’ worth P3,200.00, one (1) pc.
of wedding ring worth P800.00, two (2) pairs of gold On October 2, 1992, the Olongapo City police received a call from
earring worth P1,600.00 and cash money in the amount the Subic police that Donato del Rosario surrendered to police
of P1,600.00, all in the total amount of Ten Thousand officer Fernando Morales, the brother-in-law of his common-law
Seven Hundred Pesos (P10,700.00), Philippine Currency, wife, Ruby Tan. Thereafter, SPO1 Fernandez, together with
belonging to Emelita Paragua, and on the occasion of said Inspector Leonardo Esteban and PO3 Laurea, proceeded to Subic
robbery and for the purpose of enabling him to take, steal to fetch Donato del Rosario.
and carry away the above-mentioned items, the herein
accused, did then and there wilfully, unlawfully,
Del Rosario, even without being asked, told them that he really
feloniously and taking advantage of superior strength and
surrendered to Morales because he was being bothered by his
with intent to kill treacherously attack, assault, hit her
conscience and that he was very willing to accompany them to
with a hard object on the head and then strangle and tie
recover the stolen items. He also volunteered the information as to
the neck of Raquel Lopez (niece of Emelita Paragua) with
where he sold the jewelries that he took from the house of Emelita
a Cat-V wire to prevent her from breathing and making
Paragua.
an outcry, thereby inflicting upon said Raquel Lopez
asphyxia injuries which directly caused her death shortly
thereafter."1 Thereafter the policemen from Olongapo and Donato del Rosario
proceeded to the places mentioned by the latter – Barrio Barretto,
Olongapo City, where the "Lovely Kahael Pawnshop" was located,
Upon arraignment on February 3, 1993, accused Donato del
and Barangay Magsaysay, Iba, Zambales. Del Rosario was not even
Rosario, assisted by counsel, pleaded not guilty to the crime
handcuffed at the time.
charged. The Regional Trial Court thereafter proceeded with the
trial.
At the Lovely Kahael pawnshop del Rosario pointed out the jewelry
that he had pawned. He also signed the pawnshop ticket in order
Culled from the records are the following:
that a wedding band and a diamond ring with the letter "E" could
be redeemed. At the pawnshop he was identified by Florencio
On September 26, 1992, at about 8:10 in the morning, Emelita Gamboa, the OIC/appraiser therein.
Paragua and a companion, a Delia Aquino, left their house at 1657
Balic-Balic, Sta. Rita, Olongapo City to go to the former’s stall in
Afterwards they proceeded to Magsaysay, Iba, Zambales to the
the public market. Raquel Lopez, the 11-year old niece of Paragua,
shop of Rogelio Adriano. They were not able to immediately recover
was left behind as she had no classes that day, a Saturday.
a bracelet and a 7-day ring that were sold to Adriano, a watch
repairer and a buyer/seller of second hand jewelry, as he had given
Notified of the news that their house was on fire, they went home. them to his son for safekeeping. However, Adriano assured the
police that he is going to voluntarily surrender the jewelry because
he learned of the girl who was found dead and of the robbery. His
Paragua saw that the sala set, their merchandise (stuffed toys that
son, Rogelio Adriano, Jr., returned the jewelry to the police some
they sell at the public market), and the cassette were burned. When
days later. Both Adrianos identified del Rosario as the person who
she entered the kitchen, she saw her niece lying on her stomach
sold them the jewelry. After the jewelry was recovered, the police
with a raincoat covering her head and her neck and arms tied with
called Emelita Paragua who positively identified the jewels as hers.
CATV wire. Parts of her hand and her thigh were burned. Raquel
Lopez was already dead when her aunt discovered her. The total
value of the burned properties was around Thirty Thousand Pesos Del Rosario was then brought to the Olongapo police station. A
(P30,000.00). Emelita Paragua likewise discovered that six pieces lawyer, Atty. Norberto dela Cruz, was called in to assist del Rosario.
of her jewelries were missing. During the custodial investigation, Atty. dela Cruz was present the
whole time. He informed del Rosario what was stated in the
waiver/confession. It was only when del Rosario said that he fully
SPO1 Ramon Fernandez received a report regarding the fire in
understood its contents that Atty. dela Cruz signed it as counsel.
Balic-Balic wherein a minor who was identified as Raquel Lopez was

614
SPO1 Fernandez brought the accused and Atty. dela Cruz to
Assistant City Prosecutor Martinez for subscription.
As to be expected, Donato del Rosario’s account of the day in
question, September 26, 1992, was different.
He alleged that on the morning of September 26, 1992, at around
7:00 A.M., he went to Subic, Zambales to buy containers for his
vinegar and Clorox business. He was with a certain Rancen Anonat,
the son of his would-be employer. They returned to Balic-balic at
around 9:00 A.M. and spent the night at the house of Anonat. The
following day, he went to the house of his common-law wife. On
the 28th of September, he went to Navotas and returned to Subic
the next day. On the 30th he stayed with the brother-in-law of his
common-law wife, Fernando Morales, a police officer in Subic.
It was Morales who informed del Rosario that he was a suspect in
the arson case. He was persuaded by Morales to place himself in
the custody of the police pending the investigation of the case, as
there was a threat to kill him by a certain Zapanta, a member of a
salvage team in Olongapo. He spent the night in the detention cell
in Subic.
On October 1, four policemen from Olongapo arrived. He was led
out of the detention cell to talk with the policemen. In the
investigation room, he was told that he would be taken to Olongapo
for further investigation. Morales told him to trust the police as they
are in the same corps. He was not handcuffed when he was taken
out to the vehicle which would take him to Olongapo.
When they arrived in the police station (Station A), he found his
aunt and some people in a room. When he sat down he was boxed
by an unknown man.
Thereafter, he was brought to Station B. He was forced to sign a
document, but not before being mauled with a rattan stick and a
chair. While he was being mauled he was forced to admit that he
committed the arson.
From the "mayores" in the jail, he found out that the document he
had signed was a waiver.
Del Rosario did not recall going to the prosecutor’s office to file or
submit his counter-affidavit. Neither did he go to the fiscal’s office
for preliminary investigation.
Based on the findings of Dr. Richard Patilano, medico-legal officer,
the cause of death of Raquel Lopez was asphyxia by strangulation
and multiple physical injuries. The victim was already dead when
the burning took place because the body did not show any
carbonization or black color.
On November 8, 1996, an order was issued stating, among other
things, that since the prosecution and the defense agreed that if
witness Raymund Tan (the father of the accused’s common-law
wife) will be presented to testify that his son-in-law (Fernando
Morales) accompanied del Rosario in surrendering to the police
department of Subic, Zambales, the testimony of the said witness
was dispensed with.2
On April 2, 1997, a decision was rendered by the trial court
convicting the accused and imposing the following penalty:
"WHEREFORE, the Court finds the accused Donato del
Rosario guilty beyond reasonable doubt of the crime of
Robbery with Homicide and hereby sentences him to the
maximum of Reclusion Perpetua or from THIRTY-THREE
(33) YEARS and FOUR (4) MONTHS and ONE (1) DAY to
FORTY YEARS, and to indemnify the heirs of Raquel Lopez
y Paragua the amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00) and to pay the costs.
615
"SO ORDERED."3
Hence, this appeal where accused-appellant assigns the following
errors allegedly committed by the trial court:
"I
"IT IS ERRONEOUS AND ILLOGICAL FOR THE TRIAL
COURT TO CONVICT APPELLANT WHEN THE ELEMENTAL
REQUISITES OF THE SPECIAL COMPLEX CRIME OF
ROBBERY WITH HOMICIDE ARE NOT PRESENT.
"II
"THE COURT A QUO IS LIKEWISE IN ERROR IN HANDING
DOWN A CONVICTION ON A CIRCUMSTANTIAL EVIDENCE
ABSENT ITS REQUISITE ELEMENTS.
"III
"THE LOWER COURT’S QUESTIONED DECISION
OVERLOOKED MATERIAL FACTS OF IMPORTANCE AND
SUBSTANCE WHICH IF CONSIDERED WOULD TILT THE
SCALE OF ‘LADY JUSTICE’ TO ACQUIT THE APPELLANT."
The appeal is unmeritorious.
Accused-appellant Donato del Rosario contends that it is essential
to prove the intent to rob and that the intent to rob must come first
before the killing transpired. He is of the impression that not all the
essential requisites of the crime of robbery with homicide were
proven.
We hold otherwise.
In the offense of robbery with homicide, a crime primarily classified
as one against property and not against persons, the prosecution
has to firmly establish the following elements: (a) the taking of
personal property with the use of violence or intimidation against a
person; (b) the property thus taken belongs to another; (c) the
taking is characterized by intent to gain or animus lucrandi; and (d)
on the occasion of the robbery or by reason thereof, the crime of
homicide, which is therein used in a generic sense, was committed.4
Animus lucrandi, or intent to gain, is an internal act which can be
established through the overt acts of the offender.5Although proof
as to motive for the crime is essential when the evidence of the
theft is circumstantial, the intent to gain or animus lucrandi is the
usual motive to be presumed from all furtive taking of useful
property appertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator. "xxx (T)he
intent to gain may be presumed from the proven unlawful taking."6
Intent to gain (animus lucrandi) is presumed to be alleged in an
information where it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things
subject of the robbery.7
In this case, it was apparent that the reason why accused-appellant
stole the jewelry of Emelita Paragua was because he intended to
gain by them. He had already admitted that he needed money to
marry his common-law wife.8
We take note of the places where the jewelry were recovered – a
pawnshop in Olongapo City, and a stall of a second hand jewelry
buyer in Iba.
Florencio Gamboa, the OIC/appraiser of the Lovely Kahael
Pawnshop, remembered giving the accused-appellant nine hundred
pesos (P900.00) for the two pieces of jewelry the latter had
pawned, while Rogelio Adriano admitted paying the accused the
amount of One Thousand Five Hundred Pesos (P1,500.00) for two
jewelries.
If gaining through unlawful means was farthest from the mind of
the accused, why then did he pawn and sell the jewelry he had
taken from Emelita Paragua for a total amount of two thousand four
hundred pesos (P2,400.00)?
The accused vehemently denies having robbed the house of Emelita
Paragua. But the testimonies of Gamboa and the Adrianos that it
was the accused who pawned and sold, respectively, the jewelry to
them shows that the accused had in his possession the stolen
jewelry. His failure to refute this must be taken against him.
It is a rule established by an abundance of jurisprudence that when
stolen property is found in the possession of one, not the owner,
without a satisfactory explanation of his possession, he will be
presumed to be the thief. This rule is in accordance with the
disputable presumption "that a person found in possession of a
thing taken in the doing of a recent wrongful act is the taker and
doer of the whole act."9
We conclude that accused-appellant went to the house of Emelita
Paragua because he intended to rob her. Lamentably, Paragua’s
niece, Raquel Lopez, was in the way and she had to be dealt with
in the direct manner possible. And the means resorted to by the
accused-appellant was to strangle her until her very last breath.
Raquel Lopez was killed on the occasion of the robbery because she
was the only one in the house at that time and the only witness to
the crime that accused-appellant committed.
Her autopsy report revealed that she was already dead before the
fire started, thus eliminating any inference that arson was
committed to finish her off. The arson was but a ruse to cover up
the theft.
It is immaterial whether the killing transpired before or after the
robbery. In the crime of robbery with homicide, the homicide may
precede robbery or may occur after robbery. What is essential is
that there is a nexus, an intimate connection between robbery and
the killing whether the latter be prior or subsequent to the former,
or whether both crimes be committed at the same time.10
Accused-appellant claims that his arrest was violative of his
constitutional rights and that all the evidence obtained thereat were
fruits of the poisonous tree and therefore inadmissible in any
proceeding of whatever nature and for any purpose. He alleged that
he was mauled to force him to sign a confession.
Contrary to accused-appellant’s allegation that he was arrested, we
find that he was not, and that he voluntarily surrendered to police
officer Fernando Morales of the Subic police.
In fact, his surrender was to be the gist of the testimony of
Raymund Tan, the father of his common-law wife, had he testified:
that his son-in-law, Fernando Morales, accompanied del Rosario
in surrendering to the police department of Subic,
Zambales.11 (Emphasis supplied) We do not see why Raymund Tan
would not say that Morales accompanied del Rosario in
surrendering to the police if it was not the truth.
We, therefore, find that accused-appellant surrendered to the
police authorities, confessed to the crime, volunteered the
information as to where he pawned and sold the jewelry, and went
with the Olongapo police willingly to the Lovely Kahael Pawnshop
and to the stall of the Adrianos and to the police station in
Olongapo. He admitted that he was not even handcuffed.
616
After his surrender and the recovery of the jewelry, accused-
appellant executed a waiver and confession in the vernacular, in
the presence of his aunt and some persons whom he cannot
identify.12 He was assisted by Atty. dela Cruz. The waiver reads:
"W A I V E R
"SA SINUMANG KINAUUKULAN:
"AKO, DONATO DEL ROSARIO Y LACORTE, NASA
HUSTONG GULANG AT NAKATIRA SA NR. 1663 Balic-
balic, Sta. Rita, Olongapo City ay nagsasaad ng mga
sumusunod:
"1. Na ako ay kusang sumuko sa Pulisya noong
ika-02 ng Oktubre 1992 dahil sa
nakokonsensiya ako sa nagawa kong pagpatay
kay Raquel Lopez at pagnanakaw at pagsunog
ko sa bahay nila;
"2. Na sa dahilang ito ay pinawawalang bisa ko
ang aking mga karapatan na nakapaloob sa Art.
125 ng RPC at ako ay pumapayag na
pansamantalang magpakulong at pumailalim sa
pangangalaga ng mga pulis at para na rin
makaharap ko ang nagrereklamo sa akin.
"3. Na nilagdaan ko ang pawawalang bisa ko sa
aking mga karapatan bilang patotoo sa
nilalaman nito.
(Sgd.) Donato del Rosario
Nagsasaad
Assisted by:
(Sgd.) ATTY. NORBERTO DELA CRUZ"13 (Italics supplied)
A confession to be admissible must be: (1) express and categorical;
(2) given voluntarily, and intelligently where the accused realizes
the legal significance of his act; (3) with assistance of competent
and independent counsel; (4) in writing, and in the language known
to and understood by the confessant; and (5) signed, or if the
confessant does not know how to read and write, thumbmarked by
him.14
As officers of the court, lawyers have a responsibility to assist in
the proper administration of justice.15 As an officer of the court, he
has in his favor the presumption of regularity in the performance of
his sworn duties and responsibilities.16 Absent any showing that
Atty. dela Cruz was remiss in his duty, the confession of the
accused-appellant is valid and binding upon him and is thus
admissible in evidence.
Assuming for the sake of argument that the extrajudicial admission
is not binding upon him, let it be stressed that he was positively
identified by Florencio Gamboa, the appraiser of Lovely Kahael
Pawnshop, and by Rogelio Adriano and his son, as the person who
pawned and sold the jewelry.
Both SPO1 Ramon Fernandez and Lt. Leonardo Esteban told the
court that the accused voluntarily led them to the place where he
pawned and sold the jewelry so that the jewelry could be recovered.
If he was not the culprit, how did he come to know where to lead
the policemen in order to retrieve the jewelry of Emelita Paragua?
Where there is nothing to indicate that a witness was actuated by
improper motives, his positive and categorical declarations on the
witness stand under solemn oath deserve full faith and credence.17
We find it incredible that he was mauled to force him to sign his
confession, let alone mauled.

Accused-appellant admitted knowing Fernando Morales of the Subic

police station. His relationship with the said police officer would
make other police officers be wary of him. They could not have
dared maul him as del Rosario would have sent word to Morales as
to the fate he had suffered in the hands of the Olongapo police.

The Olongapo police would have had a hands-off policy with regard
to the accused-appellant, as they would not have wanted any of
their friends or relatives to be mauled by the Subic police if they
ever get arrested there. Quid pro quo.

In addition, bare assertions of maltreatment by the police

authorities in extracting confessions from the accused are not
sufficient in view of the standing rule enunciated in cases of People
vs. Mada-I Santalani;18 People vs. Balane;19 and People vs.
Villanueva,20 "that where the defendants did not present evidence
of compulsion, or duress nor violence on their person; where they
failed to complain to the officer who administered their oaths;
where they did not institute any criminal or administrative action
against their alleged intimidators for maltreatment; where there
appeared to be no marks of violence on their bodies; and where
they did not have themselves examined by a reputable physician
to buttress their claim, all these were considered by this Court as
factors indicating voluntariness."21

The court a quo did not hand down a conviction based on

circumstantial evidence.

The accused-appellant voluntarily surrendered to the police and

admitted his guilt by way of the waiver/confession he had signed.
Circumstantial evidence had no place in this case.

Accused-appellant relied on alibi as a defense to belie the

accusation against him. However, nobody was presented to
corroborate his statements as to his whereabouts on the day when
the robbery, homicide, and arson took place, not even Rancen
Anonat who was his companion on that day and who was with him
when the crimes occurred. Already a weak defense, alibi becomes
even weaker by reason of the failure of the defense to present any
corroboration.22

In the absence of showing that the factual findings of the trial judge
were reached arbitrarily or without sufficient basis, these findings
are to be received with respect by, and indeed are binding on, the
Supreme Court.23

In every case, courts must specify the award for each item of
damages and make a finding thereon in the body of the
decision.24 Prevailing jurisprudence awards only P50,000.00 to the
heirs of the victim without need of any evidence other than the fact
of the commission of the crime. The trial court therefore erred in
awarding P100,000.00 as indemnity.

WHEREFORE, IN VIEW OF THE FOREGOING, the conviction of

appellant is AFFIRMED, with the modification that the P100,000.00
awarded as indemnity is reduced to P50,000.00 pursuant to the
prevailing jurisprudence.

SO ORDERED.

617
G.R. No. 79269 June 5, 1991
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. PROCORO J. DONATO, in his official capacity as
Presiding Judge, Regional Trial Court, Branch XII, Manila;
RODOLFO C. SALAS, alias Commander Bilog, respondents.
DAVIDE, JR., J.:
The People of the Philippines, through the Chief State Prosecutor of
the Department of Justice, the City Fiscal of Manila and the Judge
Advocate General, filed the instant petition for certiorari and
prohibition, with a prayer for restraining order/preliminary
injunction, to set aside the order of respondent Judge dated July 7,
1987 granting bail to the accused Rodolfo Salas alias "Commander
Bilog" in Criminal Case No. 86-48926 for Rebellion,1 and the
subsequent Order dated July 30, 1987 granting the motion for
reconsideration of 16 July 1987 by increasing the bail bond from
P30,000.00 to P50,000.00 but denying petitioner's supplemental
motion for reconsideration of July 17, 1987 which asked the court
to allow petitioner to present evidence in support of its prayer for a
reconsideration of the order of 7 July 1987.
The pivotal issues presented before Us are whether the right to bail
may, under certain circumstances, be denied to a person who is
charged with an otherwise bailable offense, and whether such right
may be waived.
The following are the antecedents of this petition:
In the original Information2 filed on 2 October 1986 in Criminal
Case No. 86-48926 of the Regional Trial Court of Manila, later
amended in an Amended Information3 which was filed on 24
October 1986, private respondent Rodolfo
Salas, alias "Commander Bilog", and his co-accused were charged
for the crime of rebellion under Article 134, in relation to Article
135, of the Revised Penal Code allegedly committed as follows:
That in or about 1968 and for some time before said year and
continuously thereafter until the present time, in the City of Manila
and elsewhere in the Philippines, the Communist Party of the
Philippines, its military arm, the New People's Army, its mass
infiltration network, the National Democratic Front with its other
subordinate organizations and fronts, have, under the direction and
control of said organizations' leaders, among whom are the
aforenamed accused, and with the aid, participation or support of
members and followers whose whereabouts and identities are still
unknown, risen publicly and taken arms throughout the country
against the Government of the Republic of the Philippines for the
purpose of overthrowing the present Government, the seat of which
is in the City of Manila, or of removing from the allegiance to that
government and its laws, the country's territory or part of it;
That from 1970 to the present, the above-named accused in their
capacities as leaders of the aforenamed organizations, in
conspiracy with, and in support of the cause of, the organizations
aforementioned, engaged themselves in war against the forces of
the government, destroying property or committing serious
violence, and other acts in the pursuit of their unlawful purpose,
such as . . .
(then follows the enumeration of specific acts committed before and
after February 1986).
At the time the Information was filed the private respondent and
his co-accused were in military custody following their arrest on 29
September 1986 at the Philippine General Hospital, Taft Ave.,
Manila; he had earlier escaped from military detention and a cash
reward of P250,000.00 was offered for his capture.
618
A day after the filing of the original information, or on 3 October
1986, a petition for habeas corpus for private respondent and his
co-accused was filed with this Court5 which, as shall hereafter be
discussed in detail, was dismissed in Our resolution of 16 October
1986 on the basis of the agreement of the parties under which
herein private respondent "will remain in legal custody and will face
trial before the court having custody over his person" and the
warrants for the arrest of his co-accused are deemed recalled and
they shall be immediately released but shall submit themselves to
the court having jurisdiction over their person.
On November 7, 1986 , private respondent filed with the court
below a Motion to Quash the Information alleging that: (a) the facts
alleged do not constitute an offense; (b) the Court has no
jurisdiction over the offense charged; (c) the Court has no
jurisdiction over the persons of the defendants; and (d) the criminal
action or liability has been extinguished,6 to which petitioner filed
an Opposition7 citing, among other grounds, the fact that in the
Joint Manifestation and Motion dated October 14, 1986, in G.R. No.
76009, private respondent categorically conceded that:
xxx xxx xxx
Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody
and face trial before the court having custody over his person.
In his Order of March 6, 1987,8 respondent Judge denied the
motion to quash.
Instead of asking for a reconsideration of said Order, private
respondent filed on 9 May 1987 a petition for bail,9which herein
petitioner opposed in an Opposition filed on 27 May 198710 on the
ground that since rebellion became a capital offense under the
provisions of P.D. Nos. 1996, 942 and 1834, which amended Article
135 of the Revised Penal Code, by imposing the penalty of reclusion
perpetua to death on those who promote, maintain, or head a
rebellion the accused is no longer entitled to bail as evidence of his
guilt is strong.
On 5 June 1987 the President issued Executive Order No. 187
repealing, among others, P.D. Nos. 1996, 942 and 1834 and
restoring to full force and effect Article 135 of the Revised Penal
Code as it existed before the amendatory decrees. Thus, the
original penalty for rebellion, prision mayor and a fine not to exceed
P20,000.00, was restored.
Executive Order No. 187 was published in the Official Gazette in its
June 15, 1987 issue (Vol. 83, No. 24) which was officially released
for circulation on June 26, 1987.
In his Order of 7 July 198711 respondent Judge, taking into
consideration Executive Order No. 187, granted private
respondent's petition for bail, fixed the bail bond at P30,000.00 and
imposed upon private respondent the additional condition that he
shall report to the court once every two (2) months within the first
ten (10) days of every period thereof. In granting the petition
respondent Judge stated:
. . . There is no more debate that with the effectivity of Executive
Order No. 187, the offense of rebellion, for which accused Rodolfo
Salas is herein charged, is now punishable with the penalty
of prision mayor and a fine not exceeding P20,000.00, which makes
it now bailable pursuant to Section 13, Article III, 1986 Constitution
and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike
the old rule, bail is now a matter of right in non-capital offenses
before final judgment. This is very evident upon a reading of
Section 3, Rule 114, aforementioned, in relation to Section 21,
same rule. In view, therefore, of the present circumstances in this
case, said accused-applicant is now entitled to bail as a matter of
right inasmuch as the crime of rebellion ceased to be a capital
offense.
As to the contention of herein petitioner that it would be dangerous
to grant bail to private respondent considering his stature in the
CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe
out all vestiges of our democracy and to replace it with their
ideology, and that his release would allow his return to his
organization to direct its armed struggle to topple the government
before whose courts he invokes his constitutional right to bail,
respondent Judge replied:
True, there now appears a clash between the accused's
constitutional right to bail in a non-capital offense, which right is
guaranteed in the Bill of Rights and, to quote again the prosecution,
"the existence of the government that bestows the right, the
paramount interest of the state." Suffice to state that the Bill of
Rights, one of which is the right to bail, is a "declaration of the
rights of the individual, civil, political and social and economic,
guaranteed by the Constitution against impairment or intrusion by
any form of governmental action. Emphasis is placed on the dignity
of man and the worth of individual. There is recognition of certain
inherent and inalienable rights of the individual, which the
government is prohibited from violating" (Quisumbing-Fernando,
Philippine Constitutional Law, 1984 Edition, p. 77). To this Court,
in case of such conflict as now pictured by the prosecution, the
same should be resolved in favor of the individual who, in the eyes
of the law, is alone in the assertion of his rights under the Bill of
Rights as against the State. Anyway, the government is that
powerful and strong, having the resources, manpower and the
wherewithals to fight those "who oppose, threathen (sic) and
destroy a just and orderly society and its existing civil and political
institutions." The prosecution's fear may or may not be founded
that the accused may later on jump bail and rejoin his comrades in
the field to sow further disorders and anarchy against the duly
constituted authorities. But, then, such a fear can not be a reason
to deny him bail. For the law is very explicit that when it comes to
bailable offenses an accused is entitled as a matter of light to
bail. Dura est lex sed lex.
In a motion to reconsider12 the above order filed on 16 July 1987,
petitioner asked the court to increase the bail from P30,000.00 to
P100,000.00 alleging therein that per Department of Justice
Circular No. 10 dated 3 July 1987, the bail for the, provisional
release of an accused should be in an amount computed at
P10,000.00 per year of imprisonment based on the medium penalty
imposable for the offense and explaining that it is recommending
P100,000.00 because the private respondent "had in the past
escaped from the custody of the military authorities and the offense
for which he is charged is not an ordinary crime, like murder,
homicide or robbery, where after the commission, the perpetrator
has achieved his end" and that "the rebellious acts are not
consummated until the well-organized plan to overthrow the
government through armed struggle and replace it with an alien
system based on a foreign ideology is attained."
On 17 July 1987, petitioner filed a supplemental motion for
reconsideration13 indirectly asking the court to deny bail to the
private respondent and to allow it to present evidence in support
thereof considering the "inevitable probability that the accused will
not comply with this main condition of his bail –– to appear in court
for trial," a conclusion it claims to be buttressed "by the following
facts which are widely known by the People of the Philippines and
which this Honorable Court may have judicial notice of:
1. The accused has evaded the authorities for thirteen years and
was an escapee from detention when arrested;
2. He was not arrested at his residence as he had no known
address;
3. He was using the false name "Manuel Mercado Castro" at the
time of his arrest and presented a Driver's License to substantiate
his false identity;
619
4. The address he gave "Panamitan, Kawit, Cavite," turned out to
be also a false address;
5. He and his companions were on board a private vehicle with a
declared owner whose identity and address were also found to be
false;
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a
reward of P250,000.00 was offered and paid for his arrest,
which "clearly indicate that the accused does not entertain the
slightest intention to appear in court for trial, if released." Petitioner
further argues that the accused, who is the Chairman of the
Communist Party of the Philippines and head of its military arm,
the NPA, together with his followers, are now engaged in an open
warfare and rebellion against this government and threatens the
existence of this very Court from which he now seeks provisional
release," and that while he is entitled to bail as a matter of right in
view of Executive Order No. 187 which restored the original penalty
for rebellion under Article 135 of the Revised Penal Code, yet, when
the interest of the State conflicts with that of an individual, that of
the former prevails for "the right of the State of self-preservation
is paramount to any of the rights of an individual enshrined in the
Bill of Rights of the Constitution." Petitioner further invokes
precedents in the United States of America holding "that there is
no absolute constitutional barrier to detention of potentially
dangerous resident aliens pending deportation proceedings,14 and
that an arrestee may be incarcerated until trial as he presents a
risk of flight;15 and sustaining a detention prior to trial of arrestee
charged with serious felonies who are found after an adversary
hearing to pose threat to the safety of individuals and to the
community which no condition of release can dispel.16
On 30 July 1987 respondent Judge handed down the
Order17 adverted to in the introductory portion of this decision the
dispositive portion of which reads:
WHEREFORE, in the light of the foregoing considerations, the Court
finds the "supplemental" motion for reconsideration to be without
merit and hereby denies it but finds the first motion for
reconsideration to be meritorious only insofar as the amount of bail
is concerned and hereby reconsiders its Order of July 7, 1987 only
to increase the amount of bail from P30,000.00 to P50,000.00,
subject to the approval of this Court, and with the additional
condition that accused Rodolfo Salas shall report to the court once
every two (2) months within the first ten (10) days of every period
thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66
SCRA 58).
In denying the supplemental motion for reconsideration the
respondent Judge took into account the "sudden turn-about" on the
part of the petitioner in that a day earlier it filed a motion for
reconsideration wherein it conceded the right of the private
respondent to bail but merely asked to increase the amount of bail;
observed that it is only a reiteration of arguments in its opposition
to the petition for bail of 25 May 1987; asserted that the American
precedents are not applicable since the cases involved deportation
of aliens and, moreover, the U.S. Federal Constitution does not
contain a proviso on the right of an accused to bail in bailable
offenses, but only an injunction against excessive bail; and quoted
the concurring opinion of the late Justice Pedro Tuason in the cases
of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-
4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil,
172.
Unable to agree with said Order, petitioner commenced this petition
submitting therein the following issues:
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF
HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE
PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S
SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER
TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE
RESPONDENT RODOLFO SALAS.
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF
HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT
RODOLFO SALAS.
in support of which petitioner argues that private respondent is
estopped from invoking his right to bail, having expressly waived it
in G.R. No. 76009 when he agreed to "remain in legal custody and
face trial before the court having custody of his person" in
consideration of the recall of the warrant of arrest for his co-
petitioners Josefina Cruz and Jose Concepcion; and the right to bail,
even in non-capital offenses, is not absolute when there is prima
facie evidence that the accused is a serious threat to the very
existence of the State, in which case the prosecution must be
allowed to present evidence for the denial of bail. Consequently,
respondent Judge acted with grave abuse of discretion when he did
not allow petitioner to present all the evidence it may desire to
support its prayer for the denial of bail and when he declared that
the State has forfeited its right to do so since during all the time
that the petition for bail was pending, it never manifested, much
less hinted, its intention to adduce such evidence. And that even if
release on bail may be allowed, respondent judge, in fixing the
amount of bail at P50,000.00 (originally P30,000.00 only), failed to
take into account the lengthy record of private respondents'
criminal background, the gravity of the pending charge, and the
likelihood of flight.18
In Our resolution of 11 August 198719 We required the respondents
to comment on the petition and issued a Temporary Restraining
Order ordering respondent Judge to cease and desist from
implementing his order of 30 July 1987 granting bail to private
respondent in the amount of P50,000.00.
In his Comment filed on 27 August 1987,20 private respondent asks
for the outright dismissal of the petition and immediate lifting of
the temporary restraining order on the following grounds:
I
RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL;
NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE
CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING
THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.
II
RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL
RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO
BAIL.
III
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE
(RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS
MANDATED BY THE CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987 DENYING PETITIONER
OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S
ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT
AND/OR HAD BEEN WAIVED.
V
620
THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS
CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL
BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.
We required the petitioner to reply to the comment of private
respondent.21 The reply was filed on 18 September 1987.22
In Our resolution of 15 October 198723 We gave due course to the
petition and required the parties to file simultaneously their
memoranda within twenty days from notice.
In their respective manifestations and motions dated 5
November24 and 23 November 198725 petitioner and private
respondents asked to be excused from filing their Memoranda and
that the petition and reply be considered as the Memorandum for
petitioner and the Comment as the Memorandum for private
respondent, which We granted in Our resolution of 19 November
198726 and 1 December 1987,27 respectively.
In Our resolution of 14 September 1989 We required the Solicitor
General to express his stand on the issues raised in this
petitions,28 which he complied with by filing his Manifestation on 30
May 199029 wherein he manifests that he supports the petition and
submits that the Order of respondent Judge of July 7, July 17 and
July 30, 1987 should be annulled and set aside asserting that
private respondent had waived the light to bail in view of the
agreement in G.R. No. 76009; that granting bail to him is accepting
wide-eyed his undertaking which he is sure to break; in determining
bail, the primary consideration is to insure the attendance of the
accused at the trial of the case against him which would be
frustrated by the "almost certainty that respondent Salas will lump
bail of whatever amount"; and application of the guidelines
provided for in Section 10 of Rule 114, 1985 Rules on Criminal
Procedure on the amount of bail dictates denial of bail to private
respondent. The Solicitor General likewise maintains that the right
of the petitioner to hearing on the application of private respondent
for bail cannot be denied by respondent Judge.
And now on the issues presented in this case.
I.
Unquestionably, at the time the original and the amended
Informations for rebellion and the application for bail were filed
before the court below the penalty imposable for the offense for
which the private respondent was charged was reclusion perpetua
to death. During the pendency of the application for bail Executive
Order No. 187 was issued by the President, by virtue of which the
penalty for rebellion as originally provided for in Article 135 of the
Revised Penal Code was restored. The restored law was the
governing law at the time the respondent court resolved the
petition for bail.
We agree with the respondent court that bail cannot be denied to
the private respondent for he is charged with the crime of rebellion
as defined in Article 134 of the Revised Penal Code to which is
attached the penalty of prision mayor and a fine not exceeding
P20,000.00.30 It is, therefore, a bailable offense under Section 13
of Article III of the 1987 Constitution which provides thus:
Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be prescribed by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required.
Section 3, Rule 114 of the Rules of Court, as amended, also
provides:
Bail, a matter of right: exception. — All persons in custody shall,
before final conviction, be entitled to bail as a matter of right,
except those charged with a capital offense or an offense which,
under the law at the time of its commission and at the time of the
application for bail, is punishable by reclusion perpetua, when
evidence of guilt is strong.
Therefore, before conviction bail is either a matter of right or of
discretion. It is a matter of right when the offense charged is
punishable by any penalty lower than reclusion perpetua.31 To that
extent the right is absolute.32
And so, in a similar case for rebellion, People vs. Hernandez, et
al., 99 Phil. 515, despite the fact that the accused was already
convicted, although erroneously, by the trial court for the complex
crime of rebellion with multiple murders, arsons and robberies, and
sentenced to life imprisonment, We granted bail in the amount of
P30,000.00 during the pendency of his appeal from such conviction.
To the vigorous stand of the People that We must deny bail to the
accused because the security of the State so requires, and because
the judgment of conviction appealed from indicates that the
evidence of guilt of Hernandez is strong, We held:
. . . Furthermore, individual freedom is too basic, too
transcendental and vital in a republican state, like ours, to be
derived upon mere general principles and abstract consideration of
public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section
(1) of the Bill of Rights, the framers of our Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15),
(16), (17), (18), and (21) of said section (1) to the protection of
several aspects of freedom.
The 1987 Constitution strengthens further the right to bail by
explicitly providing that it shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. This overturns
the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:
The suspension of the privilege of the writ of habeas corpus must,
indeed, carry with it the suspension of the right to bail, if the
government's campaign to suppress the rebellion is to be enhanced
and rendered effective. If the right to bail may be demanded during
the continuance of the rebellion, and those arrested, captured and
detained in the course thereof will be released, they would, without
the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end
the invasion, rebellion or insurrection.
Upon the other hand, if the offense charged is punishable
by reclusion perpetua bail becomes a matter of discretion. It shall
be denied if the evidence of guilt is strong. The court's discretion is
limited to determining whether or not evidence of guilt is
strong.33 But once it is determined that the evidence of guilt is not
strong, bail also becomes a matter of right. In Teehankee vs.
Director of Prisons, supra., We held:
The provision on bail in our Constitution is patterned after similar
provisions contained in the Constitution of the United States and
that of many states of the Union. And it is said that:
The Constitution of the United States and the constitution of the
many states provide that all persons shall be bailable by sufficient
sureties, except for capital offenses, where the proof is evident or
the presumption of guilt is great, and, under such provisions, bail
is a matter of right which no court or judge can properly refuse, in
all cases not embraced in the exceptions. Under such
provisions bail is a matter of right even in cases of capital offenses,
unless the proof of guilt is evident or the presumption thereof is
great!34
621
Accordingly, the prosecution does not have the right to present
evidence for the denial of bail in the instances where bail is a matter
of right. However, in the cases where the grant of bail is
discretionary, due process requires that the prosecution must be
given an opportunity to present, within a reasonable time, all the
evidence that it may desire to introduce before the court should
resolve the motion for bail.35
We agree, however, with petitioner that it was error for the
respondent court to fix the bond at P30,000.00, then later at
P50,000.00 without hearing the prosecution. The guidelines for the
fixing of the amount of bail provided for in Section 10 of Rule 114
of the Rules of Court are not matters left entirely to the discretion
of the court. As We stated in People vs. Dacudao, et al., 170 SCRA,
489, 495:
Certain guidelines in the fixing of a bailbond call for the
presentation of evidence and reasonable opportunity for the
prosecution to refute it. Among them are the nature and
circumstances of the crime, character and reputation of the
accused, the weight of the evidence against him, the probability of
the accused appearing at the trial, whether or not the accused is a
fugitive from justice, and whether or not the accused is under bond
in other case. . . .
In the instant case petitioner has sufficiently made out allegations
which necessitate a grant of an opportunity to be heard for the
purpose of determining the amount of bail, but not for the denial
thereof because aforesaid Section 10 of Rule 114 does not
authorize any court to deny bail.
II.
It must, however, be stressed that under the present state of the
law, rebellion is no longer punishable byprision mayor and fine not
exceeding P20,000.00. Republic Act No. 6968 approved on 24
October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article
135 of the Revised Penal Code by increasing the penalty for
rebellion such that, as amended, it now reads:
Article 135. Penalty for rebellion, insurrection or coup d'etat. –––
Any person who promotes, maintains, or heads a rebellion or
insurrection shall suffer the penalty of reclusion perpetua.
Any person merely participating or executing the commands of
others in a rebellion or insurrection shall suffer the penalty
of reclusion perpetua.
xxx xxx xxx
This amendatory law cannot apply to the private respondent for
acts allegedly committed prior to its effectivity. It is not favorable
to him. "Penal laws shall have a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal,
as this term is defined in Rule 5 of Article 62 of this Code, although
at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.36
III.
We agree with Petitioner that private respondent has, however,
waived his right to bail in G.R. No. 76009.
On 3 October 1986, or the day following the filing of the original
information in Criminal Case No. 86-48926 with the trial court, a
petition for habeas corpus for herein private respondent, and his
co-accused Josefina Cruz and Jose Concepcion, was filed with this
Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas
against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de
Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying,
among others, that the petition be given due course and a writ
of habeas corpusbe issued requiring respondents to produce the
bodies of herein private respondent and his co-accused before the
Court and explain by what authority they arrested and detained
them. The following proceedings took place thereafter in said case:
1. In a resolution of 7 October 1986 We issued a writ of habeas
corpus, required respondents to make a return of the writ on or
before the close of office hours on 13 October and set the petition
for hearing on 14 October 1986 at 10:00 o'clock in the morning.
2. On 13 October 1986 respondents, through the Office of the
Solicitor General, filed a Return To The Writ of Habeas
Corpus alleging therein that private respondent and Josefina
Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene
Zamora" were apprehended by the military on September 29, 1986
in the evening at the Philippine General Hospital Compound at Taft
Ave., Mangga being leaders or members of the Communist Party of
the Philippines, New People's Army and National Democratic Front,
organizations dedicated to the overthrow of the Government
through violent means, and having actually committed acts of
rebellion under Article 134 of the Revised Penal Code, as amended.
After their arrest they were forthwith charged with rebellion before
Branch XII of the Regional Trial Court, National Capital Region in
Criminal Case No. 86-48926 and on 3 October warrants for their
arrest were issued and respondents continue to detain them
because of the warrants of arrest and the pendency of the criminal
cases against them. Respondents further allege that, contrary to
the allegation in the petition, herein private respondent was not a
member of the NDF panel involved in peace negotiations with the
Government; neither is he and his companions Cruz and
Concepcion covered by any, safe conduct pass issued by competent
authorities.
3. At the hearing on 14 October 1986 the parties informed the Court
of certain agreements reached between them. We issued a
resolution reading as follows:
When this case was called for hearing this morning, Attorneys
Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo
Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua
appeared for the petitioners with Atty. Capulong arguing for the
petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva
appeared for the respondents, with Solicitor General Ordoñez
arguing for the respondents.
Petitioners' counsel, Atty. Romeo Capulong, manifested in open
Court that in conformity with the agreement reached with the
government, the petition for habeas corpus will be withdrawn with
detainee Rodolfo Salas to remain under custody, whereas his co-
detainees Josefina Cruz and Jose Milo Concepcion will be released
immediately.
Solicitor General Sedfrey Ordoñez, also in open Court, confirmed
the foregoing statement made by petitioners' counsel regarding the
withdrawal of the petition for habeas corpus, declaring that no
objection will be interposed to the immediate release of detainees
Josefina Cruz and Jose Milo Concepcion, and that no bond will be
required of them, but they will continue to face trial with their co-
accused, Rodolfo Salas; further, that they will not be rearrested on
the basis of the warrants issued by the trial court provided that they
manifest in open Court their willingness to subject themselves to
the jurisdiction of the Court and to appear in court when their
presence is required.
In addition, he stated that he is willing to confer with petitioners'
counsel today relative to the compromise agreement that they have
previously undertaken to submit.
Upon manifestation of petitioners' counsel, Atty. Romeo Capulong,
that on his oath as member of the Bar, the detainees Josefina Cruz
and Jose Milo Concepcion have agreed to subject themselves to the
622
jurisdiction of the trial court, the Court ordered their immediate
release.
Thereafter, the Court approved the foregoing manifestations and
statements and required both parties to SUBMIT to the Court their
compromise agreement by 4:00 o'clock this afternoon.
Teehankee, C.J., is on official leave.
4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties
submitted a Joint Manifestation and Motion duly signed by Atty.
Romeo Capulong, counsel for petitioners, and Solicitor General
Sedfrey Ordoñez, Assistant Solicitor General Romeo C. de la Cruz
and Trial Attorney Josue S. Villanueva, counsel for respondents,
which reads as follows:
COME NOW petitioners and the respondents, assisted by their
respective counsel, and to this Honorable Tribunal respectfully
manifest:
1. That in the discussion between Romeo Capulong, petitioners'
counsel, and Solicitor General Sedfrey A. Ordoñez on October 13,
1986 exploratory talks were conducted to find out how the majesty
of the law may be preserved and human considerations may be
called into play.
2. That in the conference both counsel agreed to the following
terms of agreement:
a. The petition for habeas corpus will be withdrawn by petitioners
and Josefina Cruz and Jose Milo Concepcion will be immediately
released but shall appear at the trial of the criminal case for
rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886
[should be 86-48926], Regional Trial Court, National Capital
Judicial Region) filed against them under their personal
recognizance.
b. Petitioner Rodolfo Salas will remain in legal custody and face trial
before the court having custody over his person.
c. The warrant of arrest for the persons of Josefina Cruz and Jose
Milo Concepcion is hereby deemed recalled in view of formal
manifestation before the Supreme Court that they will submit
themselves to the court having jurisdiction over their person.
3. That on October 14, the Solicitor General was able to obtain the
conformity of the Government to the foregoing terms which were
likewise accepted by petitioner (sic) and their counsel of record.
4. That the two counsel submitted their oral manifestation during
the hearing on October 14 and the present manifestation in
compliance with the resolution announced in court this morning.
WHEREFORE, it is prayed that the petition for habeas corpus be
dismissed.
5. On 16 October 1986 We issued the following resolution:
G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of
Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v.
Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de
Villa, Brig. Gen. Ramon Montaño and Col. Virgilio Saldajeno]
considering the Joint Manifestation and Motion dated October 14,
1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren
H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners
and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva
as counsel for respondents which states that they have entered into
an agreement whereby: [a] the petition for habeas corpus will be
withdrawn by petitioners, and Josefina Cruz and Jose Milo
Concepcion will be immediately released but shall appear at the
trial of the criminal case for rebellion [People vs. Rodolfo Salas, et
al., Criminal Case No. 4886, Regional Trial Court, National Capital
Judicial Region, Branch XII, Manila], filed against them, on their
personal recognizance; [b] petitioner Rodolfo Salas will remain in
legal custody and face trial before the court having custody over
his person; and [c] the warrant of arrest for the person of Josefina
Cruz and Jose Milo Concepcion is hereby deemed recalled in view
of the formal manifestation before this Court that they will submit
themselves to the court having jurisdiction over their person and in
view of the said agreement, the petition for habeas corpus be
dismissed, the Court Resolved to DISMISS the petition for habeas
corpusbut subject to the condition that petitioners' lead counsel,
Atty. Capulong, upon his oath as member of the Bar, shall abide by
his commitment to ensure the appearance of Josefina Cruz and Jose
Milo Concepcion at the trial of the criminal case for rebellion filed
against them. Teehankee, C.J., is on official leave.
It is the stand of the petitioner that private respondent, "in agreeing
to remain in legal custody even during the pendency of the trial of
his criminal case, [he] has expressly waived his right to
bail."37 Upon the other hand, private respondent asserts that this
claim is totally devoid of factual and legal basis, for in their petition
for habeas corpusthey precisely questioned the legality of the
arrest and the continued detention of Rodolfo Salas, Josefina Cruz
and Jose Milo Concepcion, which was not resolved by this Court or
by the compromise agreement of the parties but left open for
further determination in another proceeding. Moreover, the matter
of the right to bail was neither raised by either party nor resolved
by this Court, and the legal steps promptly taken by private
respondent after the agreement was reached, like the filing of the
motion to quash on 7 November 1986 and the petition for bail on
14 May 1987, were clear and positive assertions of his statutory
and constitutional rights to be granted not only provisional but final
and permanent liberty. Finally, private respondent maintains that
the term "legal custody" as used in the Joint Manifestation and
Motion simply means that private respondent agreed to continue to
be in the custody of the law or in custodia legis and nothing else; it
is not to be interpreted as waiver.
Interestingly, private respondent admits that:
"Custody" has been held to mean nothing less than actual
imprisonment. It is also defined as the detainer of a person by
virtue of a lawful authority, or the "care and possession of a thing
or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-
742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa.
306)
He further admits that, in the light of Section 1 of Rule 114 of the
Rules of Court and settled jurisprudence, the "constitutional right
to bail is subject to the limitation that the person applying for
admission to bail should be in the custody of the law or otherwise
deprived of his liberty."38
When the parties in G.R. No. 76009 stipulated that:
b. Petitioner Rodolfo Salas will remain in legal
custody and face trial before the court having custody
over his person.
they simply meant that Rodolfo Salas, herein respondent, will
remain in actual physical custody of the court, or in actual
confinement or detention, as distinguished from the stipulation
concerning his co-petitioners, who were to be released in view of
the recall of the warrants of arrest against them; they agreed,
however, "to submit themselves to the court having jurisdiction
over their persons." Note should be made of the deliberate care of
the parties in making a fine distinction between legal
custody and court having custody over the person in respect to
Rodolfo Salas and court having jurisdiction over the persons of his
co-accused. Such a fine distinction was precisely intended to
emphasize the agreement that Rodolfo Salas will not be released,
but should remain in custody. Had the parties intended otherwise,
623
or had this been unclear to private respondent and his counsel, they
should have insisted on the use of a clearer language. It must be
remembered that at the time the parties orally manifested before
this Court on 14 October 1986 the terms and conditions of their
agreement and prepared and signed the Joint Manifestation and
Motion, a warrant of arrest had already been issued by the trial
court against private respondent and his co-accused. The
stipulation that only the warrants of arrest for Josefina Cruz and
Jose Milo Concepcion shall be recalled and that only they shall be
released, further confirmed the agreement that herein petitioner
shall remain in custody of the law, or detention or confinement.
In defining bail as:
. . . the security given for the release of a person in custody of the
law, . . .
Section 1 of Rule 114 of the Revised Rules of Court admits no other
meaning or interpretation for the term "in custody of the law" than
that as above indicated. The purpose of bail is to relieve an accused
from imprisonment until his conviction and yet secure his
appearance at the trial.39 It presupposes that the person applying
for it should be in the custody of the law or otherwise deprived of
liberty.40
Consequently, having agreed in G.R. No. 76009 to remain in legal
custody, private respondent had unequivocably waived his right to
bail.
But, is such waiver valid?
Article 6 of the Civil Code expressly provides:
Art. 6. Rights may be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good customs, or prejudicial
to a third person with a right recognized by law.
Waiver is defined as "a voluntary and intentional relinquishment or
abandonment of a known existing legal right, advantage, benefit,
claim or privilege, which except for such waiver the party would
have enjoyed; the voluntary abandonment or surrender, by a
capable person, of a right known by him to exist, with the intent
that such right shall be surrendered and such person forever
deprived of its benefit; or such conduct as warrants an inference of
the relinquishment of such right; or the intentional doing of an act
inconsistent with claiming it."41
As to what rights and privileges may be waived, the authority is
settled:
. . . the doctrine of waiver extends to rights and privileges of any
character, and, since the word "waiver" covers every conceivable
right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of
which he is the owner or which belongs to him or to which he is
legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and
privileges rest in the individual, are intended for his sole benefit, do
not infringe on the rights of others, and further provided the waiver
of the right or privilege is not forbidden by law, and does not
contravene public policy; and the principle is recognized that
everyone has a right to waive, and agree to waive, the advantage
of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and
relinquished without infringing on any public right, and without
detriment to the community at large. . . .
Although the general rule is that any right or privilege conferred by
statute or guaranteed by constitution may be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would
be against public policy or morals and the public interest may be
waived.

While it has been stated generally that all personal rights conferred
by statute and guaranteed by constitutionmay be waived, it has
also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights
created to secure personal liberty are subjects of waiver.42

In Commonwealth vs. Petrillo,43 it was held:

Rights guaranteed to one accused of a crime fall naturally into two

classes: (a) those in which the state, as well as the accused, is
interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class
cannot be waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the

Constitution, and to consent to action which would be invalid if
taken against his will."44

This Court has recognized waivers of constitutional rights such as,

for example, the right against unreasonable searches and
seizures;45 the right to counsel and to remain silent;46 and the right
to be heard.47

Even the 1987 Constitution expressly recognizes a waiver of rights

guaranteed by its Bill of Rights.1âwphi1 Section 12(l) of Article III
thereof on the right to remain silent and to have a competent and
independent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the

presence of counsel.

This provision merely particularizes the form and manner of the

waiver; it, nevertheless, clearly suggests that the other rights may
be waived in some other form or manner provided such waiver will
not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional

rights which can be waived. It is a right which is personal to the
accused and whose waiver would not be contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of

discretion in granting bail to the private respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and

July 30, 1987 in Criminal Case No. 86-48926 entitled People of the
Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,
Josefina Cruz alias Mrs. Mercado, and Jose Milo
Concepcion alias Eugene Zamora, for Rebellion, are hereby
NULLIFIED and SET ASIDE.

SO ORDERED.

624
G.R. No. 115407 August 28, 1995
MIGUEL P. PADERANGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
REGALADO, J.:
The adverse decision in this case promulgated by respondent Court
of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well
as its resolution of April 26, 1994 denying the motion for
reconsideration thereof, are challenged by petitioner Miguel P.
Paderanga in this appeal by certiorari through a petition which
raises issues centering mainly on said petitioner's right to be
admitted to bail.
On January 28, 1990, petitioner was belatedly charged in an
amended information as a co-conspirator in the crime of multiple
murder in Criminal Case No. 86-39 of the Regional Trial Court,
Branch 18 of Cagayan de Oro City for the killing of members of the
Bucag family sometime in 1984 in Gingoog City of which petitioner
was the mayor at the time. The original information, filed on
October 6, 1986 with the Regional Trial Court of Gingoog City,1 had
initially indicted for multiple murder eight accused suspect, namely,
Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie
Torion, John Doe, Peter Doe And Richard Doe as the alleged
conspirators in the indiscriminate slaying of the spouses Romeo and
Juliet Bucag and their son, Romeo, Jr. However, only one of the
accused, Felipe Galarion, was apprehended, tried and eventually
convicted. Galarion later escaped from prison. The others have
remained at large up to the present. 2
In a bizarre twist of events, one Felizardo ("Ely") Roxas was
implicated in the crime. In an amended information dated October
6, 1988, he was charged as a co-accused therein. As herein
petitioner was his former employer and thus knew him well, Roxas
engaged the former's services as counsel in said case. Ironically, in
the course of the preliminary investigation therein, said accused, in
a signed affidavit dated March 30, 1989 but which he later retracted
on June 20, 1990, implicated petitioner as the supposed
mastermind behind the massacre of the Bucag family.3
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro
City from the case per his resolution of July 7, 1989, the
Department of Justice, at the instance of said prosecutor,
designated a replacement, State Prosecutor Henrick F. Gingoyon,
for purposes of both the preliminary investigation and prosecution
of Criminal Case No. 86-39. Pursuant to a resolution of the new
prosecutor dated September 6, 1989, petitioner was finally charged
as a co-conspirator in said criminal case in a second amended
information dated October 6, 1992. Petitioner assailed his inclusion
therein as a co-accused all the way to this Court in G.R. No. 96080
entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon.
Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy
and Rebecca B. Tan." In an en banc decision promulgated on April
19, 1991, the Court sustained the filing of the second amended
information against him.4
Under this backdrop, the trial of the base was all set to start with
the issuance of an arrest warrant for petitioner's apprehension but,
before it could be served on him, petitioner through counsel, filed
on October 28, 1992 a motion for admission to bail with the trial
court which set the same for hearing on November 5, 1992.
Petitioner duly furnished copies of the motion to State Prosecutor
Henrick F. Gingoyon, the Regional State Prosecutor's Office, and
the private prosecutor, Atty. Benjamin Guimong. On November 5,
1992, the trial court proceeded to hear the application for bail. Four
of petitioner's counsel appeared in court but only Assistant
Prosecutor Erlindo Abejo of the Regional State Prosecution's Office
appeared for the prosecution.5
625
As petitioner was then confined at the Cagayan Capitol College
General Hospital due to "acute costochondritis," his counsel
manifested that they were submitting custody over the person of
their client to the local chapter president of the integrated Bar of
the Philippines and that, for purposes of said hearing of his bail
application, he considered being in the custody of the law.
Prosecutor Abejo, on the other hand, informed the trial court that
in accordance with the directive of the chief of their office, Regional
State prosecutor Jesus Zozobrado, the prosecution was neither
supporting nor opposing the application for bail and that they were
submitting the same to the sound discretion of the trail judge.6
Upon further inquiries from the trial court, Prosecutor Abejo
announced that he was waiving any further presentation of
evidence. On that note and in a resolution dated November 5, 1992,
the trial court admitted petitioner to bail in the amount of
P200,000.00. The following day, November 6, 1992, petitioner,
apparently still weak but well enough to travel by then, managed
to personally appear before the clerk of court of the trial court and
posted bail in the amount thus fixed. He was thereafter arraigned
and in the trial that ensued, he also personally appeared and
attended all the scheduled court hearings of the case.7
The subsequent motion for reconsideration of said resolution filed
twenty (20) days later on November 26, 1992 by Prosecutor
Gingoyon who allegedly received his copy of the petition for
admission to bail on the day after the hearing, was denied by the
trial court in its omnibus order dated March 29, 1993. On October
1, 1993, or more than six (6) months later, Prosecutor Gingoyon
elevated the matter to respondent Court of Appeals through a
special civil action for certiorari. Thus were the resolution and the
order of the trial court granting bail to petitioner annulled on
November 24, 1993, in the decision now under review, on the
ground that they were tainted with grave abuse of discretion.8
Respondent court observed in its decision that at the time of
petitioner's application for bail, he was not yet "in the custody of
the law," apparently because he filed his motion for admission to
bail before he was actually arrested or had voluntarily surrendered.
It further noted that apart from the circumstance that petitioner
was charged with a crime punishable by reclusion perpetua, the
evidence of guilt was strong as borne out by the fact that no bail
was recommended by the prosecution, for which reasons it held
that the grant of bail was doubly improvident. Lastly, the
prosecution, according to respondent court, was not afforded an
opportunity to oppose petitioner's application for bail contrary to
the requirements of due process. Hence, this appeal.
Petitioner argues that, in accordance with the ruling of this Court
in Santiago vs. Vasquez etc., et al.,9 his filing of the aforesaid
application for bail with the trial court effectively conferred on the
latter jurisdiction over his person. In short, for all intents and
purposes, he was in the custody of the law. In petitioner's words,
the "invocation by the accused of the court's jurisdiction by filing a
pleading in court is sufficient to vest the court with jurisdiction over
the person of the accused and bring him within the custody of the
law."
Petitioner goes on to contend that the evidence on record negates
the existence of such strong evidence as would bar his provisional
release on bail. Furthermore, the prosecution, by reason of the
waiver by Prosecutor Abejo of any further presentation of evidence
to oppose the application for bail and whose representation in court
in behalf of the prosecution bound the latter, cannot legally assert
any claim to a denial of procedural due process. Finally, petitioner
points out that the special civil action for certiorari was filed in
respondent court after an unjustifiable length of time.
On the undisputed facts , the legal principles applicable and the
equities involved in this case, the Court finds for petitioner.
1. Section 1 of Rule 114, as amended, defines bail as the security
given for the release of a person in custody of the law, furnished
by him or a bondsman, conditioned upon his appearing before any In the case of herein petitioner, it may be conceded that he had
court as required under the conditions specified in said Rule. Its indeed filed his motion for admission to bail before he was actually
main purpose, then, is to relieve an accused from the rigors of and physically placed under arrest. He may, however, at that point
imprisonment until his conviction and yet secure his appearance at and in the factual ambience therefore, be considered as being
the trial.10 As bail is intended to obtain or secure one's provisional constructively and legally under custody. Thus in the likewise
liberty, the same cannot be posted before custody over him has peculiar circumstance which attended the filing of his bail
been acquired by the judicial authorities, either by his lawful arrest application with the trail court, for purposes of the hearing thereof
or voluntary surrender.11 As this Court has put it in a case "it would he should be deemed to have voluntarily submitted his person to
be incongruous to grant bail to one who is free."12 the custody of the law and, necessarily, to the jurisdiction of the
trial court which thereafter granted bail as prayed for. In fact, an
arrest is made either by actual restraint of the arrestee or
The rationale behind the rule is that it discourages and prevents
merely by his submission to the custody of the person making the
resort to the former pernicious practice whereby an accused could
arrest.19 The latter mode may be exemplified by the so-called
just send another in his stead to post his bail, without recognizing
"house arrest" or, in case of military offenders, by being "confined
the jurisdiction of the court by his personal appearance therein and
to quarters" or restricted to the military camp area.
compliance with the requirements therefor.13 Thus, in Feliciano
vs. Pasicolan, etc., et al.,14 where the petitioner who had been
charged with kidnapping with murder went into hiding without It should be stressed herein that petitioner, through his counsel,
surrendering himself, and shortly thereafter filed a motion asking emphatically made it known to the prosecution and to the trail court
the court to fix the amount of the bail bond for his release pending during the hearing for bail that he could not personally appear as
trial, the Supreme Court categorically pronounced that said he was then confined at the nearby Cagayan Capitol College
petitioner was not eligible for admission to bail. General Hospital for acute costochondritis, and could not then
obtain medical clearance to leave the hospital. The prosecution and
the trial court, notwithstanding their explicit knowledge of the
As a paramount requisite then, only those persons who have either
specific whereabouts of petitioner, never lifted a finger to have the
been arrested, detained, or other wise deprived of their freedom
arrest warrant duly served upon him. Certainly, it would have taken
will ever have occasion to seek the protective mantle extended by
but the slightest effort to place petitioner in the physical custody of
the right to bail. The person seeking his provisional release under
the authorities, since he was then incapacitated and under
the auspices of bail need not even wait for a formal complaint or
medication in a hospital bed just over a kilometer away, by simply
information to be filed against him as it is available to "all
ordering his confinement or placing him under guard.
persons"15 where the offense is bailable. The rule is, of course,
subject to the condition or limitation that the applicant is in the
custody of the law.16 The undeniable fact is that petitioner was by then in the
constructive custody of the law. Apparently, both the trial court and
the prosecutors agreed on that point since they never attempted to
On the other hand, a person is considered to be in the custody of
have him physically restrained. Through his lawyers, he expressly
the law (a) when he is arrested either by virtue of a warrant of
submitted to physical and legal control over his person, firstly, by
arrest issued pursuant to Section 6, Rule 112, or by warrantless
filing the application for bail with the trail court; secondly, by
arrest under Section 5, Rule 113 in relation to Section 7, Rule 112
furnishing true information of his actual whereabouts; and, more
of the revised Rules on Criminal Procedure, or (b) when he has
importantly, by unequivocally recognizing the jurisdiction of the
voluntarily submitted himself to the jurisdiction of the court by
said court. Moreover, when it came to his knowledge that a warrant
surrendering to the proper authorities.17 in this light, the
for his arrest had been issued, petitioner never made any attempt
ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et
or evinced any intent to evade the clutches of the law or concealed
al.,18 should be explained.
his whereabouts from the authorities since the day he was charged
in court, up to the submission application for bail, and until the day
In said case, the petitioner who was charged before the of the hearing thereof.
Sandiganbayan for violation of the Anti-Graft and Corrupt Practices
Act, filed through counsel what purported to be an "Urgent Ex-
At the hearing, his counsel offered proof of his actual confinement
parte Motion for Acceptance of Cash Bail Bond." Said petitioner was
at the hospital on account of an acute ailment, which facts were not
at the time confined in a hospital recuperating from serious physical
at all contested as they were easily verifiable. And, as a
injuries which she sustained in a major vehicular mishap.
manifestation of his good faith and of his actual recognition of the
Consequently, she expressly sought leave "that she be considered
authority of trial court, petitioner's counsel readily informed the
as having placed herself under the jurisdiction of (the
court that they were surrendering custody of petitioner to the
Sandiganbayan) for purposes of the required trial and other
president of the Integrated Bar of the Philippines, Misamis Oriental
proceedings." On the basis of said ex-parte motion and the peculiar
Chapter.20 In other words, the motion for admission to bail was filed
circumstances obtaining in that incident, the Sandiganbayan
not for the purpose or in the manner of the former practice which
authorized petitioner to post a cash bail bond for her provisional
the law proscribes for the being derogatory of the authority and
liberty without need of her personal appearance in view of her
jurisdiction of the courts, as what had happened in Feliciano. There
physical incapacity and as a matter of humane consideration.
was here no intent or strategy employed to obtain bail in
absentia and thereby be able to avoid arrest should the application
When the Sandiganbayan later issued a hold departure order therefore be denied.
against her, she question the jurisdiction of that court over her
person in a recourse before this Court, on the ground that "she
2. Section 13, Article III of the Constitution lays down the rule that
neither been arrested nor has she voluntarily surrendered, aside
before conviction, all indictees shall be allowed bail, except only
from the fact that she has not validly posted bail since she never
those charged with offenses punishable by reclusion perpetua when
personally appeared before said court" In rejecting her arguments,
the evidence of guilt is strong. In pursuance thereof, Section 4 of
the Court held that she was clearly estopped from assailing the
Rule 114, as amended, now provides that all persons in custody
jurisdiction of the Sandiganbayan for by her own representations in
shall, before conviction by a regional trial court of an offense not
the urgent ex parte motion for bail she had earlier recognized such
punishable by death, reclusion perpetua or life imprisonment, be
jurisdiction. Furthermore, by actually posting a cash bail was
admitted to bail as a matter of right. The right to bail, which may
accepted by the court, she had effectively submitted to its
be waived considering its personal nature21 and which, to repeat,
jurisdiction over her person. Nonetheless, on the matter of bail, the
arises from the time one is placed in the custody of the law, springs
Court took pains to reiterate that the same cannot be posted before
from the presumption of innocence accorded every accused upon
custody of the accused has been acquired by the judicial authorities
whom should not be inflicted incarceration at the outset since after
either by his arrest or voluntary surrender.
trial he would be entitled to acquittal, unless his guilt be established
beyond reasonable doubt.22

626
Thus, the general rule is that prior to conviction by the regional trial
court of a criminal offense, an accused is entitled to be released on
bail as a matter of right, the present exceptions thereto being the
instances where the accused is charged with a capital offense or an
offense punishable by reclusion perpetua or life
imprisonment23 and the evidence of guilt is strong. Under said
general rule, upon proper application for admission to bail, the
court having custody of the accused should, as a matter of course,
grant the same after a hearing conducted to specifically determine
the conditions of the bail in accordance with Section 6 (now, Section
2) of Rule 114. On the other hand, as the grant of bail becomes a
matter of judicial discretion on the part of the court under the
exceptions to the rule, a hearing, mandatory in nature and which
should be summary or otherwise in the discretion of the court,24 is
required with the participation of both the defense and a duly
notified representative of the prosecution, this time to ascertain
whether or not the evidence of guilt is strong for the provisional
liberty of the applicant.25 Of course, the burden of proof is on the
prosecution to show that the evidence meets the required
quantum.26
Where such a hearing is set upon proper motion or petition, the
prosecution must be give an opportunity to present, within a
reasonable time, all the evidence that it may want to introduce
before the court may resolve the application, since it is equally
entitled as the accused to due process.27 If the prosecution is
denied this opportunity, there would be a denial of procedural due
process, as a consequence of which the court's order in respect of
the motion or petition is void.28 At the hearing, the petitioner can
rightfully cross-examine the witnesses presented by the
prosecution and introduce his own evidence in rebuttal.29 When,
eventually, the court issues an order either granting or refusing
bail, the same should contain a summary of the evidence for the
prosecution, followed by its conclusion as to whether or not the
evidence of guilt is strong.30 The court, though, cannot rely on mere
affidavits or recitals of their contents, if timely objected to, for these
represent only hearsay evidence, and thus are insufficient to
establish the quantum of evidence that the law requires.31
In this appeal, the prosecution assails what it considers to be a
violation of procedural due process when the court below allowed
Assistant Prosecutor Erlindo Abejo of the Regional State
Prosecutor's Office to appear in behalf of the prosecution, instead
of State Prosecutor Henrick P. Gingoyon who is claimed to be the
sole government prosecutor expressly authorized to handle the
case and who received his copy of the motion only on the day after
the hearing had been conducted. Accordingly, the prosecution now
insists that Prosecutor Abejo had no authority at all to waive the
presentation of any further evidence in opposition to the application
for bail and to submit the matter to the sound discretion of the trial
court. In addition, they argue that the prosecution was not afforded
"reasonable time" to oppose that application for bail.
We disagree. Firstly, it is undisputed that the Office of the Regional
State Prosecutor acted as the collaborating counsel, with State
Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the
basis of an authority from then Chief State Prosecutor Fernando de
Leon which was sent through radio message on July 10, 1992 and
duly received by the Office of the Regional State Prosecutor on the
same date. This authorization, which was to be continuing until and
unless it was expressly withdrawn, was later confirmed and then
withdrawn only on July 12, 1993 by then Secretary of Justice
Franklin M. Drilon. This was done after one Rebecca Bucag-tan
questioned the authority of Regional State Prosecutor Jesus
Zozobrado and State Prosecutor II Erlindo Abejo to enter their
appearance as collaborating government prosecutors in said
criminal case.32 It was in fact by virtue of this arrangement that the
same Prosecutor Zozobrado and Prosecutor Perseverando Arana
entered their appearance as collaborating prosecutor in the
previous hearing in said case.33 Hence, on the strength of said
authority and of its receipt of the notice of the hearing for bail, the
Regional State Prosecutor's Office, through Prosecutor Abejo, could
validly represent the prosecution in the hearing held on November
5, 1992.
627
Secondly, although it is now claimed that Prosecutor Abejo was
allegedly not familiar with the case, he nonetheless was explicitly
instructed about the position of the Regional State Prosecutor's
Office on the matter. Prosecutor Zozobrado, whose office received
its copy of the motion on the very day when it was sent, that is,
October 28, 1992, duly instructed Prosecutor Abejo to manifest to
the court that the prosecution was neither supporting nor opposing
the application for bail and that they were submitting the matter to
its sound discretion. Obviously, what this meant was that the
prosecution, at that particular posture of the case, was waiving the
presentation of any countervailing evidence. When the court a
quo sought to ascertain whether or not that was the real import of
the submission by Prosecutor Abejo, the latter readily answered in
the affirmative.
The following exchanges bear this out:
PROSECUTOR ERLINDO ABEJO:
I was informed to appear in this case just now Your Honor.
COURT:
Where is your Chief of Office? Your office received a copy of
the motion as early as October 28. There is an element of
urgency here.
PROSECUTOR ABEJO:
I am not aware of that, Your Honor, I was only informed
just now. The one assigned here is State Prosecutor
Perseverando Arena, Jr. who unfortunately is in the hospital
attending to his sick son. I do not know about this but
before I came I received an instruction from our Chief to
relay to this court the stand of the office regarding the
motion to admit bail. That office is neither supporting nor
opposing it and we are submitting to the sound discretion
of the Honorable Court.
COURT:
Place that manifestation on record. For the record, Fiscal
Abejo, would you like to formally enter your appearance in
this matter?
PROSECUTOR ABEJO:
Yes, Your Honor. For the government, the Regional State
Prosecutor's Office represented by State Prosecutor Erlindo
Abejo.
COURT:
By that manifestation do you want the Court to understand
that in effect, at least, the prosecution is dispensing with
the presentation of evidence to show that the guilt of the
accused is strong, the denial . . .
PROSECUTOR ABEJO:
I am amenable to that manifestation, Your Honor.
COURT:
Final inquiry. Is the Prosecution willing to submit the
incident covered by this particular motion for resolution by
this court?
PROSECUTOR ABEJO:
Yes, Your Honor.
COURT:
Without presenting any further evidence?
PROSECUTOR ABEJO:
Yes, Your Honor.34
It is further evident from the foregoing that the prosecution, on the
instructions of Regional State prosecutor Zozobrado, had no
intention at all to oppose the motion for bail and this should be so
notwithstanding the statement that they were "neither supporting
nor opposing" the motion. What is of significance is the
manifestation that the prosecution was "submitting (the motion) to
the sound discretion of the Honorable Court." By that, it could not
be any clearer. The prosecution was dispensing with the
introduction of evidence en contra and this it did at the proper
forum and stage of the proceedings, that is, during the mandatory
hearing for bail and after the trial court had fully satisfied itself that
such was the position of the prosecution.
3. In Herras Teehankee vs. Director of Prisons,35 it was stressed
that where the trial court has reasons to believe that the
prosecutor's attitude of not opposing the application for bail is not
justified, as when he is evidently committing a gross error or a
dereliction of duty, the court, in the interest of Justice, must inquire
from the prosecutor concerned as the nature of his evidence to
determine whether or not it is strong. And, in the very recent
administrative matter Re: First Indorsement Dated July 21, 1992
of Hon. Fernando de Leon,Chief State Prosecutor, Department of
Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge
Deodoro Sison, 36 the Court, citing Tucay vs. Domagas,
etc., 37 held that where the prosecutor interposes no objection to
the motion of the accused, the trial court should nevertheless set
the application for hearing and from there diligently ascertain from
the prosecution whether the latter is really not contesting the bail
application.

No irregularity, in the context of procedural due process, could

therefore be attributed to the trial court here as regards its order
granting bail to petitioner. A review of the transcript of the
stenographic notes pertinent to its resolution of November 5, 1992
and the omnibus order of March 29, 1993 abundantly reveals
scrupulous adherence to procedural rules. As summarized in its
aforementioned order, the lower court exhausted all means to
convince itself of the propriety of the waiver of evidence on the part
of the prosecution. Moreover, the omnibus order contained the
requisite summary of the evidence of both the prosecution and the
defense, and only after sifting through them did the court conclude
that petitioner could be provisionally released on bail.
Parenthetically, there is no showing that, since then and up to the
present, petitioner has ever committed any violation of the
conditions of his bail.

As to the contention that the prosecutor was not given the

opportunity to present its evidence within a reasonable period of
time, we hold otherwise. The records indicate that the Regional
State Prosecutor's Office duly received its copy of the application
for bail on the very same day that the it was filed with the trial
court on October 28, 1992. Counted from said date up to the day
of the hearing on November 5, 1992, the prosecution had more
than one (1) week to muster such evidence as it would have wanted
to adduce in that hearing in opposition to the motion. Certainly,
under the circumstances, that period was more than reasonable.
The fact that Prosecutor Gingoyon received his copy of the
application only on November 6, 1992 is beside the point for, as
already established, the Office of the Regional State Prosecutor was
authorized to appear for the People.

4. What finally militates against the cause of the prosecutor is the

indubitably unreasonable period of time that elapsed before it
questioned before the respondent court the resolution and the
omnibus order of the trial court through a special civil action
for certiorari. The Solicitor General submits that the delay of more
than six (6) months, or one hundred eighty-four (184) days to be
exact, was reasonable due to the attendant difficulties which
characterized the prosecution of the criminal case against
petitioner. But then, the certiorariproceeding was initiated before
the respondent court long after trial on the merits of the case had
ensued in the court below with the active participation of
prosecution lawyers, including Prosecutor Gingoyon. At any rate,
the definitive rule now in that the special civil action
for certiorari should not be instituted beyond a period of the three
months,38 the same to be reckoned by taking into account the
duration of time that had expired from the commission of the acts
complained to annul the same.39

ACCORDINGLY, the judgment of respondent Court of Appeals in CA-

G.R. SP No. 32233, promulgated on November 24, 1993, annulling
the resolution dated November 5, 1992 and the omnibus order
dated March 29, 1993 of the Regional Trial Court of Cagayan de
Oro City, as well as said respondent court's resolution of April 26,
1994 denying the motion for reconsideration of said judgment, are
hereby REVERSED and SET ASIDE. The aforesaid resolution and
omnibus order of the Regional Trail Court granting bail to petitioner
Miguel P. Paderanga are hereby REINSTATED.

SO ORDERED.

628
G.R. No. 127126 September 17, 1998 In Crim. Case No. 754-M-96, for Acts of Lasciviousness:

People of the Philippines, plaintiff-appellee, The undersigned upon the prior sworn complaint of Myrna Calma y
vs. Ignacio in behalf of her Four (4) year old daughter Irene Calma, the
Rodrigo Calma y Sacdalan, accused-appellant. offended party, accuses RODRIGO CALMA Y SACDALAN of ACTS OF
LASCIVIOUSNESS defined and penalized under Art. 336 of the
Revised Penal Code, in relation to Section 5(b), Art. III of Republic
PER CURIAM:
Act [No.] 7610, committed as follows:

This Court repeats: men who rape children, worse, their own
That in between the period May 1995 to March 8, 1996, in Marilao,
daughters, are "filthier than the slime where they belong. Whatever
Bulacan and with the jurisdiction of this Honorable Court, the
punishment is imposed on them can never expiate their loathsome
above-named accused, by taking advantage of his natural
offense, for which forgiveness itself from a mortal court, at least,
daughter, Four (4) year old Irene Calma, did then and there wilfully,
would be a sin".1
unlawfully and feloniously with lewd designs, touched the private
parts of the above-stated offended party.
There is no fathoming the deluge of rape cases, often involving
children, that has swamped the Court. But this particular case is by
CONTRARY TO LAW.6
far, the most bizarre. Not just one but three young girls have been
left precipitately stigmatized by the bestial violence perpetrated on
them by their own father. The very person who should have Accused-appellant pleaded not guilty to the charges.
protected them with his life, destroyed their. What strikes this Court
as extremely perverse is that he spared no one, not even his
On May 31, 1996, the three cases were jointly tried upon motion of
daughter of the tenderest age of 5.
the prosecution.

Accused-appellant Rodrigo Calma was charged with two (2) counts

The evidence of the prosecution established that between May 1995
of Rape under Art. 335 of the Revised Penal Code, as amended by
and March 8, 1996, accused-appellant forced himself on his two
Sec. 11 of Republic Act No. 7659, and one (1) count of Acts of
daughters, namely, Annalyn and Roselyn, born on July 11,
Lasciviousness under Art. 336 of the Revised Penal Code in relation
1981 7 and December 28, 1985 8, respectively. During the same
to Sec. 5(b) of Art. III of Republic Act No. 7610 2, before the
period, accused-appellant inserted his finger into sex organ of his
Regional Trial Court, 3rd Judicial Region, Malolos Bulacan, Branch
youngest daughter, Irene, born on June 29, 1991 9.
143 in the following three (3) separate Informations:

At ages 15, 11 and 5 years, Annalyn, Roselyn, and Irene,

In Crim. Case No. 752-M-96, for Rape:
respectively, testified thus:

The undersigned upon the prior sworn complaint of the offended

Annalyn on the witness stand:
party, fourteen (14) year old minor Annalyn Calma, accuses
RODRIGO CALMA Y SACDALAN of Rape, defined and penalized
under Art. 335 of the Revised Penal Code as amended by Sec. 11 A. One day by the middle of May, 1995, my father arrived
of Republic Act [No.] 7659, committed as follows: home drank [sic] and he forced me to undress myself while
carrying an icepick.
xxx xxx xxx
That in between the period May 1995 to March 8, 1996, in Marilao,
Q. But can you tell us the time?
Bulacan and within the jurisdiction of this Honorable Court, the
A. It was already night time, madam.
above-named accused, being the biological father of the offended
xxx xxx xxx
party Annalyn Calma, with lewd designs and by means of threat
Q. And where did this incident happened [sic]?
and violence by arming himself with bladed weapon, did then and
A. In our bedroom, madam.
there willfully, unlawfully and feloniously lie and had sexual
xxx xxx xxx
intercourse with private complainant Annalyn Calma against her will
Q. When you said that your father removed your panty and
and consent.
your short[s] and your father was only wearing his short[s]
at that time, what did your father do to you if any?
CONTRARY TO LAW.4 A. He asked me to lie down on the bed, madam.
Q. And when you laid down on the bed, what happened
next?
In Crim. Case No. 752-M-96, also for Rape:
A. He approached me pointing the icepick towards me, sir.
xxx xxx xxx
The undersigned upon the prior sworn complaint of the offended Q. And then when he approached you, what happened next?
party, ten (10) year old minor Roselyn Calma, assisted by her A. He started to kiss me on the different parts of my body,
mother Myrna Calma y Ignacio, accuses RODRIGO CALMA Y madam.
SACDALAN of Rape, defined and penalized under Art. 335 of the Q. Specifically what part of your body did he kiss first?
Revised Penal Code as amended by Sec. 11 of Republic Act [No.] A. My vagina, madam.
7659, committed as follows: xxx xxx xxx
Q. Did you not resist or cry or ask him the reason why he
was doing that to you?
That in between the period may 1995 to March 8, 1996, in Marilao, A. I asked him, madam.
Bulacan and within the jurisdiction of this Honorable Court, the Q. And what was his answer?
above-named accused, being the biological father of the offended A. None, madam.
party Roselyn Calma, with lewd designs, did then and there xxx xxx xxx
willfully, unlawfully and feloniously lie and had sexual intercourse Q. And after your father kissed your whole body, your
with private complainant Roselyn Calma against her will and breast and including your vagina that was all he did to you?
consent. A. On that particular day, yes madam on that day only.
xxx xxx xxx
CONTRARY TO LAW.5 Q. After that first incident, you did not tell anyone or
anybody your mother and brother and your sister what your
father did to you?

629
A. I did not, sir. Q. After playing [with] his sex organ, what happened next?
Q. Why? A. Something came out of his penis, madam.
A. Because at the very start, he had already threatened us Q. Would you kindly describe to us what you saw coming
and he told us that he would kill our mother in our presence, our from his penis?
madam. A. A sticky substance, madam.
Q. And after that first incident in the middle of May, 1995, Q. Why do you know that this sticky substance came out
this act was never repeated again? from the penis of your father?
A. It was repeated again, madam. A. Because he was showing that to me, madam. He even
Q. How many times? told me that substance was the one introducing [sic] baby,
A. For many more times, madam. madam.
xxx xxx xxx xxx xxx xxx
A. After a week time [sic] or something like that in as much Q. And after this first sexual abuse committed by your
as he seem[s] not to be satisfied he inserted his sex organ father on you, you never relayed this incident to anyone?
[in]to mine, madam. A. Yes, madam I did not.
Q. Can you recall the first time your father inserted his penis Q. Why was this?
inside your private parts? A. As I have stated a while ago, he was threatening us. He
A. No more, madam. was threatening me and he further stated that will include
Q. You can not recall the exact date? my mother and even my other sister and brother, madam.
A. I can no longer recall, madam. Q. You stated earlier that this sexual abuse was repeatedly
xxx xxx xxx done by your father?
Q. Now, when you were left alone with your father, do you A. Yes, madam.
recall what happened if any? xxx xxx xxx
A. Yes, madam. A. When my mother was not yet around whenever he likes
xxx xxx xxx it.
A. First he took [sic] our main door and then he ordered me xxx xxx xxx
to get inside our bedroom, madam. Q. During the time that you have or you were repeated
Q. After he instructed you to get inside your bedroom, what raped or your father have [sic] sexual intercourse with you,
happened next? will you kindly tell us the positions your father did?
A. He ordered me or instructed me to undress myself, A. Sometimes I am lying on my back. Sometimes I am on
madam. my side that is all.
Q. Did you actually remove your clothes? xxx xxx xxx
A. Yes, madam because I was frightened then. SP BALAWAG:
Q. How about your father, what happened to his clothes Q. In all those instances that you were repeatedly abused
then? by your father notwithstanding the return of your mother,
A. He likewise removed his short pants, madam. you never told anyone what was [sic] your father was doing
Q. So, both of you were totally naked? to you?
A. Yes, madam. A. I did not, madam.
Q. After you were both totally naked, did [sic] you kindly Q. Why?
tell us what happened next? A. Because I am afraid of his threat and I love very much
A. He instructed me to lie down on [the] bed, madam. my family.
Q. After you laid down on the [the] bed, what happened xxx xxx xxx
next? Q. Now, madam witness, do you recall the last time when
A. He placed himself on top of me, madam. your father sexually abused you?
Q. And when he laid on top of you, do you recall what A. Yes, madam.
happened next? Q. When was that?
A. Yes, madam. A. March 3, Sunday in the morning 1996, madam.
Q. What was that? Q. In other words, madam witness since the middle of May,
A. He was making a push and pull motion, madam. 1995, up to March 3, 1996, this sexual abuse committed by
xxx xxx xxx your father lasted up to one (1) year?
Q. When you say that he was likewise making this push up A. Yes, madam. 10
motion, did you notice anything else?
A. He inserted his penis on [sic] my vagina, madam.
Roselyn on the witness stand:
Q. How do you know it was his penis that was inserted on
[sic] your vagina?
A. Because I saw it, madam. Q. Can you tell us, Madam Witness, what grade were you in
Q. When he inserted his penis inside your vagina, what did and how old were you at the time you were first sexually
you feel? molested by your father?
A. I cried because it was painful, madam. A. I was then in Grade 2 and I was only 8 years old then,
Q. Did you resist or fought [sic] back to [sic] what your madam.
father was doing to you? xxx xxx xxx
xxx xxx xxx Q. In other words, Madam Witness, the first time you were
SP BALAWAG: sexually abused by your father, you were left alone with
Q. What did you do if any? him?
A. I cried and cried and when I was struggling to free A. Yes, madam.
myself, he pointed again the icepick on [sic] me, madam. Q. And you also mentioned earlier that you were first
Q. And can you tell us for how long did this push up sexually abused by your father in your living room, can you
movements [which] your father was doing while his penis tell us who brought you there in the living room?
was inserted in your vagina lasted [sic].? A. It was he, madam.
A. For less than five (5) minutes, madam. xxx xxx xxx
Q. After that what happened? Q. Now, when your father or the accused led you in the
A. He stood up and seated himself on top of the bed, living room of your house alone and you were alone with
madam. him, can you recall what happened, if any?
Q. What did you see when your father suddenly stood [sic] A. First, he instructed me to remove my shorts but I didn't
up and sit on top of the bed? want and what he did is that he pointed an ice pick to [sic]
xxx xxx xxx me, madam.
A. He took hold and played with his sex organ or penis, xxx xxx xxx
madam.

630
Q. When you refused at first to remove your shorts and then and then allowed me to lie down on my back, then raised
the accused pointed an ice pick at you, can you recall what my right leg and then he inserted his sex organ to [six] my
happened next? sex organ, madam.
A. It was he who removed my shorts, madam. xxx xxx xxx
Q. In what particular part of pour body was the ice pick Q. When was that, the last time you were sexually abused
pointed? by your father?
A. On my neck, madam. . . . A. March 8, 1996, madam, because after that date it was
Q. After your father removed your shorts, what happened then the birthday of my father.
next, if any? Q In other words, the birthday of the accused is March 9.
A. He brought out his sex organ from his short, he lifted up A. Yes, madam.
one of my feet and make [sic] me lie down on my back and xxx xxx xxx
he placed himself on top of me, madam. A. I was about to place my bag inside that bedroom and I
Q. What part of your leg was raised at that time? have to change clothes while my father followed me inside.
A. My right leg, madam. Q. Madam Witness, where did you came [sic] from on that
Q. In other words, while you were lying down, the accused particular date?
lifted your right leg and then he went on top of you? A. I came from school, madam.
A. Yes, madam. Q. When your father followed you inside the bedroom, can
xxx xxx xxx you recall what happened next, if any?
PROS. BALAUAG: A. Yes, madam.
Q. What happened next after your father laid on top of you? Q. What happened?
A. He was actually making a push and full [sic] motions [sic] A. He instructed me to lie down on my back and instructed
(kinakabayo). me further to remove my shorts, madam.
xxx xxx xxx Q. Did you obey his orders?
PROS. BALAUAG: A. No madam, I did not.
Q. Now, after your father went on top of you, what did he Q. What happened next when you refused to removed [sic]
do next, if any and made [sic] that "kinakabayo"? your shorts?
A. He pulled out his sex organ and then played with it, A. He pointed an ice pick to [sic] me, madam.
madam. Q. The same ice pick he pointed at you on the first occasion
Q. Where did he pulled [sic] out his sex organ? you were sexually abused by your father?
A. From my sex organ, madam. A. No madam, it is different.
Q. In other words, madam Witness, your father inserted his Q. How can you tell that it was a different ice pick that he
sex organ or penis in your vagina? used?
A. Yes, madam. A. I said that it was different ice pick because the first ice
Q. Can you tell what you felt at that time while the penis of pick he used on me before, I kept it away, so what he did,
your father was inserted in your vagina? he made another ice pick which is quite longer.
A. It was painful, madam. Q. Did you actually see your father making that particular
Q. Did you not tell him about it? ice pick?
A. I told him about that, madam. A. Yes, madam.
Q. What was his responds [sic]? xxx xxx xxx
A. None, madam. Q. Now, after your father placed some oil in [sic] his penis,
xxx xxx xxx what did he do next, if he did anything?
Q. After your father pulled out his sex organ or his penis, A. He lifted again one of my legs and then placed himself
can you recall what happened next or what did he do with on top of me, madam.
it, if any? Q. In other words, madam witness, the third time you were
A. After my father had pulled out his sex organ from my sex sexually abused by your father, he lifted again your right
organ he played with it and something whity [sic] substance legs [sic] but this time he put some oil in [sic] it before he
came out, madam. inserted it in your vagina?
Q. Did you actually see that whity [sic] substance coming A. Yes, madam.
out from your father's penis? Q. And after inserting his penis inside your vagina, what
A. Yes, madam, because he was then in front of me. happened next, if any?
xxx xxx xxx A. He removed his sex organ or pulled out his sex organ and
Q. Now, did you not tell anyone of what had happened to then played with it and sticky substance came out of it. 11
you?
A. I did not, madam.
Irene on the witness stand:
Q. Why not, madam witness?
A. I am afraid, madam, because he told me that if I do so,
he would kill my mother. PROS. AGARAN:
Q. Now, the second time you were sexually abused by your Q. Irene, kilala mo ba si Mama?
father, can you tell us where did it happen? A. Opo.
A. In the same hut, madam. xxx xxx xxx
Q. In what particular portion of the house? Q. Si Papa kilala mo rin?
A. Also, in the living room, madam. A. Opo.
xxx xxx xxx xxx xxx xxx
Q. Now, you mentioned earlier that the second time you Q. Irene, mahal mo ba si Mama?
were sexually abused by your father, it happened in the A. Opo.
living room, can you tell us what your father did to you at Q. Eh, si Papa, mahal mo rin ba?
that time? A. Hindi na po.
A. The same as in the first occasion, he instructed me to Q. Bakit hindi mo na mahal si Papa?
remove my clothes, madam. A. Kasi po ang kamay niya ay pinapasok sa penching ko.
Q. In other words, madam witness, what you are trying to Q. Pakituro mo nga kung ano 'yong sinasabi mong
say to us right now was that the second time you were penching?
sexually abused by your father, it was like the first incident AT THIS JUNCTURE, THE WITNESS IS CRYING AND
when you were sexually abused? WITNESS [IS] TOUCHING HER SEX ORGAN.
A. Yes, madam. Q. Ano 'yong kamay na ipinapasok doon sa penching mo,
xxx xxx xxx sabihin mo nga anak kung ano 'yon? Nasaan 'yong daliring
A. The same as in the first occasion when I was abused by sinasabi mo, ituro mo kung anong daliri and ipinasok ng
my father. He first brought out his sex organ from his shorts iyong Papa sa penching mo?

631
WITNESS TOUCHING HER RIGHT AND MIDDLE FINGER. COURT:
Q. Nasaan kayo pagka pinapasok ni Papa yong daliri niya sa Q. Di ba natutulog ka nuong ilagay ang kamay niya sa
penching mo? penching mo?
A. Nasa kama po. A. No, your Honor.
Q. Anong suot mo pag nasa kama kayo tapos pinapasok ni Q. Anong naramdaman mo nong ilagay iyon?
Papa 'yong daliri niya sa penching mo? Nasaan ka? A. Painful, your Honor.
A. Nasa amin po. Q. Ano pa?
Q. Saan 'yon amin na sinasabi mo, Irene saan anak? No answer.
PROS. AGARAN: The witness is now crying, your Honor. ATTY. JOSON: No further question, your Honor. 12
ATTY. JOSON: Scratching only, your Honor.
PROS. AGARAN:
Accused-appellant denied his daughters' accusations. He charged
Q. Pag ipinapasok ang daliri ni Papa sa penching mo, ano
that Myrna Ignacio, his common law wife and mother of his
ang nararamdaman mo?
children, coached his daughters to lie. He claimed that he had
A. Masakit po.
seriously hurt her in the past, twice by electrocution on suspicion
Q. Maliban sa pagpasok ng daliri ng Papa sa penching mo,
of infidelity. He also accused her of using the criminal cases to force
ano pa ang ginagawa sa iyo?
him to waive his ownership rights over their house and lot in her
A. No answer.
favor.
PROS. AGARAN: She refused to answer, your Honor, but
she kept on crying.
COURT: Seeking to help accused-appellant, his mother, Catalina Calma, his
Q. Bakit ka umiiyak? Hindi naman kami nagagalit sa iyo. neighbor, Gloria Ceraus, his mother's laundrywoman, Eugenia
PROS. AGARAN: Lontoc, his sister-in-law, Lolita Calma, family friend, Rosalie
Q. Meron ka bang pinagkuwentuhan ng ginawa ng Papa mo Ofrecio, and a confidante of Annalyn, Larry Laurora, attested to the
ang pagpasok sa penching mo? close family ties of the Calmas. They testified that accused-
A. Wala po. appellant's daughters, especially Annalyn, showed much affection
Q. Kahit kanino? towards their father. Catalina Calma, Lolita Calma and Larry
A. Wala po. Laurora even insinuated that Annalyn was in love with her father
Q. Kay Mama, hindi mo kinuwento kay Mama? and was seducing him.
A. Hindi po.
Q. Bakit hindi mo kinuwento kay Mama?
A. Eh, wala siya. On September 25, 1996, the trial court convicted the accused on
Q. Nasaan si Mama noon nuong ipasok niya ang daliri niya all three (3) charges. It ruled:
sa penching mo?
A. Kina Lola po. The defense's position that the charges were fabricated and
Q. Hindi na ha bumalik si Mama sa bahay? that the private complainants were coached is untenable. A
A. Bumalik po. teenage unmarried lass would not ordinarily file a rape
Q. Eh, bakit hindi mo ikinuwento? complaint against anybody much less her own father if it
A. Gabi na po. were not true (People v. Matrimonio, 215 SCRA 613). A
Q. Ibig mong sabihin pag gabi na si Mama natutulog ka na? daughter, especially one of tender age would not accuse her
A. Opo. own father of this heinous crime had she really not have
Q. Wala kang talagang pinagkwentuhan? been aggrieved (People v. Dusohan, 227 SCRA 87; People
A. Wala po. v. Magpayo, 226 SCRA 13). In their childhood innocence
Q. Hindi mo ikinuwento maski na kina Ate? and naivete they could not have concocted the story of how
A. Kay Roselyn po. they were wantonly ravished and sexually assaulted
Q. Ano ang sinabi mo kay Ate Roselyn? (see People v. Magallanes, 218 SCRA 109; People v. Joya,
PROS. AGARAN: The witness refused to answer, your 227 SCRA 9).
Honor. That will be all for the witness, your Honor.
COURT:
Q. Ituro mo nga kung sino ang nagpapasok ng daliri sa Neither is there no [sic] merit in the accused's argument
penching mo? that the abuses if true could not have been endured by the
A. WITNESS POINTING TO A PERSON IN THE COURTROOM private complainants for almost a year without telling
WHO STOOD UP AND GAVE HIS NAME AS RODRIGO CALMA. anyone. It is not uncommon for young girls to conceal for
PROS. AGARAN: sometime the assaults on their virtue because of the rapist's
Q. Sino siya? threats on their lives. Delay or vaccilation in making a
A. Papa ko. criminal accusation does not necessarily impair the
COURT: Cross? credibility of the witness if such delay is satisfactorily
ATTY. JOSON: Yes, your Honor. With the kind permission of explained (People v. Errojo, 229 SCRA 49 . . .). The fact
this Honorable Court. that there was no outcry from the offended party is
COURT: Proceed. immaterial in the rape of a child below twelve years old
ATTY. JOSON: (People v. Ylarde, 224 SCRA 405). Also, the precise date
Q. Irene, is it not a fact that your mother and your father when complainant was sexually abused is not an essential
frequently quarrel with each other? element of the offense (People v. Ocampo, 206 SCRA 223).
A. Yes, sir.
Q. And in fact, because of that frequent trouble your mother The defense also argues that there was no external
was angry [sic] to your father? evidence of the use of force. In the case of People v.
A. Yes, sir. Coloma it has held that "previous passivity of a daughter in
Q. And because your mother was angry she told you to allowing her father to have carnal knowledge of her for eight
testify against your father? (8) years is not a valid defense against unconsented
PROS. AGARAN: Your Honor, at her age she is incompetent intercourse. The kind of force or violence, threat or
to testify on those matters. intimidation as between father and daughter need not be of
COURT: Let the witness answer. such nature and degree as would be required in other cases,
A. No, sir. for the father in this particular instance exercises strong
Q. Considering that your mother did not instructed [sic] you moral and physical influence and control over his daughter
to file action against your father, my question to you Irene (People v. Coloma, 222 SCRA 255). In a rape case
is, who is the person who told you that something wrong committed by a father against his own daughter the father's
was done to you by your father? moral ascendancy and influence over the latter substitutes
A. None, sir.

632
 for violence and intimidation (People v. Matrimonio, 215
SCRA 613).
It was held in People v. Ignacio, 233 SCRA 1, that courts
may take judicial notice of the interesting fact that among
poor couples with big families living in small quarters,
copulation does not seem to be a problem despite the
presence of other persons around them. Rape can be
committed even if the victim is sleeping on the same bed
with others (People v. Villorente, 210 SCRA 647). Thus it
was not impossible for the accused to commit the abuses
on his daughters simply because they were sleeping on the
same bed.
It was also argues [sic] that the extent of the injuries
sustained by the two younger complainants are not enough
to support the charges. Suffice it to say that healed
lacerations in the hymen do not negate rape; neither does
the absence of spermatozoa in the vaginal canal (People v.
Liquiran, 228 SCRA 62; People v. Magallanes, 218 SCRA
109). Even if there were no lacerations of the hymen this
fact alone does not necessarily mean that there was no
rape. The merest introduction of the male organ into the
labia of the pudendum is sufficient. The mere penetration
of the penis by the entry thereof into the labia majora of
the female organ even without rupture of the hymen
suffices to warrant a conviction for rape (People v. Sanchez,
250 SCRA 14). Annalyn and Roselyn testified that there was
penetration and that it was very painful. The pain could be
nothing but the result of penile penetration, sufficient to
constitute rape (People v. Sanchez, supra).
The mother of the accused, as well as his sister-in-law imply
(sic) that an amorous relationship could exist between the
accused and Annalyn, and such is one of the theories of the
defense. However, where the accused adopted the theory
that the victim consented to his sexual desires, the sexual
act itself is deemed admitted except as to consent [but] . .
. as contrary evidence showed the victim sustained physical
injuries consistent with her claim that she was sexually
abused without her consent (People v. Saluna, 226 SCRA
447). The charge that the complainant in a rape case has
loose morals must be supported by strong evidence (People
v. Coloma, 222 SCRA 255). Such a claim could only lead
this court to believe that the defense would try to exculpate
the accused by blaming the victim, which this court is not
inclined to do.
The accused imputes false motive in the filing of these
case[s] on the part of Myrna. It is unnatural for a parent to
use her offspring as an engine of malice, especially if it will
subject a daughter to embarrassment and even stigma
(People v. Ching, 240 SCRA 267; People v. Ignacio, 233
SCRA 1). No mother would stoop so low as to subject her
daughter to physical hardship and shame concommittant to
a rape prosecution just to assuage her own hurt feelings
(People v. Rejano, 237 SCRA 627).
A violation of a woman's chastity becomes doubly repulsive
where the outrage is perpetrated on one's own flesh and
blood, for the culprit is reduced to a level lower than a beast
(People v. Dusohan, 227 SCRA 87). Because of the acts of
the accused the private complainants have been denied
their right to grow up and discover the wonders of
womanhood in the natural way, and an award of moral
indemnification in the amount of P50,000.00 is proper
(People v. Escoto, 229 SCRA 430; People v. Mejorada, 224
SCRA 857), as well as an award of exemplary damages as
correction for the public good (People v. Matrimonio, 215
SCRA 613), in the amount of P25,000.00. 13
Accordingly, accused-appellant was meted out the following
penalties:
633
WHEREFORE, premises considered, judgment is hereby
rendered:
In Criminal Case No. 752-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY
beyond reasonable doubt of the crime of rape and
sentencing him to the penalty of death to be carried out in
accordance with law; and to indemnify Annalyn Calma in
the amount of P50,000.00, to pay her the amount of
P50,000.00 as moral damages, the amount of P25,000.00
as exemplary damages;
In Criminal Case No. 753-M-96
Finding accused Rodrigo Calma y Sacdalan GUILTY beyond
reasonable doubt of the crime of rape and sentencing him
to the penalty of death to be carried out in accordance with
law; and to indemnify Roselyn Calma in the amount of
P50,000.00, to pay her the amount of P50,000.00 as moral
damages and the amount of P25,000.00 as exemplary
damages; and
In Criminal Case No. 754-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY
beyond reasonable doubt of the [crime of] acts of
lasciviousness under Article 336 of the Revised Penal Code
and R.A. [No.] 7610, and sentencing him to the penalty
of reclusion temporal in its medium period, to indemnify
Irene Calma in the amount of P50,000.00, to pay
P50,000.00 as moral damages and P25,000.00 as
exemplary damages.
SO ORDERED. 14
On automatic appeal because of its twin sentences imposing the
death penalty, the foregoing decision of the trial court is now before
us.
In his Brief dated October 21, 1997, accused-appellant interposed
a single error, thus:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED
OF THE CRIMES CHARGED DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILTY BEYOND
REASONABLE DOUBT. 15
We find on record overwhelming evidence of the guilty of accused
appellant. The testimony of the three victims, his own daughters,
withstood the test of cross-examination. They spontaneously,
clearly and credibly spoke of the details of their defilement. The
defense did not dispute the time, the place, the manner and the
frequency of the sexual abuses. Neither did the defense show that
their hymenal lacerations, as found by Dr. Jesusa Nieves Vergara,
the medico-legal officer who examined them, were the results of
other causes. Dr. Vergara testified, thus:
xxx xxx xxx
Q. At around 11:30 in the morning of that day, do you recall
having physically examine [sic] the person[s] of Roselyn
Calma, Irene Calma and Annalyn Calma?
A. Yes, sir.
xxx xxx xxx
SP BALAUAG:
Q. You stated that you conducted a physical examination on
the person of Annalyn Calma on May 3, 1996, is [sic] the
findings of your examination was [sic] also reduced in
writing?
A. Yes, madam.
 Q. I am showing to you medico legal report No. M-647-96,
what relation has this medico legal report to the one you
stated you executed?
A. This is the original medico legal report No. M-647-96
which I prepared.
xxx xxx xxx
Q. We are marking the same as our Exhibit K, and that the
signature of Dr. Vergara be bracketed and be marked as
Exhibit K-1. . . . You stated in your genital findings that "on
separating the same disclosed an elastic, fleshy-type hymen
with shallow healed lacerations at 3 and 5 o'clock and deep
healed lacerations at 8 and 9 o'clock positions." [I]n
layman's language, can you tell us wat this [sic] genital
findings means [sic].
A. The numbers here, 3, 5, 8 and 9 o'clock will just indicate
the positions of the lacerations. So, since the hymen is
circular in appearance, it is being correlated to the face of
the watch when we say the laceration is 3:00 o'clock, it
means that the laceration or it occupies the number in the
clock. The same goes with the 5, 8 and 9 o'clock. By shallow
laceration, it means that it does not exceed more than 50%
or more than half of the width of the hymen and by deep
laceration, it exceed [sic] more than 50 % or more than 1/2
of the width of the hymen and by healed laceration, it
means that the edges of the laceration has already healed
showing reaction like swelling, redness or contusion on the
area.
xxx xxx xxx
SP Balauag:
Q. You concluded in your conclusion that the subject is in
non-virgin state physically. Can you kindly explain how you
were able to conclude that the subject is in a non-virgin
state?
A. The findings in the hymen is [sic] a healing laceration.
xxx xxx xxx
Q. Dr., can you tell us what might have cause [sic] this
At most, during cross-examination, the defense got Dr. Vergara
laceration in the hymen you found on [sic] Annalyn Calma?
to concede that hymenal lacerations can also be caused by a
A. Forcible entry of a hard blunt object.
fall on a sharp object. The defense, however, failed to establish
xxx xxx xxx
that the three victims had, on specific occasions, met an
COURT:
accident of that nature. Thus goes the cross-examination of Dr.
xxx xxx xxx
Vergara:
Q. What was the cause of your conclusion or findings that
the victim is no longer a virgin?
A. Forcible entry of a hard blunt object can be caused by an
insertion of a male sex organ.
SP BALAUAG:
Q. On May 6, 1996, did you examine the person of Rosallyn
[sic] Calma?
A. Yes, madam.
Q. After conducting your physical examination was [sic]
your findings reduced into writing?
A. Yes, madam.
xxx xxx xxx
Q. [Let] the signature over the typewritten name Jesusa
Vergara be bracketed and be marked as our Exhibit L-1 . .
. . You stated in your findings that on the genital [area]:
There is absence of pubic hair. Labia majora are full, convex
and gaping with th [sic] pinkish labia minora presenting in
between. On separating the same disclosed an elastic, fleshy-
type hymen with shallow healed lacerations at 3 and 9 o'clock
positions. External vaginal origice [sic] admits tip of the
examiner's smallest finger." Now in layman's language, Doctor,
can you tell us what this [sic] gental findings means [sic]?
A. That I found two (2) lacerations on the hymen, positions
3 and 9 o'clock positions. [B]oth lacerations were shallow
healed lacerations.
Q. Now, Doctor, there appears a conclusion [where] you
said [in the] medico legal report that the subject is in a non-
virgin state physically, can you tell us the basis of your
conclusion?
A. The basis for saying this is my findings on the hymen
revealing the healed lacerations.
Q. This laceration you found on the hymen [of] the private
complainant Rosallyn [sic] Calma, can yoy [sic] inform this
634
Honorable Court what or [sic] might have cause [sic] the
said lacerations?
A. Forcible entry of a hard blunt object which can be a form
of an erected sexual organ.
Q. On May 3, 1996, do you remember having physically
examine [sic] the person of Irene Calma?
A. Yes, madam.
Q. Was [sic] your findings after you physically examine [sic]
the person of Irene Calma reduced into writing?
A. Yes, madam.
xxx xxx xxx
Q. I forgot, we are marking the findings of the doctor as
Exhibit L-3, your Honor for purposes of identification we are
marking the medico legal report 649-M-96 as our Exhibit M
and the signature over the typewritten name Dr. Jesusa
Vergara be bracketed and he marked as our Exhibit M-1. .
. . Doctor, in this [sic] findings regarding the four year old
private complainant Irene Calma you stated in your findings
that there are lacerations found in the hymen of the four
(4) year old child, can you tell us in layman's language what
this means?
A. In this particular case, there were two (2) lacerations
noted on the hymen of the victim. [B]oth were healing
lacerations one shallow healing laceration 3 o'clock and
another, deep laceration position 3 o'clock.
Q. Can you tell us the basis of your conclusion that the
victim Irene Calma is also [in] a non-virgin state?
A. My basis for saying this [is] the findings on the hymen
revealing lacerations.
Q. In this particular case where the victim or the private
complainant is four years old, will you tell us what might
have caused the laceration you found in the hymen of Irene
Calma?
A. Forcible entry of a hard blunt object. 16
ATTY. JOSON:
Q. Madam witness, . . . you stated that that [sic] . . . the
healed laceration might be caused by a blunt instrument or
an erected adult penis. Now, madam witness, aside from
adult male penis, what other factor that might caused [sic]
lacerations in the hymen which falls under the category of
a hard blund [sic] object?
A. Insertion of the finger provided that diameter of the
finger is greater than the diameter of the opening of the
vagina, [sir].
Q. Can it be the finger of the subject person herself?
I withdraw that.
xxx xxx xxx
Q. In fact, aside from the erected male penis, finger, what
are the other factors or things that might cause laceration
in the hymen?
A. A fall against a hard sharp object, sir.
Q. Doctor, is it possible considering the young age of the
subject person by strenuous exercise and activities may the
same caused [sic] laceration of the hymen?
A. No, sir there has to be a direct trauma on the hymen, sir.
Q. How about riding on a bicycle?
A. No, sir.
Q. Doctor, you also stated healing laceration, from the time
of the examination what is the probable time or what is the
period of time wherein you can still consider a laceration a
healing laceration?
A. Less than seven (7) days per examination, sir.
Q. To be considered a healed laceration, the examination
must be conducted within seven days?
A. More than seven (7) days.
Q. Healing laceration?
A. For healed laceration, it should be more than seven (7)
days, for heal[ing] lacerations less than seven (7) days.
 xxx xxx xxx
COURT:
Q. Doctor, can you determine Dr. when was the actual date
wherein the victim lost their virginity?
A. For the exact date, I can not determine but I can only
approximate, but my findings are compatible per their
allegations that the incident happened a year [before my
examination]. 17
Accused-appellant next submits that the evidence of the
prosecution should not be given credence by this Court because
of their inherent improbabilities. He pleads this Court to
consider his daughters to have lied under oath because:
1. Annalyn and Roselyn both testified that he always
withdrew his penis and ejaculated outside them, but
such self-control and willpower is impossible for a man
who lusted even for his own daughters.18
2. His daughters did not behave like rape victims. They
continued to be close and affectionate towards him,
hugging and kissing him in public. They always slept
together in one room. They continuously attended their
classes and even got high grades. 19
3. His daughters should have died or suffered some
serious physical injury if it were true that his penis
forcefully penetrated their vaginas. 20
All these, accused-appellant submits, cast reasonable doubt on his
guilt.
The Law presumes that an accused is innocent and this
presumption stands until it is overturned by competent and credible
proof. It is incumbent upon the prosecution to establish the guilt of
the defendant beyond a reasonable doubt. The reasonable doubt
should necessarily pertain to the facts constitutive of the crime
charged. 21Discrepancies that touch on significant facts are crucial
on the guilt or innocence of an accused. 22 Conversely,
inconsistencies and discrepancies in details which are irrelevant to
the elements of the crime are not grounds for acquittal. 23 The rule
of falsus in uno, falsus in omnibus has never been regarded as
positive, mandatory, or inflexible. 24
Surmises and conjecture have no place in a judicial and are
especially anathema in a criminal prosecution. 25 In a criminal
prosecution a reasonable doubt can be created by many things but
to be sufficient to prevent a conviction, it must arise from the
evidence adduced or from the lack of evidence, and can arise from
no other legitimate source. 26While no test definitively determines
which is and which is not considered reasonable doubt under the
law, it must necessarily involve genuine and irreconcilable
contradictions based, not on suppositional thinking, but on the hard
facts constituting the elements of the crime. It is not mere possible
doubt, because everything relating to human affairs is open to
some possible or imaginary doubt. 27 It should not be vague,
speculative or whimsical, but intelligent, reasonable and impartial
and based on a careful examination and conscious consideration of
all the evidence in the case. 28 A reasonable doubt is not such doubt
as any man may start by questioning for the sake of a doubt; nor
a doubt suggested or surmised without foundation in facts or
testimony, for it is possible always to question any conclusion
derived from testimony, but such questioning is not what is
reasonable doubt. Rather, it is that state of the case which, after
the entire comparison and consideration of all the evidence leaves
the mind of the judge in that condition that he cannot say that he
feels an abiding conviction to a moral certainly of the truth of the
charge. 29 Absolute certainty is not demanded by the law to convict
of any criminal charge but moral certainty is required, and this
certainty must attend every proposition of proof requisite to
constitute the offense. 30 Absolute, mathematical, or metaphysical
certainty is not essential, and besides, in judicial investigation, it is
wholly unattainable. Moral certainty is all that can be required.
635
In the instant case, accused-appellant exhorts this court to consider
the lack of internal ejaculation and the absence of any injury on the
part of the victims, which were testified to by the prosecution
witnesses themselves, and their continuous show of affection
towards their father, as testified to by the defense witnesses, as
indicia of reasonable doubt warranting his acquittal. They lied,
argues accused-appellant, because their testimony is improbable,
if not impossible, and their affectionate behavior towards him, their
alleged rapist, was a contradiction in terms.
We agree with the Solicitor General that these contentions are
conjectural. On the charge that the narrations of the victims were
fabricated for the purpose of evading the questions as why no
spermatozoa was found in them during the physical examinations
and why they did not get pregnant, the Solicitor General correctly
noted that Annalyn and Roselyn were last sexually abused by
appellant in March 1996 while the physical examination were
conducted on May 3, 1996 or almost two (2) months thereafter.
Hence, even assuming that he ejaculated while they had
intercourse, the spermatozoa would have been washed off by May
3, 1996, not to mention that the lifetime of spermatozoa definitely
does not run to two (2) months. In any event, the presence or
absence of spermatozoa in the vagina is not even determinative of
the commission of rape because a sperm test is not a sine qua
non for the successful prosecution of a rape case. 31 The important
element in rape is penetration of the pudenda and not emission of
seminal fluid. 32
The Court is also not impressed by accused-appellant's claim that
he could not have raped Annalyn and Roselyn because they
continued to be close to him, i.e., they still hugged and kissed him
in public and continued to sleep with him in one room. They were
also allegedly able to continue attending their classes and obtain
good grades at the time they were supposedly molested by him.
It was Catalina Calma, mother of accused-appellant, who testified
about Annalyn's and Roselyn's supposed show of affection towards
him and their supposed normal life during that trying period. But
Catalina's testimony is hard to believe. Annalyn herself testified
that at that time, she was cutting classes and in school, her
classmates saw her crying at the library. 33 Roselyn, on her part,
testified that she was greatly bothered by what appellant had done
to her and after the case was filed, she felt at peace and was able
to continue with her studies. 34
There is also nothing commendable in accused-appellant's
contention that the forceful insertion of a normal-size adult male
penis into the vagina of girls of victims' ages would have required
hospitalization and medical attention. Again, we sustain the
Solicitor General's argument that full penetration of the vagina is
not necessary to constitute the consummated crime of rape. It is
settled that the mere entry of the penis into the labia majora of the
female organ even without rupture of the hymen, suffices to
warrant a conviction of rape. 35
The arguments of accused-appellant are premised on the
misconception that reasonable doubt is anything and everything
that removes a statement from the matrix of certitude. Were we to
agree with him and treat every unlikely or uncommon trait
characterizing a person, each strange or unusual event in the
occurrence of a crime, or just any unexplained, irregular or
dysfunctional behavior on the part of the accused or his victims, as
basis for reasonable doubt, no criminal prosecution would prevail.
It bears repeating that even inconsistencies and discrepancies in
the prosecution evidence, unless treating of the elements of the
crime, would not necessarily bring about a judgment of acquittal.
In this case, there is not even any inconsistency or discrepancy to
speak of. Accused-appellant denied criminal liability by simply
insisting that his daughters, with coaching from their mother, lied
on the witness stand. But during cross examination, they never
flinched in their testimony. They spoke in simple, direct words
customary of children of their ages, and they maintained their
testimony amidst warnings 36 by the court and the defense counsel
that their father may meted out the death penalty if found guilty of
the crimes that they were charging him with. Significantly, their
testimony was corroborated by the medical findings of vaginal
lacerations on all three victims and their non-virgin
state. 37 Neither may any of the defense evidence be attributed
with having materially negated the positive testimony of accused-
appellant's daughters regarding their defilement in the hands of
their father. The defense witnesses may have testified that they
remained affectionate towards their father and continued to earn
high grades in school, but they denied these statements and
statements and countered that they had cut classes and were
sometimes seen crying in the library by some of their
classmates. 38 All things considered, we find the evidence against
the accused-appellant established his guilty beyond reasonable
doubt.

WHEREFORE, the appeal is HEREBY DENIED, and the judgment of

conviction rendered by the Regional Trial Court, 3rd Judicial Region,
Malolos Bulacan, Branch 14, finding Rodrigo Calma y Sacdalan
guilty beyond reasonable doubt for two (2) counts of Rape under
Art. 335 of the Revised Penal Code, as amended by Sec. 11 of
Republic Act No. 7659, and one (1) count of Acts of Lasciviousness
under Art. 336 of the Revised Penal Code in relation to Sec. 5(B) of
Art. III of Republic Act No. 7610, is AFFIRMED with the slight
modification that the civil indemnity in each of the three offenses is
increased to P75,000.00 in accordance with the latest
jurisprudence 39 on the matter. Accused-appellant RODRIGO
CALMA Y SACDALAN is hereby sentenced:

In Criminal Case No. 752-M-96

To the penalty of death to be carried out in

accordance with law; and to indemnify Annalyn
Calma in the amount of P75,000.00, and to pay
her the amount of P50,000.00 as moral
damages and P25,000.00 as exemplary
damages;

In Criminal Case No. 753-M-96

To the penalty of death to be carried out in

accordance with law; and to indemnify Roselyn
Calma in the amount of P75,000.00, and to pay
her the amount of P50,000.00 as moral
damages and P25,000.00 as exemplary
damages; and

In Criminal Case No. 754-M-96

To the penalty of reclusion temporal in its

medium period; and to indemnify Irene Calma
in the amount of P50,000.00, and to pay
P50,000.00 as moral damages and P25,000.00
as exemplary damages.

Four (4) Members of the Court, although maintaining their

adherence to the separate opinions expressed in People v.
Echegaray 40 that R.A. No. 7659 insofar as it prescribes the penalty
of DEATH is unconstitutional, nevertheless, submits to the ruling of
the Court, by a majority vote, that the law is constitutional and that
the death penalty should accordingly be imposed.

In accordance with Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this decision,
let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power. No
pronouncement as to costs.

SO ORDERED.

636
[G. R. No. 128823-24. December 27, 2002]
PEOPLE OF THE PHILIPPINES, accused-appellee,
vs.
PEDRO FLORES, JR., y FLORES ALIAS PESIONG, accused-
appellant.
DECISION
CARPIO-MORALES, J.:
An assault on sexual innocence can open a floodgate of emotions.
This Court, however, cannot allow emotions to drown an accuseds
right to be informed of the nature and cause of the accusation
against him.
For automatic review before this Court is the Joint Decision of the
Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding
accused-appellant Pedro Flores Jr. y Flores alias Pesiong guilty of
two counts of rape of his then 11 year old daughter and sentencing
him to suffer the penalty of death in each.
The complaints against accused-appellant filed on February 3, 1997
read as follows:
Criminal Case No. U-9184:
CRIMINAL COMPLAINT[1]
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade
three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO
FLORES, JR., Y FLORES for the crime of RAPE, committed as
follows:
That on the 9th day of December 1996, in the morning at Sitio
Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, by means of force
and intimidation, did then and there, willfully, unlawfully, criminally
and feloniously sexually abuse the herein complaining witness
FILIPINA FLORES Y LAZO, 11 years old, all against her will.
x x x (Emphasis supplied).
Criminal Case No. U-9185:
CRIMINAL COMPLAINT[2]
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade
three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO
FLORES, JR., Y FLORES, ALIAS PESYONG, committed as follows:
That on the 28th day of December 1996, in the evening at Sitio
Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate
intent and by means of force and intimidation, did then and there,
willfully, unlawfully, criminally and feloniously sexually abuse the
herein complaining witness FILIPINA FLORES, an 11 years old and
daughter of the herein accused with the use of sharp pointed bladed
weapon and all against her will.
x x x (Emphasis supplied).
Arraigned on February 10, 1997, accused-appellant pleaded
not guilty to both charges.[3]
Culled from the records of the case are the following facts
established by the prosecution:
637
On December 5, 1996, private complainant Filipina L. Flores
(Filipina), 11 years old at the time, and her younger sister Catherine
were left to the care of their father, herein accused-appellant, at
their family residence in Sitio Buenlag, Barangay Nancamaliran
West, Urdaneta, Pangasinan, their mother Marcelina L. Flores
having departed for Singapore to work as an overseas contract
worker.
After partaking of supper on the night of December 9,
1996,[4] accused-appellant asked Filipina to accompany him to the
comfort room situated outside their house,[5] claiming that he was
afraid of ghosts.[6] Albeit Filipina did not believe[7] him, she
acquiesced because her mother had told her to always obey her
father.[8]
When accused-appellant came out of the comfort room, he
ordered Filipina to remove her short pants, threatening her with
death if she disobeyed,[9] and made her lie down.[10] He then
removed his short pants and brief and, against her will, he inserted
his finger and later his penis into Filipinas vagina[11] where she later
felt hot fluid.[12]
Accused-appellant thereafter wiped Filipinas vagina and his
hand, threatened to kill her if she reported what he did, directed
her to put on her shorts, and they both went home. The following
morning, Filipina reported the incident to her Inang Lorie whose full
name is Norielyn Antonio, the aunt of her mother, who told her that
if her father would sexually assault her again, he would have him
detained.
Nineteen nights later or on December 28, 1996, as Filipina lay
asleep in their house, she was awakened when accused-appellant
touched her right foot.[13] Armed with a knife[14], accused-appellant
told her not to talk[15] and ordered her to remove her short pants
and panty. She complied. Accused-appellant thereupon removed
his short pants and brief and went on top of her chest during which
she tried to push him away but failed.
Accused-appellant then inserted his finger into Filipinas
vagina for some time,[16] wiped his hands, and then inserted his
penis for a long time as he was sucking her breast. Filipina felt
accused-appellants semen drop into her private organ where she
noticed the presence of blood and a bit of whitish substance.
Accused-appellant later wiped her vagina with a towel. The
following morning, private complainant again reported the matter
to her grandaunt Norielyn,[17] and to her playmate Carla
Salvador.[18]
On January 31, 1997, Filipina, accompanied by Norielyn, a
relative, and a tricycle driver-neighbor, reported the matter to the
Philippine National Police of Urdaneta where she gave a statement.
On the same day, she, still accompanied by Norielyn, submitted
herself to a medical examination at the Don Amadeo J. Perez, Jr.
Memorial General Hospital the results of which are contained in a
medical certificate[19] showing the following:
(-) Negative menarche
- Multiple deep healed lacerations all over the labia majora.
- Admits examining finger with ease.
- (+) sticky whitish discharge.
Dr. Jeanna B. Nebril, the examining physician, found the
presence of deep-healed lacerations all over the labia
majora[20] which deep-healed lacerations connote, according to the
doctor, the application of force, possibly two weeks before the
examination.
Denying the accusations, accused-appellant claimed as
follows:
Filipina, whom he whipped in the afternoon of December 9,
1996 for not attending school on the 6th, 7th and 8th of December
that year and for having received money from her
classmate,[21] was not in their house on the night of December 9,
1996 because she was in the house of Norielyn.Neither was she in
their house on the night of December 28, 1996 as she was at the
house of his mother Margarita Flores[22] in Cafloresan.
Accused-appellants testimony was corroborated by his mother
Margarita, and his teenaged children Benito and Baby Jean Flores
who were staying in his mothers house. It was also corroborated
by another teenaged child, Jocelyn Flores, who was staying in the
house of accused-appellants mother-in-law, Lourdes Lazo, also in
Barangay Nancamaliran West.[23] Jocelyn added that Filipina had
intimated to her that she fabricated the rape charges because their
maternal grandmother Lourdes wanted their father, accused-
appellant, jailed as he begrudged him for having eloped with their
mother,[24] and that Lourdes threatened her with abandonment or
detention in jail in case she defied, and promised to give her
jewelry, shoes and dress if she agreed to carry out her desire.
After trial, the court a quo found accused-appellant guilty of
Statutory Rape and sentenced her to death in both cases in its April
7, 1997 Joint Decision, the dispositive portion of which reads:
WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES,
JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the
crime of Statutory Rape, an offense defined and penalized under
paragraph 3, Article 335, of the Revised Penal Code in relation to
Section 1, Republic Act 7659 aggravated by relationship, the Court
sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as
follows:
CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH;
ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the
sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages, plus all the necessary penalties and costs.
CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH;
ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the
sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages, plus all the necessary penalties and costs.
Pedro Flores, Jr. y Flores alias Pesiong shall be committed
immediately to the National Bilibid Prisons. The Branch Clerk of
Court is hereby ordered to transmit the entire records of this case
to the Honorable Supreme Court of the Philippines for automatic
review of this Decision.
In view of the penalty of death imposed by the court a quo,
the case is now before this Court on automatic review. Accused-
appellant assigns as errors the following:
I. THAT THE FILING OF THE CASE [AT BAR] WAS
MOTIVATED BY SOME FACTORS OTHER THAN THE
TRUTH AS TO ITS COMMISSION, AND SO THE
ACCUSED SHOULD BE ACQUITTED.
II. THAT THE COURT [A QUO] ERRED IN NOT
APPRECIATING THE DEFENSE OF THE ACCUSED-
APPELLANT THAT THE COMPLAINANT WAS NOT AT
THE SCENE OF THE CRIME WHEN THE ALLEGED
INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT
TO OVERCOME AND DESTROY THE TESTIMONY OF
THE COMPLAINANT THAT WOULD HAVE
WARRANTED THE ACQUITTAL OF THE ACCUSED-
APELLANT.
It is settled that in a criminal case, an appeal throws the
whole case open for review, and it becomes the duty of the
appellate court to correct such errors as may be found in the
judgment appealed from, whether they are made the subject of
assignment of errors or not.[25]
It is at once apparent, from a reading of the above-quoted
complaints, that accused-appellant was denied the constitutional
right to be informed of the nature and cause of the accusation
against him. This right has the following objectives: [26]
638
1. To furnish the accused with such a description of the charge
against him as will enable him to make the defense;
2. To avail himself of his conviction or acquittal for protection
against further prosecution for the same cause;
3. To inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction if one
should be had.
The right cannot be waived for reasons of public policy.[27] Hence,
it is imperative that the complaint or information filed against the
accused be complete to meet its objectives. As such, an
indictment must fully state the elements of the specific
offense alleged to have been committed.[28] For an accused cannot
be convicted of an offense, even if duly proven, unless it is
alleged or necessarily included in the complaint or information.[29]
The court a quo found accused-appellant guilty of Statutory
Rape under Article 335[30] of the Revised Penal Code, as amended
by R. A. No. 7659 (which restored the death penalty for heinous
crimes effective December 31, 1993) which provides:
Article 335. When and how rape is committed.--- Rape is
committed by having carnal knowledge of a woman under any of
the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is demented.
The gravamen of the crime of rape is carnal
knowledge or sexual intercourse between a man and a woman
under the circumstances enumerated in the penal code.[31] Thus, to
sustain a conviction, the complaint or information must allege that
the accused had carnal knowledge of or sexual
intercourse with the private complainant. In the criminal
complaints at bar, however, no such allegation was made.
The allegation that accused-appellant did sexually abuse Filipina
does not suffice. In the recent case of People v. Lito Egan alias
Akiao[32], this Court ruled that although the prosecution has proved
that [the therein private complainant] Lenie was sexually
abused, the evidence proffered is inadequate to establish
carnal knowledge.[33] Hence, sexual abuse cannot be equated
with carnal knowledge or sexual intercourse.[34] The allegation in
the instant criminal complaints that accused-appellant sexually
abuse[d] the private complainant cannot thus be read to mean that
accused-appellant had carnal knowledge or sexual intercourse with
the private complainant.
This Court is not unaware of the rule in case there is a
variance between allegation and proof as etched in Section 4 of
Rule 120 of the Revised Rules of Criminal Procedure which reads:
SEC. 4. Judgment in case of variance between allegation and
proof.When there is variance between the offense charged in the
complaint or information and that proved, and the offense as
charged is included in or necessarily includes the offense proved,
the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is
included in the offense proved.[35]
The case at bar, however, is not one of variance between allegation
and proof. The recital of facts in the criminal complaints simply does
not properly charge rape, sexual abuse not being an essential
element or ingredient thereof.
Neither can accused-appellant be convicted of acts of
lasciviousness or of any offense for that matter under our penal
laws. It is settled that what characterizes the charge is the actual
recital of facts [36] in the complaint or information. For every
crime is made up of certain acts and intent which must be set forth
in the complaint or information with reasonable particularity of
time, place, names (plaintiff and defendant), and circumstances. In
other words, the complaint must contain a specific allegation of
every fact and circumstance necessary to constitute the crime
charged[37], the accused being presumed to have no independent
knowledge of the facts that constitute the offense.[38]
And even under the provisions of Republic Act No. 7610 (The
Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act),[39] accused-appellant cannot be held liable.
Section 5 of said Act provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child
prostitution which include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means;
(3) Taking advantage of influence or relationship to procure a
child as a prostitute;
(4) Threatening or using violence towards a child to engage
him as a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary
benefit to a child with the intent to engage such child in
prostitution.
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of the Revised Penal
Code, as amended by Act No. 3815, for rape or lascivious conduct
when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and
(c) Those who derive profit or advantage therefrom, whether as
manager or owner of the establishment where the prostitution
takes place or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the
license has been issued to said establishment. (Emphasis and
underscoring supplied).
Section 2 (g) of the Rules and Regulations on the Reporting
and Investigation of Child Abuse Cases[40], issued pursuant to
Section 32 of Republic Act No. 7610, defines sexual abuse by
inclusion as follows:
Sexual abuse includes 1) the employment, use, persuasion,
enticement, or coercion of a child to engage in, or assist another
person to engage in sexual intercourse orlascivious conduct or
2) the molestation, 3) prostitution, or 4) incest with children.
(Underscoring supplied)
639
From this broad, non-exclusive definition, this Court finds that
the phrase sexually abuse in the criminal complaints at bar does
not comply with the requirement that the complaint must contain a
specific averment of every fact necessary to constitute the crime.
Notably, the phrase sexual abuse is not used under R.A. No. 7610
as an elemental fact but as an altogether separate offense. Above-
quoted Section 5 thereof enumerates the punishable acts that must
be alleged in the complaint or information to hold an accused
liable, none of which is reflected in the complaints at bar
charging accused-appellant.
The case of People v. Cruz [41] is instructive. There the
information in Criminal Case No. 15368-R read:
That on or about the 2nd day of August, 1997, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously commit sexual abuse on his daughter either by
raping her or committing acts of lasciviousness on her, which
has debased, degraded and demeaned the intrinsic worth and
dignity of his daughter, JEANNIE ANN DELA CRUZ as a human
being.
CONTRARY TO LAW. (Emphasis supplied)
Finding the above-quoted information void, this Court held:
The Court also finds that accused-appellant cannot be convicted
of rape or acts of lasciviousness under the information in
Criminal Case No. 15368-R, which charges accused-appellant of a
violation of R.A. No. 7610 (The Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act), either by
raping her or committing acts of lasciviousness.
It is readily apparent that the facts charged in said information
do not constitute an offense. The information does not cite
which among the numerous sections or subsections of R.A. No.
7610 has been violated by accused-appellant. Moreover, it does
not state the acts and omissions constituting the offense, or
any special or aggravating circumstances attending the same, as
required under the rules of criminal procedure. Section 8, Rule 110
thereof provides:
Designation of the offense.The complaint or information shall state
the designation of the offense given by the statue, aver the acts or
omissions constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of the
offense, reference shall be made to the section or subsection of the
statute punishing it.
The allegation in the information that accused-appellant willfully,
unlawfully and feloniously commit sexual abuse on his daughter
[Jeannie Ann] either by raping her or committing acts of
lasciviousness on her is not a sufficient averment of the acts
constituting the offense as required under Section 8, for these are
conclusions of law, not facts. The information in Criminal Case No.
15368-R is therefore void for being violative of the accused-
appellants constitutionally-guaranteed right to be informed of the
nature and cause of the accusation against him. (Emphasis &
underscoring supplied)
As held by this Court in the above-case of Cruz, the allegation
in the information that the therein accused-appellant sexually
abused the therein private complainant by either raping or
committing acts of lasciviousness on her is not a sufficient
averment of the acts constituting the offense as required under
Section 8 [of Rule 110], for these are conclusions of law, not
facts. Nothing less can be said of the criminal complaints in the
cases at bar. They are void for being violative of the accused-
appellants constitutional right to be informed of the nature and
cause of the accusation against him.
 This Court thus takes this occasion to remind public
prosecutors of their crucial role in crafting criminal complaints and
information. For all efforts may be rendered futile and justice may
be denied by a failure to state the acts or omissions complained of
as constituting the offense as exemplified by the present case.

The foregoing disquisition leaves it unnecessary to dwell on

accused-appellants assigned errors or of other errors including
failure to allege relationship in the first complaint, and lack of proof
of minority in both cases.

WHEREFORE, the informations in Criminal Case Nos. U-9184

and U-9185 are hereby declared null and void for being violative of
the constitutional right of accused-appellant Pedro Flores,
Jr. y Flores alias Pesiong, for Rape to be informed of the nature and
cause of the accusation against him. Hence, the cases against him
are hereby DISMISSED.

The Director of Prisons is hereby directed to forthwith cause

the release of accused-appellant unless the latter is being lawfully
held for another cause and to inform the Court accordingly within
10 days from notice.

Costs de oficio.

SO ORDERED.

640
G.R. No. 134583 July 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
FREDDIE MURILLO, appellant.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court on automatic review is the decision1 rendered by
the Regional Trial Court, Branch 259, Parañaque, dated June 1,
1998, finding appellant Freddie Murillo guilty beyond reasonable
doubt of the crime of murder and sentencing him to suffer the
penalty of death.
The Information charges appellant Freddie Murillo as follows:
That on or about the 6th day of June, 1997, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill
and with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab one Paz
Abiera with a bladed weapon on her chest, thereby inflicting upon
her serious and mortal wounds which directly caused her death.
With the aggravating circumstances of cruelty and abuse of
superior strength.
CONTRARY TO LAW.2
Upon arraignment, appellant, with the assistance of Atty. Dante O.
Garin of the Public Attorney's Office, pleaded guilty to the
charge.3 Trial then ensued.
The prosecution presented Sancho Ferreras, brother of the victim;
barangay tanod Ramon Saraos; SPO2 Angel Nieves of the
Parañaque Police; and NBI Medico-legal Officer Ludivino Lagat.
They established the following facts:
On June 12, 1997, SPO2 Nieves received a report that Paz Abiera
was missing.4 The following day, Ramon Saraos, a barangay tanod
of Cul de Sac Rotonda, Sun Valley, Parañaque received a request
from Sarah Murillo, mother of herein appellant and Arlan Murillo, to
investigate a foul smell emanating from the house of Paz Abiera.
Said house was being shared by Paz and her two nephews,
appellant and Arlan. When Ramon asked appellant what happened
to his aunt, the latter answered that Paz had been missing since
June 7, 1997 and that he earlier reported the incident to the police.
Ramon then asked permission from appellant to look inside the
house and there he noticed blood stains at the foot of the house.
Ramon also noticed that the foul odor was coming from inside. He
asked assistance from the Parañaque Police and SPO2 Nieves
responded. When SPO2 Nieves arrived, they removed the toilet
bowl and opened the septic tank where they recovered parts of
human arms and legs.5 SPO2 Nieves questioned Freddie and Arlan,
who both denied any involvement in the killing of Paz. SPO2 Nieves
later ordered that the two brothers be brought to Block 6. After
about 30 minutes, SPO2 Nieves received a call from the radio
saying that Freddie Murillo already admitted to having killed his
aunt Paz Aberia using a knife. Freddie then showed them where he
threw Paz's severed head. They were able to locate a red and white
striped plastic bag which contained the victim's head at a canal near
the service road of the South Super Highway. They also found a
blood stained bed sheet, reading glasses and a stone with blood
stains in the house of the victim.6
They recovered a total of eighty pieces of body parts that were all
in an advanced state of decomposition. An examination conducted
on the body parts showed that there were stab wounds that
penetrated the lungs, the intestines and the liver. The examination
641
also showed that it is possible that the instrument used in killing
and decapitating the victim was a knife.7
As a hostile witness of the prosecution, appellant testified as
follows: On June 6, 1997, at around 2:30 in the afternoon, his aunt,
Paz Abiera scolded and slapped him for wasting electricity after she
caught him watching television at the second floor of their house.
His vision darkened ("nagdilim na po ang pangingin ko") due to the
repeated times that Paz scolded and uttered hurtful words to him.
When he saw a knife, he took it and stabbed her on the chest. He
dragged her body from the second floor to the comfort room
downstairs where he chopped her body into several pieces using
the same knife. After doing so, he removed the toilet bowl and
dumped the body parts into the septic tank. He brought the severed
head to the highway along the service road near Astra. Later, he
asked help from his brother Arlan in cementing a new toilet bowl
over the septic tank. His brother Arlan did not know that he killed
their aunt. It took him a while to confess his guilt because he was
afraid that the police might hurt him. While his mother, Sarah
Murillo, often visited him and Arlan at their aunt's house, he did not
tell his mother about what he did because he was afraid.8
After the testimony of appellant, the prosecution rested its case.
On June 1, 1998, the trial court rendered its decision with the
following findings:
Assessing the evidence on record, particularly considering the
admission made in open Court by the herein accused despite having
been duly informed by his counsel of the consequences of his
testimony, this Court finds without an iota of doubt that he alone
committed the abominable act of killing his aunt and later on
hideously dismembering her body in his attempt to hide the corpus
of his crime. Truly unspeakable is the manner by which accused
Murillo disposed of the body of the victim first by cutting her body
parts and hiding them in a septic tank and then throwing away the
victim's head in a canal or drainage along the service road near the
South Superhighway.
...
The information charges the herein accused for committing the
crime of Murder with the qualifying circumstances of treachery
(alevosia) and evident premeditation and with cruelty and abuse of
superior strength as aggravating circumstances.
On the aggravating circumstances of abuse of superior strength,
the mere fact that the assailant is a male person whereas the victim
is a woman does not ipso fact mean that such circumstance can be
appreciated by the Court unless perhaps if it was shown that the
attacker was a Hulk Hogan and the victim is a frail reed thin woman.
Cruelty likewise cannot be inferred in the case at bar from the fact
that the body of the deceased was dismembered in the absence of
proof that this was done while the victim was still alive. The object
sought to be attained by Murillo in this case may well have been to
make the recovery of the body of the victim absolutely impossible.
In regard to the qualifying circumstances of treachery or alevosia
and evident premeditation, the fact that no commotion, no unusual
sounds or noises were even heard or noticed in the vicinity at the
time of the stabbing of the victim would indicate that the accused
planned the killing and made sure that in its execution, there would
be no risk to himself arising from any defense which said victim
might make. Considering the rule however, that, if two or more
possible qualifying circumstances were alleged and proven or in the
case obtaining at the bar, only one would qualify the offense to
Murder and the other would be generic.9
The dispositive portion of the decision reads:
WHEREFORE, premises considered, finding accused FREDDIE
MURILLO, GUILTY beyond reasonable doubt of the crime of Murder
as defined and penalized under Art. 248 of the Revised Penal Code
with the qualifying and/or generic aggravating circumstances of
treachery or alevosia and or evident premeditation, this Court
hereby sentences him to the penalty of DEATH and to suffer the
accessory penalties provided by law specifically Art. 40 of the
Revised Penal Code. For the civil liabilities, he is further condemned
to indemnify the heirs of the herein victim Paz Abiera the amount
of P50,000.00 in line with existing jurisprudence; P27,000.00 for
funeral expenses; P50,000.00 for moral damages and P50,000.00
for exemplary damages.
The Clerk of Court is also directed to prepare the Mittimus for the
immediate transfer of accused Freddie Murillo from the Parañaque
City Jail to the Bureau of Correction in Muntinlupa City and finally
to forward all the records of this case to the Supreme Court for
automatic review in accordance with Sec. 9, Rule 122 of the Rules
of Court and Art. 47 of the Revised Penal Code as amended by R.A.
7659.
SO ORDERED.10
Hence this automatic review pursuant to Article 47 of the Revised
Penal Code, as amended.
In his brief, appellant claims that the court a quo gravely erred:
I present evidence on his behalf and allow him to do so if he
…IN CONVICTING (HIM) OF THE CRIME OF MURDER AND
SENTENCING HIM TO DEATH ON THE BASIS OF HIS
IMPROVIDENT PLEA OF GUITY; and
II
…IN CONSIDERING THE CIRCUMSTANCES OF
TREACHERY AND EVIDENT PREMEDITATION IN
QUALIFYING THE KILLING TO MURDER
NOTWITHSTANDING THAT THE PROSECUTION FAILED TO
ESTABLISH THE SAME.11
Appellant argues: His plea of guilt was improvident since there was
no indication that he fully understood that the qualifying
circumstances charged in the information would result to the
penalty of death. He only admitted the killing but not the
circumstances of treachery and evident premeditation. There could
be no evident premeditation since he stabbed Paz only after losing
his senses. There could also be no treachery since it cannot be
determined with certainty whether or not the wounds inflicted on
the victim were made before or after her death. The aggravating
circumstance of "outraging or scoffing at his person or corpse"
cannot be appreciated in this case since it was not alleged in the
Information.12
The Solicitor General points out that there was treachery since the
appellant himself admitted that when his aunt scolded him, he took
a knife and suddenly stabbed her in the chest;13 and that the trial
court did not err in finding the presence of evident premeditation.14
In his Reply, appellant adds that the observations made by the
court a quo are based merely on inferences that are
unsubstantiated by concrete evidence.15
After reviewing the entire records of the case, we find that there
was an improvident plea of guilt that warrants the remand of the
case to the trial court.
Rule 116 of the Rules on Criminal Procedure provides:
SEC. 3. Plea of guilty to capital offense; reception of evidence.---
When the accused pleads guilty to a capital offense, the court shall
642
conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and shall require
the prosecution to prove his guilt and the precise degree of
culpability. The accused may also present evidence in his behalf.
The reason for this rule is that courts must necessarily proceed with
more care where the possible punishment is in its severest form –
death – for the reason that the execution of such sentence is
irrevocable. Experience has shown that innocent persons have at
times pleaded guilty in the hope of a lenient treatment, or upon bad
advice or because of promises of the authorities or parties of a
lighter penalty should he admit guilt or express remorse. An
accused might be admitting his guilt before the court and thus
forfeit his life and liberty without having fully understood the
meaning, significance and consequences of his plea. The judge
therefore has the duty to ensure that the accused does not suffer
by reason of mistaken impressions.16 Requiring the trial court to
take further evidence would also aid this Court on appellate review
in evaluating the propriety or impropriety of the plea.17
Under the said rule, three things are required from the trial court
when a plea of guilty to a capital offense is entered: (1) the court
must conduct a searching inquiry into the voluntariness of the plea
and the accused's full comprehension of the consequences thereof;
(2) the court must require the prosecution to present evidence to
prove the guilt of the accused and the precise degree of his
culpability; and (3) the court must ask the accused if he desires to
desires.18
The searching inquiry referred to here means more than just
informing cursorily the accused that he faces jail term.19 The inquiry
must expound on the events that actually took place during the
arraignment, the words spoken and the warnings given, with
special attention to the age of the accused, his educational
attainment and socio-economic status as well as the manner of his
arrest and detention, the provision of counsel in his behalf during
the custodial and preliminary investigations, and the opportunity of
his defense counsel to confer with him. The trial court must also
explain to the accused the essential elements of the crime he is
charged with as well as its respective penalties and civil
liabilities.20 The exact length of imprisonment under the law and the
certainty that he will serve time at the national penitentiary or a
penal colony must be fully explained to the accused. The court must
also explain to the accused that once convicted, he could be meted
the death penalty and that it is a single and indivisible penalty that
will be imposed regardless of any mitigating circumstance that may
have attended the commission of the felony.21 The court must also
direct a series of questions to the defense counsel to determine
whether he has conferred with the accused and has completely
explained to the latter the meaning of a plea of guilt. This formula
is mandatory and absent any showing that it has been followed, a
searching inquiry cannot be said to have been undertaken.22
In People vs. Pastor,23 the Court explained that while there is no
definite and concrete rule as to how a trial judge must conduct a
"searching inquiry", the following guidelines should nevertheless be
observed:
1. Ascertain from the accused himself (a) how he was brought into
the custody of the law; (b) whether he had the assistance of a
competent counsel during the custodial and preliminary
investigations; and (c) under what conditions he was detained and
interrogated during the investigations. This is intended to rule out
the possibility that the accused has been coerced or placed under
a state of duress either by actual threats of physical harm coming
from malevolent quarters or simply because of the judge's
intimidating robes.
2. Ask the defense counsel a series of questions as to whether he
had conferred with, and completely explained to, the accused the
meaning and consequences of a plea of guilty.
3. Elicit information about the personality profile of the accused,
such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity
to give a free and informed plea of guilty.
4. Inform the accused the exact length of imprisonment or nature
of the penalty under the law and the certainty that he will serve
such sentence. For not infrequently, an accused pleads guilty in the
hope of a lenient treatment or upon bad advice or because of
promises of the authorities or parties of a lighter penalty should he
admit guilt or express remorse. It is the duty of the judge to ensure
that the accused does not labor under these mistaken impressions
because a plea of guilty carries with it not only the admission of
authorship of the crime proper but also of the aggravating
circumstances attending it, that increase punishment.
5. Inquire if the accused knows the crime with which he is charged
and fully explain to him the elements of the crime which is the basis
of his indictment. Failure of the court to do so would constitute a
violation of his fundamental right to be informed of the precise
nature of the accusation against him and a denial of his right to due
process.
6. All questions posed to the accused should be in a language
known and understood by the latter.
7. The trial judge must satisfy himself that the accused in pleading
guilty, is truly guilty. The accused must be required to narrate the
tragedy or reenact the crime or furnish its missing details.24
In the case at bar, records do not show that a searching inquiry
was ever conducted by the judge when appellant entered his plea
of guilty. The Order dated July 14, 1997 simply reads as follows:
Accused, when arraigned, with the assistance of Atty. Dante O
Garin of the Public Attorney's Office, pleaded GUILTY to the crime
charged in the information.
Let this case be set for hearing on July 28, 1997 at 8:30 o'clock in
the morning.
Let subpoena be issued to all prosecution witnesses for the next
scheduled hearing.
SO ORDERED.25
While we have held that the absence of the transcript of
stenographic notes of the proceedings during the arraignment does
not make the procedure flawed, the minutes of the proceedings,
however, must indubitably show that the judge has substantially
complied with the requirements of Rule 116, Sec. 3.26 No less than
a man's life is at stake in this case. Whatever appellant might have
said to show that he was waiving his defense voluntarily and with
full knowledge of the consequences of his plea should have been
made of record.27 Here, there is no proof at all that the judge ever
conducted any searching inquiry.
The trial court mentioned in its decision the importance of Section
3, Rule 116, of the Rules of Court in cases of pleas of guilt, however,
it failed to show compliance therewith. Pertinent portions of the
decision read:
Under Sec. 3, Rule 116 of the Rules of Court, when the accused
pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of
the consequences of his plea and require the prosecution to prove
his guilt and the precise degree of culpability. The accused may also
present evidence in his behalf.
643
In People vs. Salvador, 224 SCRA 819, to be liable for murder, an
accused must be proven to have committed the killing of another
person under the attendant circumstances specified in Article 248
of the Revised Penal Code.
In People vs. Jocson, 163 SCRA 525, Accused's plea of guilty which
was freely and voluntarily made added to the evidence adduced by
the prosecution sufficiently established his culpability.
With the plea of guilty, appellant had admitted the commission of
the unlawful act. Hence, the presumption is that the act was done
with an unlawful intent unless accused rebuts this presumption.
People vs. Verona, 163 SCRA 614.
Assessing the evidence on record, particularly considering the
admission made in open Court by the herein accused despite having
been duly informed by his counsel of the consequences of his
testimony, this Court finds without an iota of doubt that he alone
committed the abominable act of killing his aunt and later on
hideously dismembering her body in his attempt to hide the corpus
of his crime. Truly unspeakable is the manner by which accused
Murillo disposed of the body of the victim first by cutting her body
parts and hiding them in a septic tank and then throwing away the
victim's head in a canal or drainage along the service road near the
South Superhighway.28
The transcript of how the defense counsel, Atty. Dante O. Garin of
the Public Attorney's Office, supposedly informed the accused of his
rights also merely read as follows:
ATTY. GARIN:
Your Honor please the accused already pleaded guilty to the offense
charged and the only reason we have to the motion of presenting
evidence is that the guilt of the accused must be proven by the
prosecution notwithstanding the plea of guilty entered into during
his arraignment. This representation your Honor finds it necessary
to inform the accused of his constitutional rights. And with the
Court's permission, before he will testify as hostile witness, I would
like to inform the accused for the record.
Q. Mr. Freddie Murillo, ikaw ang akusado dito sa kasong
ito. Ang proseso natin ay kung sino man ang nagbibintang
ay siyang dapat magpatunay ng kasalanang ibinibintang.
Sa sitwasyong ito, ikaw ay pinagbibintangan ng kasong
murder. At ang ebidensiyang gagamitin ay dapat
manggagaling sa kung sino man ang nagbibintang sa iyo
na ikaw ay nakapatay ng tao. Ngayon ikaw ay uupo
ngayon sa silyang iyan para magsalita tungkol doon sa
pangyayari. Meron kang karapatan na hindi pumayag na
magsalita ng ano'ng bagay na maaaring ikapahamak mo.
Maaari mong hindi sagutin iyong tanong, maaring hindi
ka umupo riyan, nasa sa iyo ang desisyon. Naiintindihan
mo ba?
A. Opo.
Q. Ngayong naipaliwanag ko na sa iyo ikaw ba ay
handang magsalita tungkol sa kasong ito?
A. Opo.
That's all for the witness, your Honor.29
Clearly, the proceedings taken by the trial court was short of being
satisfactory. Appellant was never asked about the circumstances of
his arrest and detention, not even when SPO2 Nieves himself in his
testimony mentioned that he ordered that the two brothers be
brought to "Block 6" for questioning without the presence of
counsel. Where or what kind of place "Block 6" is, was not even
explained by the witness neither did the court nor the defense
counsel ask the witness to clarify said point. The Court also did not considering not only the accused's improvident plea of guilt but also
ask appellant about the circumstances of his arraignment as well his lawyer's neglect in representing his cause.
as his age and educational attainment. He was also neither apprised
of the consequences of his plea nor was it explained to him that the
WHEREFORE, the decision dated June 1, 1998 of the Regional Trial
penalty imposable for the crime attended by its qualifying
Court, Branch 259, Parañaque, finding appellant Freddie Murillo
circumstances as alleged in the Information is death regardless of
guilty beyond reasonable doubt of Murder in Criminal Case No. 97-
the presence of mitigating circumstances.
502 is ANNULLED and SET ASIDE. Let the records be REMANDED
to the court of origin for further proceedings as indicated in the text
The failure of the defense counsel to faithfully protect the rights of of herein decision, to be conducted with deliberate speed in
appellant also cannot go unnoticed. Records show that defense accordance with this decision.
counsel Atty. Dante O. Garin, never cross-examined three of the
four witnesses of the prosecution, namely Sancho Fereras,30 Ramon
SO ORDERED.
Saraos,31 and Dr. Ludivino Lagat.32 The only prosecution witness he
cross-examined was SPO2 Nieves to whom he asked four questions
pertaining only as to how the police came to the conclusion that the
body parts belong to Paz Abiera.33 Apart from these, no other
questions were ever offered.

There is also no record anywhere that the defense counsel

presented evidence for the accused nor that the trial court even
inform him of his right to do so if he so desires.

For these reasons, it cannot be said that the appellant's rights were
observed in the proceedings a quo.

It is well established that the due process requirement is part of a

person's basic rights and is not a mere formality that may be
dispensed with or performed perfunctorily. An accused needs the
aid of counsel lest he be the victim of overzealous prosecutors, of
the law's complexity or of his own ignorance and bewilderment.
Indeed, the right to counsel springs from the fundamental principle
of due process.34 The right to counsel, however, means more than
just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The right to
counsel means that the accused is sufficiently accorded legal
assistance extended by a counsel who commits himself to the cause
for the defense and acts accordingly. This right necessitates an
active involvement by the lawyer in the proceedings, particularly at
the trial of the case, his bearing constantly in mind of the basic
rights of the accused, his being well-versed on the case and his
knowing the fundamental procedures, essential laws and existing
jurisprudence. Indeed, the right of an accused to counsel finds
meaning only in the performance by the lawyer of his sworn duty
of fidelity to his client and an efficient and truly decisive legal
assistance which is not just a simple perfunctory representation.35

Atty. Garin, had the duty to defend his client and protect his rights,
no matter how guilty or evil he perceives appellant to be. The
performance of this duty was all the more imperative since the life
of appellant hangs in the balance. As a defense counsel, he should
have performed his duty with all the zeal and vigor at his command
to protect and safeguard appellant's fundamental rights.36

While our jurisdiction does not subscribe to a per se rule that once
a plea of guilty is found improvidently he is at once entitled to a
remand, the circumstances of this case warrant that a remand to
the trial court be made. To warrant a remand of the criminal case,
the Court has held that it must be shown that as a result of such
irregularity there was inadequate representation of facts by either
the prosecution or the defense during the trial.37 Where the
improvident plea of guilty was followed by an abbreviated
proceeding with practically no role at all played by the defense, we
have ruled that this procedure was just too meager to accept as
being the standard constitutional due process at work enough to
forfeit a human life.38 What justifies the remand of the criminal case
to the trial court is the unfairness or complete miscarriage of justice
in the handling of the proceedings a quo as occasioned by the
improvident plea of guilt.39 In this case, apart from the testimony
of appellant, the prosecution does not have any other evidence to
hold him liable for the crime charged.

In view of the foregoing, we find that it is imperative to remand the

case for the proper arraignment and trial of the accused,

644
G.R. No. 139180 July 31, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO RIVERA, accused- appellant.
MENDOZA, J.:
This is a review pursuant to Rule 122, §10 of the Rules of Criminal
Procedure of the decision,1 dated June 22, 1999, of the Regional
Trial Court, Branch 49, Guagua, Pampanga, finding accused-
appellant Rolando Rivera guilty of rape and sentencing him to suffer
the penalty of death and to pay the offended party, Erlanie Rivera,
the sum of P75,000.00 as compensatory damages and P50,000.00
as moral damages.
The information against accused-appellant charged—
That sometime in the month of March 1997, in barangay Santiago,
municipality of Lubao, province of Pampanga, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused ROLANDO RIVERA, by means of violence, threat and
intimidation, did then and there willfully, unlawfully and feloniously,
and maliciously succeeded in having carnal knowledge [of] his 13
year old daughter, Erlanie D. Rivera, against the latter’s will and
without her consent.
Contrary to law.2
When the information was read to him in the local dialect
(Pampango) during his arraignment on September 30, 1997,
accused-appellant, duly assisted by counsel de oficio, pleaded not
guilty to the crime charged,3 whereupon trial was held.
The prosecution presented as its witnesses complainant Erlanie
Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin, who
conducted the physical examination of complainant.
Complainant Erlanie Rivera testified that sometime in March 1997,
her younger sister, Zaira,4 was taken by their parents to the
Escolastica Romero Memorial Hospital in Lubao, Pampanga.
Complainant’s mother stayed with her sister in the hospital, but her
father, herein accused-appellant, went back home to Santiago,
Lubao, Pampanga. At around 11 o’clock in the evening of the same
day, complainant was awakened as accused-appellant started
kissing her and fondling her breasts. Complainant tried to resist by
kicking and pushing accused-appellant, but her efforts were to no
avail. Accused-appellant removed her shorts and panty, touched
her private parts, and then had sexual intercourse with her. After
he was through with her, accused-appellant told complainant not
to tell anyone what had happened or he would kill complainant’s
mother and sister. Hence, when her mother came home the
following day, Erlanie did not tell her what had happened because
she was afraid of accused-appellant.
On April 9, 1997, however, Erlanie, in the presence of her mother,
told her aunt, Marietta Pagtalunan, and her grandmother, Maxima
Payumo, that she had been raped by accused-appellant. For this
reason, she was referred to Dr. Barin for physical examination. She
also executed a sworn statement before the police of Lubao,
Pampanga.5
Erlanie testified that she became pregnant as a result of the rape
committed against her by accused-appellant, but the pregnancy
was aborted.6 On cross-examination, she said she was 13 years old
at the time of her testimony, the second child in the family. She
said that her parents were not on good terms with each other and
that she knew that her father had a mistress. Atty. Mangalindan,
then defense counsel, questioned Erlanie about other supposed
acts of molestation committed by accused-appellant against her
previous to the rape subject of the present case, but, upon
645
objection of the prosecution, the trial court disallowed the question
on the ground that it concerned matters not covered by her direct
examination.7
Erlanie testified that her mother, grandmother, aunt, and a certain
Nora Baluyut were present when she made her sworn statement
before the police. She said that her father raped her only once,
sometime in March 1997. She could not remember the exact date
when she was raped by accused-appellant, but she did remember
that the same took place in March as her sister, Zaira, was
hospitalized at the time. When the rape occurred, her younger
brother and sister were in their house asleep. She did not tell her
mother after the latter had returned home that she had been raped
by accused-appellant because she was afraid of her father who had
threatened her. After the rape, accused-appellant would only come
home on Sundays.8
Questioned further on cross-examination, Erlanie said that she
gave her sworn statement before the police and that her answers
to questions asked during her direct examination were freely given
without coaching by anyone. She could understand Tagalog, the
language used in her sworn statement. She told the court that she
struggled against accused-appellant, kicking and pushing him, but
she was overpowered by her father. At that time, Erlanie’s younger
sister, Corazon, was lying beside her, but Erlanie did not shout even
when her father succeeded in penetrating her. Erlanie could not
remember how long the sexual act took place, but she felt
something like urine come out of her father’s penis after he was
finished with her. Erlanie testified that she was 12 years old when
she was raped by her father.9
On re-direct examination, when asked about the discrepancy
between her testimony that her mother returned home only the day
after the rape and her statement in her affidavit that accused-
appellant slept beside her mother after the rape, Erlanie replied
that she made a mistake as the incident narrated in her affidavit
referred to a different occasion when no rape was committed
against her by accused-appellant.10
The next witness for the prosecution was Marietta Pagtalunan,
complainant’s aunt and the sister of complainant’s mother,
Evangeline. Marietta corroborated Erlanie’s testimony that the
latter told her sometime in April 1997 that she had been raped by
accused-appellant. Marietta said she took complainant to Dr. Barin,
who examined complainant.11
Dr. Demetria Barin was Chief Physician of the Escolastica Romero
District Hospital. Her findings are as follows:
P.E. FINDINGS:
- No signs of external Physical Injuries
I.E. FINDINGS:
HYMEN - healed laceration at 3:00 o’clock
VAGINA - Admits one finger with ease two fingers with
difficulty
UTERUS - not enlarged
LMP - March 3, 1997
Pregnancy Test (+)12
Dr. Barin testified that on April 10, 1997, she examined
complainant Erlanie Rivera and found that the victim had an injury
in the hymen at the 3 o’clock position which could possibly have
been caused by the insertion of a hard object, such as a male organ.
Dr. Barin testified that complainant Erlanie went back to see her on
May 2, 1997 because she suffered from vaginal bleeding indicative
of a threatened abortion. She said that she found that complainant
was then pregnant. Upon examination of the patient at that time,
Dr. Barin found that abortion had not yet taken place and
prescribed medicines for the complainant. Erlanie was subjected to
another pregnancy test on May 13, 1997, but the result was
negative. Dr. Barin stated that the vaginal bleeding suffered by
complainant could have caused the abortion of the fetus.13
Thereafter, the defense presented its evidence. Accused-appellant,
his sister, Concepcion Sayo, and Natividad Pinlac, Records Officer
of the Escolastica Romero District Hospital, were presented as
witnesses.
Accused-appellant denied that he raped Erlanie Rivera. He alleged
that the rape charge was filed against him because his wife,
Evangeline, had a paramour and resented him because he hurt her.
He explained that he saw his wife talking with another man in their
house and beat her up on April 1, 1997 because he heard that she
had a lover. He also said that his wife was angry with him because
he had a mistress who stayed in their house for three weeks. He
further stated that his wife’s relatives were likewise angry with him
because he caused the lot owned by his father-in-law in Santiago,
Lubao, Pampanga to be registered in his name. He said that he was
compelled to sign a waiver of his rights over the land owned by his
parents-in-law.14 The defense presented a letter to accused-
appellant written by his wife, who was asking him to sign a
document so that she could attend to it before he got out of
prison.15
The defense also offered as evidence a document, designated as
Waiver of Rights,16 signed by accused-appellant, in which he
acknowledged that he was a tenant of a parcel of land and that he
waived and voluntarily surrendered his right over the said
landholding to the "SMPCI," recommending that a certain Ponciano
Miguel be given the land to work on the same. The document was
identified by accused-appellant in open court. He said that Ponciano
Miguel was a first cousin of his wife and that he signed the
document because his wife’s relatives promised him that he would
get out of prison after signing the document.17
Another witness for the defense was Concepcion Sayo, accused-
appellant’s sister, who testified that in March 1997, accused-
appellant lived with her family in Malawak, Bustos, Bulacan, to help
her husband operate a fishpond. She said that accused-appellant
stayed in their house during the entire month of March, except in
March 19, 1997 when he stayed with their sister, Perla, in Tibagan,
Bustos, Bulacan.18
The last defense witness was Natividad Pinlac, Records Officer of
the Escolastica Romero District Hospital, who identified19 a
certification, dated April 29, 1999, in which it was stated that Zaira
Rivera was confined at that hospital from March 1 to March 2,
1997.20
On June 22, 1999, the trial court rendered a decision, the
dispositive portion of which stated:
WHEREFORE, the court finding the accused guilty beyond
reasonable doubt of the crime of rape as charged. For having
violated Article 335 of the Revised Penal Code, as amended by
Republic Act 7659, with the attendant circumstances that the victim
is under eighteen (18) years of age and the offender is the father
of the victim and absent any circumstance that could mitigate the
commission thereof, accused is hereby sentenced to suffer the
supreme penalty of death by lethal injection.
In line with established jurisprudence, said accused is also ordered
to indemnify the offended party Erlanie Rivera in the sum of
P75,000.00 as compensatory damages and P50,000.00 as moral
damages.
646
SO ORDERED.21
Hence, this appeal. Accused-appellant contends that:
1. The lower court failed to observe the constitutional right of the
Accused-Appellant to due process and right to counsel;
2. The lower court failed to consider the evidence of the Accused-
Appellant.22
I. Accused-appellant invokes his right to due process of law. He
claims that he was denied the same because: (a) the trial judge
disallowed his lawyer from cross-examining Erlanie Rivera
concerning the latter’s sworn statements on the ground of
irrelevance and immateriality; (b) the trial court denied the motion
made by accused-appellant’s counsel de oficio to postpone the
cross-examination of Dr. Barin, the examining physician, because
of which the said counsel consequently waived the cross-
examination of Dr. Barin; (c) the judge propounded numerous
questions to accused-appellant during his cross-examination by the
prosecutor; and (d) the trial court’s decision was promulgated just
one day after accused-appellant submitted his memorandum.
Procedural due process simply means that a person must be heard
before he is condemned. The due process requirement is a part of
a person’s basic rights, not a mere formality that may be dispensed
with or performed perfunctorily.23 Considering both the evidence
and the law applicable to this case, we hold that accused-appellant
has been accorded his right to due process.
A. One basis for accused-appellant’s contention that he was denied
due process is the refusal of the trial judge to allow Atty.
Mangalindan’s questions concerning the other alleged acts of
molestation committed by accused-appellant against complainant.
Accused-appellant argues that no legal ground exists for the trial
court’s ruling.
The transcript of stenographic notes concerning this incident shows
the following:
ATTY. MANGALINDAN:
Q You mentioned in your testimony that you were
molested by your father since 1996.
COURT:
Are you referring to a chain of events because police station
you are referring is something there are two places this girl
testified that she was raped, you referred to us Acts of
Lasciviousness and she did not testified about that, that is
another case with another Court, we are only trying here a
rape case that is only they you never mention. Only on the
matters that she testified (sic).
ATTY. MANGALINDAN:
But this is also related to the rape case your Honor because
I will confront it with another form of a question.
ATTY. MANGALINDAN:
Q Prior to this incident, were you molested by your
father?
PROSECUTOR SANTOS:
Immaterial, your Honor, whatever acts w[ere] done by the
accused is not a subject of the case at bar.
COURT:
Let us confine [questioning] to the complaint at bar which
is a rape case.
ATTY. MANGALINDAN:
This is related to the incident because we are here your
Honor to prove, we are trying to discredit her testimony.
We will just direct our question touching on the direct
examination.
COURT:
Only on the matters that she only testified that is only thing
you can cross-examine. Only matters testified which is only
a rape case let us not dwell the Court knows there are other
cases Acts of Lasciviousness pending in the lower Court at
the proper Court otherwise if I will allow you to ask
questions on other matters specially I know you are
pinpointing the Acts of Lasciviousness you are prolonging
this case here (sic).
ATTY. MANGALINDAN:
I am trying to discredit the witness as one where the
credibility as witness here your Honor is very important. I
stated before our main cross-examination is the accused is
not a plan in such case, although I do sympathize (sic). We
would like to propound question that will discredit her as
witness and a complainant not with her testimony alone.
Our center of cross-examination is to discredit her as
complaining witness that is why our question may not be
limited to be accepted under the rule of cross-examination
your Honor the cross-examination your Honor the cross-
examiner is not limited on the direct-testimony of the
witness but he can propound questions which may petition
or destroy the credibility of the witness that is our view point
(sic).
PROSECUTOR SANTOS:
We cannot dispute the right of accused to discredit or to
adopt our credibility of our witness, but it should be done in
the proper way, not to ask immaterial questions which are
not related.
ATTY. MANGALINDAN:
The rule for cross-examination insofar as to destroy the
credibility of the witness is not only limited to what the
Honorable Fiscal we came approach of so many cross-
examinations goes allow your Honor under the rules of
Court insofar as this case is related to the present case we
are trying, this is very related because even the witness I
have transcript in my hand, testified not only the rape case
your Honor she had testified by direct-examination the
preparatory acts before the testimony of rape that she was
been molested early, finger of the father, this were testified
through by the witness, it is here direct-testimony it is not
limited (sic).
PROSECUTOR SANTOS:
Prior to this incident were you molested by your father,
obviously your Honor the question is not relevant.
647
ATTY. MANGALINDAN:
Your Honor please I’m very disagreeable (sic), I have not
with me the transcript but I have read that you [can] ask
questions concerning the rape case.
COURT:
A question referring to events prior to the complaint at
bar.24
The trial court later issued an order, dated December 9, 1997, the
pertinent parts of which provided:
After private complainant testified on direct-examination, counsel
for accused attempted to cross-examine her on matters relevant to
the complaint for Acts of Lasciviousness which was objected to by
Asst. Provincial Prosecutor Arturo G. Santos on the ground that
private complainant did not testify on that matter but limited her
testimony on the rape case only. Counsel for the accused argued
that although that is correct nonetheless because [of] the sworn
statement executed by private complainant identified by said
witness in her direct examination and marked as Exhibit "C" for the
prosecution, he is at liberty to cross-examine the witness on all
matters stated in her sworn statement including that portion
touching on the acts of lasciviousness subject matter of another
case before another court.
The Court sustained the objection. Section 6, Rule 132, Revised
Rules on Evidence provides that "the witness may be cross-
examined by the adverse party as to any matters stated in the
direct examination, or connected therewith, with sufficient fullness
and freedom to test his accuracy and truthfulness and freedom
from interest or bias or the reverse, and to elicit all important facts
bearing upon the issue."
The witness testified only on the rape case. She did not testify
anything about acts of lasciviousness committed upon her person.
She may not therefore be questioned on this matter because it is
not connected with her direct testimony or has any bearing upon
the issue. To allow adverse party to cross-examine the witness on
the acts of lasciviousness which is pending trial in another court
and which the witness did not testify is improper.
Questions concerning acts of lasciviousness will not in any way test
the accuracy and truthfulness and freedom from interest or bias or
the reverse. On the contrary such questions, if allowed, will unduly
burden the court with immaterial testimonies.25
In another order, dated January 13, 1998, the trial court gave
accused-appellant’s counsel 20 days within which to elevate its
ruling to the appellate court.26 The records reveal, however, that
no such petition was filed by Atty. Mangalindan as regards this
particular matter.
The question, therefore, is whether the trial court correctly
disallowed accused-appellant’s counsel from questioning
complainant as regards the other supposed acts of lasciviousness
contained in her sworn statement. On this point, Rule 132, §6 of
the Revised Rules on Evidence provides:
Upon the termination of the direct examination, the witness may
be cross-examined by the adverse party as to any matters stated
in the direct examination, or connected therewith, with sufficient
fullness and freedom to test his accuracy and truthfulness and
freedom from interest, bias or the reverse and to elicit all important
facts bearing upon the issue.
The right of a party to cross-examine a witness is embodied in Art.
III, §14(2) of the Constitution which provides that the accused shall
have the right to meet the witnesses face to face and in Rule 115,
§1(f) of the Revised Rules of Criminal Procedure which states that,
in all criminal prosecutions, the accused shall have the right to
confront and cross-examine the witnesses against him.27 The
cross-examination of a witness is essential to test his or her
credibility, expose falsehoods or half-truths, uncover the truth
which rehearsed direct examination testimonies may successfully
suppress, and demonstrate inconsistencies in substantial matters
which create reasonable doubt as to the guilt of the accused and
thus give substance to the constitutional right of the accused to
confront the witnesses against him.28
The right of the accused to cross-examine a witness is, however,
not without limits but is subject to the rules on the admissibility and
relevance of evidence. Thus, in People v. Zheng Bai Hui,29 this
Court upheld the ruling of the trial judge disallowing the questions
propounded by the accused’s counsel on the ability of the arresting
officer to distinguish between tawas and shabu without
laboratory examination, the academic degree of his training
instructor, and the officer’s authorship of books on drug identity
and analysis for being irrelevant, improper, and impertinent.
In this case, accused-appellant’s counsel argued that his questions
to Erlanie on the other acts of lasciviousness supposedly committed
by accused-appellant against her were for the purpose of testing
her credibility. There was, however, no showing on his part how
these questions had any bearing on complainant’s credibility or on
the truth of her claims. One is led to suspect that the purpose of
these questions was to confuse complainant into committing
mistakes in her answers during cross-examination that accused-
appellant’s counsel could later use to possibly put complainant’s
credibility, not to mention her character, in question.
Accused-appellant insists that his counsel should have been allowed
to ask questions in relation to the sworn statement executed by
complainant. He cites Rule 132, §17 of the Revised Rules of
Evidence which provides that:
When part of an act, declaration, conversation, writing or record is
given in evidence by one party, the whole of the same subject
matter may be inquired into by the other.
Neither can this rule be invoked to justify the questioning of
complainant which the trial court did not allow. As the above
provision states, this rule applies to parts of "an act, declaration,
conversation, writing or record" which is given in evidence.
Indeed, the records show that after Erlanie had finished with her
direct examination on November 25, 1997, the trial judge granted
the motion made by Atty. Anselmo Mangalindan, accused-
appellant’s private counsel, to postpone Erlanie Rivera’s cross-
examination to allow him time to secure copies of the transcript of
stenographic notes of Erlanie’s testimony and thus enable him to
fully question complainant.30 Erlanie was first cross-examined on
December 2, 1997, but several postponements, namely, on
January 13, 1998,31 February 10, 1998,32 March 12, 1998,33 March
31, 1998,34 April 7, 1998,35 May 12, 1998,36 May 26, 1998,37 May
28, 1998,38 and June 11, 1998,39 on Erlanie’s cross-examination
took place because of the failure of Atty. Mangalindan to appear on
the said trial dates. Erlanie’s cross-examination was continued on
July 14, 1998 and July 23, 1998. Her cross-examination by
accused-appellant’s counsel was thorough and covered various
subjects, such as the nature of the relationship between her
parents, who were present during the execution of her sworn
statement, whether the same had been executed by her voluntarily,
the date when she was raped by accused-appellant the reason for
her delay in reporting the rape committed by accused-appellant,
her understanding of Tagalog, who were with her in the house at
the time of the rape, the details surrounding the rape committed
against her, and her age. It is evident that accused-appellant and
his counsel were given ample opportunity to conduct the cross-
examination of Erlanie Rivera in order to test her truthfulness.
B. The record shows that because accused-appellant’s private
counsel was not present when Dr. Barin testified, Atty. Eddie Bansil
was appointed by the trial court as accused-appellant’s counsel de
oficio for that particular hearing. Atty. Bansil moved for the
postponement of the witness’ cross-examination, but the trial court
denied his request because, on the one hand, accused-appellant
was a detention prisoner and Dr. Barin was a very busy person,
while, on the other hand, Atty. Bansil had heard the testimony of
the said witness. Atty. Bansil then decided not to cross-examine Dr.
Barin.40
Accused-appellant now contends that the trial judge denied the
motion of Atty. Bansil for postponement because he was biased
against him. Accused-appellant claims that the counsel de oficio
was not familiar with the facts of his case and was thus in no
position to cross-examine Dr. Barin.
a
While the Constitution recognizes the accused’s right to competent
and independent counsel of his own choice, his option to secure the
services of a private counsel is not absolute. For considering the
State’s and the offended party’s right to speedy and adequate
justice, the court may restrict the accused’s option to retain a
private counsel if the accused insists on an attorney he cannot
afford, or if the chosen counsel is not a member of the bar, or if the
attorney declines to represent the accused for a valid reason.41
The trial court appointed Atty. Bansil a counsel de oficio to
represent accused-appellant on October 6, 1998 because his
regular counsel, Atty. Anselmo Mangalindan, was absent without
any explanation. Atty. Mangalindan had previously been granted
several postponements. As this Court ruled in another case:
. . . Courts are not required to wait indefinitely the pleasure and
convenience of the accused as they are also mandated to promote
the speedy and orderly administration of justice. Nor should they
countenance such an obvious trifling with the rules. Indeed, public
policy requires that the trial continue as scheduled, considering that
appellant was adequately represented by counsels who were not
shown to be negligent, incompetent or otherwise unable to
represent him.42
Atty. Bansil was present and heard the testimony of Dr. Barin, the
prosecution witness, on that day. Dr. Barin’s testimony on direct
examination was simple, containing primarily a discussion of her
findings on the hymenal laceration sustained by complainant. Her
testimony did not require considerable study and extraordinary
preparation on the part of defense counsel for the purpose of cross-
examination. It seems Atty. Bansil no longer found it necessary to
cross-examine Dr. Barin.
Moreover, beyond stating that Dr. Barin was a vital witness,
accused-appellant has not indicated what questions his counsel
wanted to ask from Dr. Barin. It may well be that these questions
do not exist at all and that the importance given by accused-
appellant to counsel de oficio’s failure to cross-examine the witness
is exaggerated. Indeed, a medical examination of the victim,
together with the medical certificate, is merely corroborative and is
not an indispensable element of rape.43 The primordial issue in this
case remains to be whether the complainant’s testimony, not Dr.
Barin’s, established beyond reasonable doubt the crime of rape.
C. Accused-appellant likewise points to the trial judge’s questions
propounded to him during his cross-examination as an indication of
the latter’s partiality for the prosecution.
We find no merit in this contention. Where the trial court is judge
both of the law and of the facts, it is oftentimes necessary in the
due and faithful administration of justice for the presiding judge to
re-examine a witness so that his judgment, when rendered, may
rest upon a full and clear understanding of the facts.44 Our reading
of the transcript of stenographic notes in this case shows that the
trial judge merely wanted to clarify certain points relating to the
defense of accused-appellant and not to establish his guilt. It is a
648
judge’s prerogative to ask questions to ferret out the truth.45 It
cannot be taken against him if the questions he propounds reveals
certain truths which, in turn, tend to destroy the theory of one
party.46 As this Court held:
In any case, a severe examination by a trial judge of some of the
witness for the defense in an effort to develop the truth and to get
at the real facts affords no justification for a charge that he has
assisted the prosecution with an evident desire to secure a
conviction, or that he had intimidated the witnesses for the defense.
The trial judge must be accorded a reasonable leeway in putting
such questions to witnesses as may be essential to elicit relevant
facts to make the record speak the truth. Trial judges in this
jurisdiction are judges of both the law and the facts, and they would
be negligent in the performance of their duties if they permitted a
miscarriage of justice as a result of a failure to propound a proper
question to a witness which might develop some material bearing
upon the outcome. In the exercise of sound discretion, he may put
such question to the witness as will enable him to formulate a sound
opinion as to the ability or the willingness of the witness to tell the
truth. A judge may examine or cross-examine a witness. He may
propound clarificatory questions to test the credibility of the witness
and to extract the truth. He may seek to draw out relevant and
material testimony though that testimony may tend to support or
rebut the position taken by one or the other party. . .47
D. We also find no merit in accused-appellant’s argument that he
was denied due process considering the speed with which the trial
court rendered judgment against him, which judgment was
promulgated one day after he filed his memorandum.
The decision rendered by the trial court gives a clear account of the
facts and the law on which it is based. It discusses in full the court’s
findings on the credibility of both the prosecution and defense
witnesses and its evaluation of the evidence of both parties. What
we said in the analogous case of People v. Mercado48 applies to this
case:
. . . A review of the trial court’s decision shows that its findings
were based on the records of this case and the transcripts of
stenographic notes during the trial. The speed with which the trial
court disposed of the case cannot thus be attributed to the
injudicious performance of its function. Indeed, a judge is not
supposed to study a case only after all the pertinent pleadings have
been filed. It is a mark of diligence and devotion to duty that a
judge studies a case long before the deadline set for the
promulgation of his decision has arrived. The one-day period
between the filing of accused-appellants’ memorandum and the
promulgation of the decision was sufficient time to consider their
arguments and to incorporate these in the decision. As long as the
trial judge does not sacrifice the orderly administration of justice in
favor of a speedy but reckless disposition of a case, he cannot be
taken to task for rendering his decision with due dispatch. . .
II. Coming now to the merits of this case, we find that the evidence
proves beyond reasonable doubt the guilt of accused-appellant. In
reviewing rape cases, we have been guided by the following
principles: (a) An accusation for rape is easy to make, difficult to
prove, and even more difficult to disprove; (b) In view of the
intrinsic nature of the crime, the testimony of the complainant must
be scrutinized with extreme caution; and (c) The evidence for the
prosecution must stand on its own merits and cannot draw strength
from the weakness of the evidence for the defense.49
A. Well-settled is the rule that the lone testimony of a rape victim,
by itself, is sufficient to warrant a judgment of conviction if found
to be credible. It has likewise been established that when a woman
declares that she has been raped she says in effect all that is
necessary to mean that she has been raped, and where her
testimony passes the test of credibility the accused can be
convicted on the basis thereof. This is because from the nature of
the offense, the sole evidence that can usually be offered to
establish the guilt of the accused is the complainant’s testimony.50
649
Considering complainant’s tender age, her shy demeanor, and
manner of testifying in court, the trial court found Erlanie’s
testimony to be straightforward, natural, and convincing and
accorded the same full faith and credit.51
Complainant told the court how she was awakened because
accused-appellant kissed her and fondled her breasts. She narrated
that she tried to resist accused-appellant’s advances by pushing
and kicking him, but the latter succeeded in ravishing her. She told
of how her father threatened to kill her mother and her siblings if
she reported the incident. Despite the lengthy cross-examination of
accused-appellant’s counsel, she remained firm and steadfast in
her story of how she was raped by her father. Her narration not
only rings true and sincere but is consistent and unshaken on its
material points. Complainant’s testimony is fully corroborated by
the medical findings of Dr. Barin who examined complainant shortly
after she had been raped. She found complainant to have suffered
a hymenal laceration at the 3 o’clock position which could have
been caused by the penetration of a hard object, such as a male
organ.
Complainant’s failure to remember the date of the commission of
the rape cannot be taken against her. The exact date when
complainant was sexually abused is not an essential element of the
crime of rape.52 Nor does the fact that complainant was sleeping
beside her sister when the rape occurred detract from her
credibility. The possibility of rape is not negated by the fact that the
presence of even the whole family of the accused inside the same
room produced the possibility of discovery. For rape to be
committed, it is not necessary for the place to be ideal, for rapists
respect neither time nor place for carrying out their evil designs.53
In sum, accused-appellant failed to show any reason why this Court
should disbelieve complainant’s testimony. Indeed, the gravity of
filing a case for incestuous rape is of such a nature that a daughter’s
accusation must be taken seriously. It is against human experience
for a girl to fabricate a story which would drag herself and her family
to a lifetime of dishonor, unless it is the truth. More so when her
charge could mean the execution of her own father, as in this
case.54
Accused-appellant’s counsel on cross-examination made much of
the discrepancy between complainant’s sworn statement where she
stated that accused-appellant slept beside her mother after the
rape55 and her testimony that her mother returned home from the
hospital only the day after the rape took place.56 It must be pointed
out, however, that discrepancies between a witness’ affidavit and
his testimony in open court does not necessarily impair his
credibility. Affidavits, which are taken ex parte, are often
incomplete or inaccurate for lack of or absence of searching
inquiries by the investigating officer.57
Moreover, whether accused-appellant slept alone or with
complainant’s mother after committing the rape of complainant is
of no moment as it is a minor point that does not reflect on the
commission of the crime itself. The rule is that discrepancies and
inconsistencies on minor matters neither impair the essential
integrity of the prosecution evidence as a whole nor reflect on the
witness’ honesty. Such inconsistencies may in fact strengthen
rather than weaken the credibility of the witness as they erase any
suspicion of rehearsed testimony.58
Accused-appellant contends that complainant could not have been
raped on March 1 or 2, 1997, the dates when her sister Zaira was
hospitalized, because she had her last menstrual period on March
3, 1998 and thus she could not have gotten pregnant as a result of
the rape. He argues that a woman who had her monthly period
cannot be impregnated as a result of sexual intercourse five days
before or five days after her last menstruation.59
Accused-appellant does not, however, cite any legal or medical
authority for his thesis, except what he claims to be common
knowledge. On the other hand, we have previously held that it is
hard to ascertain the exact date of fertilization inasmuch as more
than two weeks is considered to be the life span of the spermatozoa
in the vaginal canal.60 Hence, even granting that complainant could
not have been impregnated by accused-appellant during the period
alleged by him, it remains possible for complainant to have gotten
pregnant afterwards. More importantly, it must be emphasized that
pregnancy is not an element of the crime of rape and is, therefore,
totally immaterial to the question of accused-appellant’s guilt.61 In
other words, accused-appellant being the cause of complainant’s
pregnancy is a non-issue in the prosecution of the crime of rape.
What should not be lost sight of is the fact that complainant’s
testimony constitutes proof beyond reasonable doubt that accused-
appellant had carnal knowledge of her without her consent, and
such fully established the crime of rape.
B. Accused-appellant imputes ill motive on the part of
complainant’s mother and her relatives for bringing charges against
him. He claims that complainant’s mother resented the fact that he
used to beat her up out of jealousy and that he had several
paramours in the past. He further asserts that his wife’s relatives
were angry with him because of the land which he caused to be
registered in his name to the prejudice of the latter.
This allegation is without merit. Accused-appellant makes it appear
that complainant’s mother was responsible for the filing of this case
against him. This is not so. For that matter, his wife did not testify
against him. It was his daughter, complainant, alone who
denounced him in court.
Accused-appellant’s claim that the motivation for the filing of this
case was the animosity of his wife’s relatives towards him caused
by his land-grabbing of their land is likewise without any basis. It
may be that his wife’s relatives took advantage of his incarceration
and made him sign his waiver of rights over the land.62 But this
does not necessarily mean they conspired to persecute him. It is
noteworthy that accused-appellant never claimed that the
document which he signed (Exh. 3) existed before the filing of the
criminal complaint against him or that his wife’s relatives fabricated
the charge against him because of his failure to sign the same.
Indeed, what accused-appellant’s defense cannot explain is the
hymenal laceration sustained by complainant or the steadfastness
she has exhibited in pursuing the charge against her own father. It
is doubtful that complainant would let herself be embroiled in a
petty family dispute in exchange for her honor and dignity. We
cannot believe that a young girl, like complainant, would invent a
sordid tale of sexual abuse by accused-appellant unless it was the
truth.63 Where there is no evidence to show a doubtful reason or
improper motive why a prosecution witness should testify against
the accused or falsely implicate him in a crime, her testimony is
trustworthy.64
Accused-appellant also raises the defense of denial and alibi. But
the bare denial of accused-appellant cannot overcome the positive
declarations of complainant. Denial, when unsubstantiated by clear
and convincing evidence, constitutes negative self-serving evidence
which deserves no greater evidentiary value than the testimony of
a credible witness who testified on affirmative matters.65
Accused-appellant’s sister, Concepcion Sayo, testified that
accused-appellant lived with her family in Bulacan at the time of
the rape. No other witness not related to accused-appellant,
however, was called to corroborate her claim. We have already held
that the defense of alibi cannot prosper if it is established mainly
by the accused and his relatives, and not by credible persons. It is
not improbable that these witnesses would freely perjure
themselves for the sake of their loved ones.66 Accused-appellant’s
defense thus fails to convince this Court.
C. The foregoing discussion notwithstanding, we think that the
imposition of the death penalty by the trial court is erroneous. It is
settled that to justify the imposition of the death penalty, both the
relationship of the victim and her age must be alleged and
650
proved.67 Thus, in People v. Javier,68 where the victim was alleged
to be 16 years old at the time of the commission of the rapes, it
was held:
. . . Although the victim’s age was not contested by the defense,
proof of age of the victim is particularly necessary in this case
considering that the victim’s age which was then 16 years old is
just two years less than the majority age of 18. In this age of
modernism, there is hardly any difference between a 16-year old
girl and an 18-year old one insofar as physical features and
attributes are concerned. A physically developed 16-year old lass
may be mistaken for an 18-year old young woman, in the same
manner that a frail and young-looking 18-year old lady may pass
as a 16-year old minor. Thus, it is in this context that independent
proof of the actual age of a rape victim becomes vital and essential
so as to remove an iota of doubt that the victim is indeed under 18
years of age as to fall under the qualifying circumstances
enumerated in Republic Act No. 7659. In a criminal prosecution
especially of cases involving the extreme penalty of death, nothing
but proof beyond reasonable doubt of every fact necessary to
constitute the crime with which an accused is charged must be
established by the prosecution in order for said penalty to be
upheld.
A duly certified certificate of live birth showing complainant’s age,
or some other official document on record, such as a school record,
has been recognized as competent evidence.69
In this case, although complainant’s minority has been alleged in
the information, no independent evidence was presented by the
prosecution to prove the same. Complainant did not even state her
age at the time of the rape during direct examination; it was only
during her cross-examination when she stated that she was 12
years old at the time she was raped by her father.70
Nor was her birth certificate or baptismal certificate or any school
record presented by the prosecution to prove the age of Erlanie at
the time of the rape. Not even her mother, whose testimony could
have been sufficient to prove the age of complainant,71 testified in
this case. What was relied upon by the trial court was that fact that
the age of the victim was undisputed by the defense.72 It also took
judicial notice of the victim’s minority on account of her
appearance.73
We do not agree with this conclusion. The trial court can only take
judicial notice of the victim’s minority when the latter is, for
example, 10 years old or below. Otherwise, the prosecution has the
burden of proving the victim’s age at the time of the rape and the
absence of denial on the part of accused-appellant does not excuse
the prosecution from discharging its burden.74 In a similar
case, People v. Tundag,75 in which the trial court took judicial notice
of the minority of the victim who was alleged to be 13 years old,
we ruled:
In this case, judicial notice of the age of the victim is improper,
despite the defense counsel’s admission, thereof acceding to the
prosecution’s motion. As required by Section 3 of Rule 129, as to
any other matters such as age, a hearing is required before courts
can take judicial notice of such fact. Generally, the age of the victim
may be proven by the birth or baptismal certificate of the victim,
or in the absence thereof, upon showing that said documents were
lost or destroyed, by other documentary or oral evidence sufficient
for the purpose.
The prosecution having failed to present evidence as to
complainant’s age, accused-appellant can be convicted only of
simple rape, for which the penalty is reclusion perpetua.
Consequently, the award of civil indemnity in the amount of
P75,000.00 made by the trial court cannot be sustained. Such
amount can only be awarded if the crime of rape was effectively
qualified by any of the circumstances under which the death penalty
is authorized by the applicable amendatory laws.76 Accordingly, the
civil indemnity awarded to complainant must be reduced to
P50,000.00 in consonance with current rulings.77

The award of moral damages in the amount of P50,000.00 to

complainant is correct. Moral damages is awarded in rape cases
without need of showing that the victim suffered from mental,
physical, and psychological trauma as these are too obvious to
require recital by the victim during trial.78

In addition to the damages given by the trial court, exemplary

damages in the amount of P25,000.00 should likewise be awarded
in favor of complainant. Accused-appellant being the father of
complainant, such relationship can be appreciated as a generic
aggravating circumstance warranting the award of exemplary
damages. In rapes committed by fathers against their daughters,
such award may be imposed to serve as a deterrent to other
parents similarly disposed to commit the same crime.79

WHEREFORE, the decision of the Regional Trial Court, Branch 49,

Guagua, Pampanga, finding accused-appellant guilty of the crime
of rape is AFFIRMED with the modification that accused-appellant
is sentenced to suffer the penalty of reclusion perpetua and to pay
complainant Erlanie Rivera the amount of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P25,000.00 as
exemplary damages.

SO ORDERED.

651
A.M. No. 01-4-03-SC September 13, 2001
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL
IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST
FORMER PRESIDENT JOSEPH E. ESTRADA
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG
MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO
CAYETANO, and ATTY. RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE
PHILIPPINES,oppositors.
RESOLUTION
MENDOZA, J.:
This is a motion for reconsideration of the decision denying
petitioners' request for permission to televise and broadcast live
the trial of former President Estrada before the Sandiganbayan. The
motion was filed by the Secretary of Justice, as one of the
petitioners, who argues that there is really no conflict between the
right of the people to public information and the freedom of the
press, on the one hand, and, on the other, the right of the accused
to a fair trial; that if there is a clash between these rights, it must
be resolved in favor of the right of the people and the press because
the people, as the repository of sovereignty, are entitled to
information; and that live media coverage is a safeguard against
attempts by any party to use the courts as instruments for the
pursuit of selfish interests.
On the other hand, former President Joseph E. Estrada reiterates
his objection to the live TV and radio coverage of his trial on the
ground that its allowance will violate the sub judice rule and that,
based on his experience with the impeachment trial, live media
coverage will only pave the way for so-called "expert commentary"
which can trigger massive demonstrations aimed at pressuring the
Sandiganbayan to render a decision one way or the other. Mr.
Estrada contends that the right of the people to information may
be served through other means less distracting, degrading, and
prejudicial than live TV and radio coverage.1âwphi1.nêt
The Court has considered the arguments of the parties on this
important issue and, after due deliberation, finds no reason to alter
or in any way modify its decision prohibiting live or real time
broadcast by radio or television of the trial of the former president.
By a vote of nine (9) to six (6) of its members,1 the Court denies
the motion for reconsideration of the Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the
vote of eight (8) Justices,2 has resolved to order the audio-visual
recording of the trial.
What follows is the opinion of the majority.lawphil.net
Considering the significance of the trial before the Sandiganbayan
of former President Estrada and the importance of preserving the
records thereof, the Court believes that there should be an audio-
visual recording of the proceedings. The recordings will not be for
live or real time broadcast but for documentary purposes. Only later
will they be available for public showing, after the Sandiganbayan
shall have promulgated its decision in every case to which the
recording pertains. The master film shall be deposited in the
National Museum and the Records Management and Archives Office
for historical preservation and exhibition pursuant to law.4
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement of TV
crews will be regulated, consistent with the dignity and solemnity
of the proceedings. The trial shall be recorded in its entirety, except
such portions thereof as the Sandiganbayan may decide should not
652
be held public pursuant to Rule 119, §21 of the Revised Rules of
Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to
explain certain scenes which are depicted. The audio-visual
recordings shall be made under the supervision and control of the
Sandiganbayan or its Division as the case may be.
There are several reasons for such televised recording.
First, the hearings are of historic significance. They are an
affirmation of our commitment to the rule that "the King is under
no man, but he is under God and the law." (Quod Rex non debet
esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases
involve matters of vital concern to our people who have a
fundamental right to know how their government is conducted. This
right can be enhanced by audio visual presentation. Third, audio-
visual presentation is essential for the education and civic training
of the people.
Above all, there is the need to keep audio-visual records of the
hearings for documentary purposes. The recordings will be useful
in preserving the essence of the proceedings in a way that the cold
print cannot quite do because it cannot capture the sights and
sounds of events. They will be primarily for the use of appellate
courts in the event a review of the proceedings, rulings, or decisions
of the Sandiganbayan is sought or becomes necessary. The
accuracy of the transcripts of stenographic notes taken during the
trial can be checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for
broadcast, concerns that those taking part in the proceedings will
be playing to the cameras and will thus be distracted from the
proper performance of their roles -- whether as counsel, witnesses,
court personnel, or judges -- will be allayed. The possibility that
parallel trials before the bar of justice and the bar of public opinion
may jeopardize, or even prevent, the just determination of the
cases can be minimized. The possibility that judgment will be
rendered by the popular tribunal before the court of justice can
render its own will be avoided.
At the same time, concerns about the regularity and fairness of the
trial -- which, it may be assumed, is the concern of those opposed
to, as much as of those in favor of, televised trials - will be
addressed since the tapes will not be released for public showing
until after the decision of the cases by the Sandiganbayan. By
delaying the release of the tapes, much of the problem posed by
real time TV and radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the
trial can be served by audio-visual recordings without impairing the
right of the accused to a fair trial.
Nor is the right of privacy of the accused a bar to the production of
such documentary. In Ayer Productions Pty. Ltd. V. Capulong,5 this
Court set aside a lower court's injunction restraining the filming of
"Four Day Revolution," a documentary film depicting, among other
things, the role of then Minister of National Defense Juan Ponce
Enrile in the 1986 EDSA people power. This Court held: "A limited
intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him
constitute matters of a public character."6
No one can prevent the making of a movie based on the trial. But,
at least, if a documentary record is made of the proceedings, any
movie that may later be produced can be checked for its accuracy
against such documentary and any attempt to distort the truth can
thus be averted.
Indeed, a somewhat similar proposal for documentary recording of
celebrated cases or causes célèbres was made was made way back
in 1971 by Paul Freund of the Harvard Law School. As he explained:
In fairness let me refer to an American experience many of my lay
friends found similarly moving. An educational television network
filmed a trial in Denver of a Black Panther leader on charges of
resisting arrest, and broadcast the document in full, in four
installments, several months after the case was concluded --
concluded incidentally, with a verdict of acquittal.

No one could witness the trial without a feeling of profound respect

for the painstaking way in which the truth was searched for, for the
ways whereby law copes with uncertainties and ambiguities
through presumptions and burden of proof, and the sense of gravity
with which judge and jury carried out their responsibilities.

I agree in general with the exclusion of television from the

courtroom, for the familiar good reasons. And yet the use of
television at a trial for documentary purposes, not for the broadcast
of live news, and with the safeguards of completeness and consent,
is an educational experiment that I would be prepared to welcome.
Properly safeguarded and with suitable commentary, the depiction
of an actual trial is an agency of enlightenment that could have few
equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our

educational system, is now a desperate need.7

Professor Freund's observation is as valid today as when it was

made thirty years ago. It is perceptive for its recognition of the
serious risks posed to the fair administration of justice by live TV
and radio broadcasts, especially when emotions are running high
on the issues stirred by a case, while at the same time
acknowledging the necessity of keeping audio-visual recordings of
the proceedings of celebrated cases, for public information and
exhibition, after passions have subsided.

WHEREFORE, an audio-visual recording of the trial of former

President Estrada before the Sandiganbayan is hereby ordered to
be made, for the account of the Sandiganbayan, under the following
conditions: (a) the trial shall be recorded in its entirety, excepting
such portions thereof as the Sandiganbayan may determine should
not be held public under Rule 119, §21 of the Rules of Criminal
Procedure; (b) cameras shall be installed inconspicuously inside the
courtroom and the movement of TV crews shall be regulated
consistent with the dignity and solemnity of the proceedings; (c)
the audio-visual recordings shall be made for documentary
purposes only and shall be made without comment except such
annotations of scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the cases
against the former President shall be prohibited under pain of
contempt of court and other sanctions in case of violations of the
prohibition; (e) to ensure that the conditions are observed, the
audio-visual recording of the proceedings shall be made under the
supervision and control of the Sandiganbayan or its Division
concerned and shall be made pursuant to rules promulgated by it;
and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be
deposited in the National Museum and the Records Management
and Archives Office for preservation and exhibition in accordance
with law.

SO ORDERED.

653
G.R. No. 139789. May 12, 2000
ERLINDA K. ILUSORIO, petitioner,
vs.
ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE
and JANE DOE, respondents. Mesm
G.R. No. 139808. May 12, 2000
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and
SYLVIA ILUSORIO, petitioners,
vs.
COURT OF APPEALS and ERLINDA K. ILUSORIO,
respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband
to live with her in conjugal bliss? The answer is no. Marital rights
including coverture and living in conjugal dwelling may not be
enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement
or detention,1 or by which the rightful custody of a person is
withheld from the one entitled thereto.2 Slx
"Habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a
designated time and place, with the day and cause of his capture
and detention, to do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that behalf."3
It is a high prerogative, common-law writ, of ancient origin, the
great object of which is the liberation of those who may be
imprisoned without sufficient cause.4 It is issued when one is
deprived of liberty or is wrongfully prevented from exercising legal
custody over another person.5
The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the
Court of Appeals and its resolution8 dismissing the application for
habeas corpus to have the custody of her husband, lawyer
Potenciano Ilusorio and enforce consortium as the wife.
On the other hand, the petition of Potenciano Ilusorio9 is to annul
that portion of the decision of the Court of Appeals giving Erlinda
K. Ilusorio visitation rights to her husband and to enjoin Erlinda and
the Court of Appeals from enforcing the visitation rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive
property valued at millions of pesos. For many years, lawyer
Potenciano Ilusorio was Chairman of the Board and President of
Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted
matrimony and lived together for a period of thirty (30) years. In
1972, they separated from bed and board for undisclosed reasons.
Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City
when he was in Manila and at Ilusorio Penthouse, Baguio Country
Club when he was in Baguio City. On the other hand, Erlinda lived
in Antipolo City.
654
Out of their marriage, the spouses had six (6) children, namely:
Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo
(age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age
39).
On December 30, 1997, upon Potenciano’s arrival from the United
States, he stayed with Erlinda for about five (5) months in Antipolo
City. The children, Sylvia and Erlinda (Lin), alleged that during this
time, their mother gave Potenciano an overdose of 200 mg instead
of 100 mg Zoloft, an antidepressant drug prescribed by his doctor
in New York, U.S.A. As a consequence, Potenciano’s health
deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court,
Antipolo City a petition10 for guardianship over the person and
property of Potenciano Ilusorio due to the latter’s advanced age,
frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio
City, Potenciano Ilusorio did not return to Antipolo City and instead
lived at Cleveland Condominium, Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition
for habeas corpus to have the custody of lawyer Potenciano
Ilusorio. She alleged that respondents11 refused petitioner’s
demands to see and visit her husband and prohibited Potenciano
from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered
decision the dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment
is hereby rendered:
"(1) Ordering, for humanitarian consideration and upon petitioner’s
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or
anywhere in its place, his guards and Potenciano Ilusorio’s staff
especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorio’s wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be
recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint
or detention of the subject of the petition.
"SO ORDERED."12
Hence, the two petitions, which were consolidated and are herein
jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases
of illegal confinement or detention,13 or by which the rightful
custody of a person is withheld from the one entitled thereto. It is
available where a person continues to be unlawfully denied of one
or more of his constitutional freedoms, where there is denial of due
process, where the restraints are not merely involuntary but are
unnecessary, and where a deprivation of freedom originally valid
has later become arbitrary.14 It is devised as a speedy and effectual
remedy to relieve persons from unlawful restraint, as the best and
only sufficient defense of personal freedom.15 Jksmä â Ó
The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint, and to relieve a
person therefrom if such restraint is illegal.16
To justify the grant of the petition, the restraint of liberty must be
an illegal and involuntary deprivation of freedom of action.17 The
illegal restraint of liberty must be actual and effective, not merely
nominal or moral.18

The evidence shows that there was no actual and effective

detention or deprivation of lawyer Potenciano Ilusorio’s liberty that
would justify the issuance of the writ. The fact that lawyer
Potenciano Ilusorio is about 86 years of age, or under medication
does not necessarily render him mentally incapacitated. Soundness
of mind does not hinge on age or medical condition but on the
capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was
no unlawful restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio

did not request the administrator of the Cleveland Condominium
not to allow his wife and other children from seeing or visiting him.
He made it clear that he did not object to seeing them.

As to lawyer Potenciano Ilusorio’s mental state, the Court of

Appeals observed that he was of sound and alert mind, having
answered all the relevant questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to

make choices. In this case, the crucial choices revolve on his
residence and the people he opts to see or live with. The choices
he made may not appeal to some of his family members but these
are choices which exclusively belong to Potenciano. He made it
clear before the Court of Appeals that he was not prevented from
leaving his house or seeing people. With that declaration, and
absent any true restraint on his liberty, we have no reason to
reverse the findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice,
Potenciano Ilusorio may not be the subject of visitation rights
against his free choice. Otherwise, we will deprive him of his right
to privacy. Needless to say, this will run against his fundamental
constitutional right. Esä m

The Court of Appeals exceeded its authority when it awarded

visitation rights in a petition for habeas corpus where Erlinda never
even prayed for such right. The ruling is not consistent with the
finding of subject’s sanity.

When the court ordered the grant of visitation rights, it also

emphasized that the same shall be enforced under penalty of
contempt in case of violation or refusal to comply. Such assertion
of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve
the right of a parent to visit a minor child but the right of a wife to
visit a husband. In case the husband refuses to see his wife for
private reasons, he is at liberty to do so without threat of any
penalty attached to the exercise of his right.

No court is empowered as a judicial authority to compel a husband

to live with his wife. Coverture cannot be enforced by compulsion
of a writ of habeas corpus carried out by sheriffs or by any other
mesne process. That is a matter beyond judicial authority and is
best left to the man and woman’s free choice.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the

petition for lack of merit. No costs.

In G. R. No. 139808, the Court GRANTS the petition and nullifies

the decision of the Court of Appeals insofar as it gives visitation
rights to respondent Erlinda K. Ilusorio. No costs.

SO ORDERED.

655
G.R. No. 158802 November 17, 2004
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE
VILLA (detained at the New Bilibid Prisons, Muntinlupa City)
JUNE DE VILLA, petitioner-relator,
vs.
THE DIRECTOR, NEW BILIBID PRISONS, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for the issuance of a writ of habeas corpus under
Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined
by his son, petitioner-relator June de Villa, seeks a two-fold relief:
First, that respondent Director of Prisons justify the basis for the
imprisonment of petitioner Reynaldo de Villa; and second, that
petitioner be granted a new trial.1 These reliefs are sought on the
basis of purportedly exculpatory evidence, gathered after
performing deoxyribonucleic acid (DNA) testing on samples
allegedly collected from the petitioner and a child born to the victim
of the rape.
By final judgment dated February 1, 2001, in People of the
Philippines v. Reynaldo de Villa,2 we found petitioner guilty of the
rape of Aileen Mendoza, his niece by affinity; sentenced him to
suffer the penalty of reclusión perpetua; and ordered him to pay
the offended party civil indemnity, moral damages, costs of the
suit, and support for Leahlyn Corales Mendoza, the putative child
born of the rape. Petitioner is currently serving his sentence at the
New Bilibid Prison, Muntinlupa City.
As summarized in our Decision dated February 1, 2001, Aileen
Mendoza charged petitioner Reynaldo de Villa with rape in an
information dated January 9, 1995, filed with the Regional Trial
Court of Pasig City. When arraigned on January 26, 1995, petitioner
entered a plea of "not guilty."3
During the trial, the prosecution established that sometime in the
third week of April 1994, at about 10:00 in the morning, Aileen
Mendoza woke up in her family's rented room in Sagad, Pasig,
Metro Manila, to find petitioner on top of her. Aileen was then aged
12 years and ten months. She was unable to shout for help because
petitioner covered her mouth with a pillow and threatened to kill
her. Aileen could not do anything but cry. Petitioner succeeded in
inserting his penis inside her vagina. After making thrusting
motions with his body, petitioner ejaculated. This encounter
allegedly resulted in Aileen's pregnancy, which was noticed by her
mother, Leonila Mendoza, sometime in November 1994. When
confronted by her mother, Aileen revealed that petitioner raped
her. Aileen's parents then brought her to the Pasig Police Station,
where they lodged a criminal complaint against petitioner.4
Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was
eight months pregnant and found in her hymen healed lacerations
at the 5:00 and 8:00 positions. On December 19, 1994, Aileen gave
birth to a baby girl whom she named Leahlyn Mendoza.5
In his defense, petitioner alleged that, at the time of the alleged
rape, he was already 67 years old. Old age and sickness had
rendered him incapable of having an erection. He further averred
that Aileen's family had been holding a grudge against him, which
accounted for the criminal charges. Finally, he interposed the
defense of alibi, claiming that at the time of the incident, he was in
his hometown of San Luis, Batangas.6
The trial court found petitioner guilty beyond reasonable doubt of
the crime of qualified rape, and sentenced him to death, to
indemnify the victim in the amount of P50,000.00, to pay the costs
of the suit and to support the child, Leahlyn Mendoza.7
656
On automatic review,8 we found that the date of birth of Aileen's
child was medically consistent with the time of the rape. Since it
was never alleged that Aileen gave birth to a full-term nine-month
old baby, we gave credence to the prosecution's contention that
she prematurely gave birth to an eight-month old baby by normal
delivery.9 Thus, we affirmed petitioner's conviction for rape, in a
Decision the dispositive portion of which reads:
WHEREFORE, the judgment of the Regional Trial Court,
finding accused-appellant guilty beyond reasonable doubt
of the crime of rape, is AFFIRMED with the
MODIFICATIONS that he is sentenced to suffer the
penalty of reclusión perpetua and ordered to pay the
offended party P50,000.00 as civil indemnity; P50,000.00
as moral damages; costs of the suit and to provide
support for the child Leahlyn Corales Mendoza.
SO ORDERED.10
Three years after the promulgation of our Decision, we are once
more faced with the question of Reynaldo de Villa's guilt or
innocence.
Petitioner-relator in this case, June de Villa, is the son of Reynaldo.
He alleges that during the trial of the case, he was unaware that
there was a scientific test that could determine once and for all if
Reynaldo was the father of the victim's child, Leahlyn. Petitioner-
relator was only informed during the pendency of the automatic
review of petitioner's case that DNA testing could resolve the issue
of paternity.11 This information was apparently furnished by the
Free Legal Assistance Group (FLAG) Anti-Death Penalty Task Force,
which took over as counsel for petitioner.
Thus, petitioner's brief in People v. de Villa sought the conduct of a
blood type test and DNA test in order to determine the paternity of
the child allegedly conceived as a result of the rape.12 This relief
was implicitly denied in our Decision of February 21, 2001.
On March 16, 2001, Reynaldo de Villa filed a Motion for Partial
Reconsideration of the Decision, wherein he once more prayed that
DNA tests be conducted.13 The Motion was denied with finality in a
Resolution dated November 20, 2001.14 Hence, the Decision
became final and executory on January 16, 2002.15
Petitioner-relator was undaunted by these challenges. Having been
informed that DNA tests required a sample that could be extracted
from saliva, petitioner-relator asked Billy Joe de Villa, a grandson
of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask
Leahlyn to spit into a new, sterile cup.16 Leahlyn readily agreed and
did so. Billy Joe took the sample home and gave it to the petitioner-
relator, who immediately labeled the cup as "Container A."
Petitioner-relator then gathered samples from four grandchildren of
Reynaldo de Villa. These samples were placed in separate
containers with distinguishing labels and temporarily stored in a
refrigerator prior to transport to the DNA Analysis Laboratory at the
National Science Research Institute (NSRI).17 During transport, the
containers containing the saliva samples were kept on ice.
Petitioner-relator requested the NSRI to conduct DNA testing on
the sample given by Leahlyn Mendoza, those given by the
grandchildren of Reynaldo de Villa, and that given by Reynaldo de
Villa himself. The identities of the donors of the samples, save for
the sample given by Reynaldo de Villa, were not made known to
the DNA Analysis Laboratory.18
After testing, the DNA Laboratory rendered a preliminary report on
March 21, 2003, which showed that Reynaldo de Villa could not
have sired any of the children whose samples were tested, due to
the absence of a match between the pertinent genetic markers in
petitioner's sample and those of any of the other samples, including
Leahlyn's.19
Hence, in the instant petition for habeas corpus, petitioner argues
as follows:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY
THAT PETITIONER DE VILLA IS NOT THE FATHER OF
LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED
ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT
OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE
SET ASIDE.20
xxx xxx xxx
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED
EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS
COURT IN VIEW OF THE RESULTS OF THE DNA TESTS
CONDUCTED.21
Considering that the issues are inter-twined, they shall be
discussed together.
In brief, petitioner relies upon the DNA evidence gathered
subsequent to the trial in order to re-litigate the factual issue of the
paternity of the child Leahlyn Mendoza. Petitioner alleges that this
issue is crucial, considering that his conviction in 2001 was based
on the factual finding that he sired the said child. Since this
paternity is now conclusively disproved, he argues that the 2001
conviction must be overturned.
In essence, petitioner invokes the remedy of the writ of habeas
corpus to collaterally attack the 2001 Decision. The ancillary
remedy of a motion for new trial is resorted to solely to allow the
presentation of what is alleged to be newly-discovered evidence.
This Court is thus tasked to determine, first, the propriety of the
issuance of a writ of habeas corpus to release an individual already
convicted and serving sentence by virtue of a final and executory
judgment; and second, the propriety of granting a new trial under
the same factual scenario.
The extraordinary writ of habeas corpus has long been a haven of
relief for those seeking liberty from any unwarranted denial of
freedom of movement. Very broadly, the writ applies "to all cases
of illegal confinement or detention by which a person has been
deprived of his liberty, or by which the rightful custody of any
person has been withheld from the person entitled
thereto".22 Issuance of the writ necessitates that a person be
illegally deprived of his liberty. In the celebrated case of
Villavicencio v. Lukban,23 we stated that "[a]ny restraint which will
preclude freedom of action is sufficient."24
The most basic criterion for the issuance of the writ, therefore, is
that the individual seeking such relief be illegally deprived of his
freedom of movement or placed under some form of illegal
restraint. If an individual's liberty is restrained via some legal
process, the writ of habeas corpus is unavailing. Concomitant to
this principle, the writ of habeas corpus cannot be used to directly
assail a judgment rendered by a competent court or tribunal which,
having duly acquired jurisdiction, was not deprived or ousted of this
jurisdiction through some anomaly in the conduct of the
proceedings.
Thus, notwithstanding its historic function as the great writ of
liberty, the writ of habeas corpus has very limited availability as a
post-conviction remedy. In the recent case of Feria v. Court of
Appeals,25 we ruled that review of a judgment of conviction is
allowed in a petition for the issuance of the writ of habeas corpus
only in very specific instances, such as when, as a consequence of
a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person; (b) the
court had no jurisdiction to impose the sentence; or (c) an
excessive penalty has been imposed, as such sentence is void as to
such excess.26
657
In this instance, petitioner invokes the writ of habeas corpus to
assail a final judgment of conviction, without, however, providing a
legal ground on which to anchor his petition. In fine, petitioner
alleges neither the deprivation of a constitutional right, the absence
of jurisdiction of the court imposing the sentence, or that an
excessive penalty has been imposed upon him.
In fine, petitioner invokes the remedy of habeas corpus in order to
seek the review of findings of fact long passed upon with finality.
This relief is far outside the scope of habeas corpus proceedings. In
the early case of Abriol v. Homeres,27 for example, this Court stated
the general rule that the writ of habeas corpus is not a writ of error,
and should not be thus used. The writ of habeas corpus, whereas
permitting a collateral challenge of the jurisdiction of the court or
tribunal issuing the process or judgment by which an individual is
deprived of his liberty, cannot be distorted by extending the inquiry
to mere errors of trial courts acting squarely within their
jurisdiction.28 The reason for this is explained very simply in the
case of Velasco v. Court of Appeals:29 a habeas corpus petition
reaches the body, but not the record of the case. 30 A record must
be allowed to remain extant, and cannot be revised, modified,
altered or amended by the simple expedient of resort to habeas
corpus proceedings.
Clearly, mere errors of fact or law, which did not have the effect of
depriving the trial court of its jurisdiction over the case and the
person of the defendant, are not correctible in a petition for the
issuance of the writ of habeas corpus; if at all, these errors must
be corrected on certiorari or on appeal, in the form and manner
prescribed by law.31 In the past, this Court has disallowed the
review of a court's appreciation of the evidence in a petition for the
issuance of a writ of habeas corpus, as this is not the function of
said writ.32 A survey of our decisions in habeas corpus cases
demonstrates that, in general, the writ of habeas corpus is a high
prerogative writ which furnishes an extraordinary remedy; it may
thus be invoked only under extraordinary circumstances.33 We have
been categorical in our pronouncements that the writ of habeas
corpus is not to be used as a substitute for another, more proper
remedy. Resort to the writ of habeas corpus is available only in the
limited instances when a judgment is rendered by a court or
tribunal devoid of jurisdiction. If, for instance, it can be
demonstrated that there was a deprivation of a constitutional right,
the writ can be granted even after an individual has been meted a
sentence by final judgment.
Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas
corpus was held to be available where an accused was deprived of
the constitutional right against self-incrimination. A defect so
pronounced as the denial of an accused's constitutional rights
results in the absence or loss of jurisdiction, and therefore
invalidates the trial and the consequent conviction of the accused.
That void judgment of conviction may be challenged by collateral
attack, which precisely is the function of habeas corpus.35 Later, in
Gumabon v. Director of the Bureau of Prisons,36 this Court ruled
that, once a deprivation of a constitutional right is shown to exist,
the court that rendered the judgment is deemed ousted of
jurisdiction and habeas corpus is the appropriate remedy to assail
the legality of the detention.37 Although in Feria v. Court of
Appeals38 this Court was inclined to allow the presentation of new
evidence in a petition for the issuance of a writ of habeas corpus,
this was an exceptional situation. In that case, we laid down the
general rule, which states that the burden of proving illegal
restraint by the respondent rests on the petitioner who attacks such
restraint. Where the return is not subject to exception, that is,
where it sets forth a process which, on its face, shows good ground
for the detention of the prisoner, it is incumbent on petitioner to
allege and prove new matter that tends to invalidate the apparent
effect of such process.39
In the recent case of Calvan v. Court of Appeals,40 we summarized
the scope of review allowable in a petition for the issuance of the
writ of habeas corpus. We ruled that the writ of habeas corpus,
although not designed to interrupt the orderly administration of
justice, can be invoked by the attendance of a special circumstance
that requires immediate action. In such situations, the inquiry on a
writ of habeas corpus would be addressed, not to errors committed
by a court within its jurisdiction, but to the question of whether the
proceeding or judgment under which a person has been restrained
is a complete nullity. The probe may thus proceed to check on the
power and authority, itself an equivalent test of jurisdiction, of the
court or the judge to render the order that so serves as the basis
of imprisonment or detention.41 It is the nullity of an assailed
judgment of conviction which makes it susceptible to collateral
attack through the filing of a petition for the issuance of the writ of
habeas corpus.
Upon a perusal of the records not merely of this case but of People
v. de Villa, we find that the remedy of the writ of habeas corpus is
unavailing.
First, the denial of a constitutional right has not been alleged by
petitioner. As such, this Court is hard-pressed to find legal basis on
which to anchor the grant of a writ of habeas corpus. Much as this
Court sympathizes with petitioner's plea, a careful scrutiny of the
records does not reveal any constitutional right of which the
petitioner was unduly deprived.
We are aware that other jurisdictions have seen fit to grant the writ
of habeas corpus in order to test claims that a defendant was
denied effective aid of counsel.42 In this instance, we note that the
record is replete with errors committed by counsel, and it can be
alleged that the petitioner was, at trial, denied the effective aid of
counsel. The United States Supreme Court requires a defendant
alleging incompetent counsel to show that the attorney's
performance was deficient under a reasonable standard, and
additionally to show that the outcome of the trial would have been
different with competent counsel.43 The purpose of the right to
effective assistance of counsel is to ensure that the defendant
receives a fair trial.44
The U.S. Supreme Court asserts that in judging any claim of
ineffective assistance of counsel, one must examine whether
counsel's conduct undermined the proper functioning of the
adversarial process to such an extent that the trial did not produce
a fair and just result.45 The proper measure of attorney
performance is "reasonable" under the prevailing professional
norms, and the defendant must show that the representation
received fell below the objective standard of reasonableness.46 For
the petition to succeed, the strong presumption that the counsel's
conduct falls within the wide range or reasonable professional
assistance must be overcome.47
In the case at bar, it appears that in the middle of the appeal, the
petitioner's counsel of record, a certain Atty. Alfonso G. Salvador,
suddenly and inexplicably withdrew his appearance as counsel,
giving the sole explanation that he was "leaving for the United
States for an indefinite period of time by virtue of a petition filed in
his favor."48 In the face of this abandonment, petitioner made an
impassioned plea that his lawyer be prevented from this withdrawal
in a handwritten "Urgent Motion for Reconsideration and Opposition
of Counsel's Withdrawal of Appearance with Leave of Court"
received by this Court on September 14, 1999.49 Petitioner alleged
that his counsel's withdrawal is an "untimely and heartbreaking
event", considering that he had placed "all [his] trust and
confidence on [his counsel's] unquestionable integrity and
dignity."50
While we are sympathetic to petitioner's plight, we do not, however,
find that there was such negligence committed by his earlier
counsel so as to amount to a denial of a constitutional right. There
is likewise no showing that the proceedings were tainted with any
other jurisdictional defect.
In fine, we find that petitioner invokes the remedy of the petition
for a writ of habeas corpus to seek a re-examination of the records
of People v. de Villa, without asserting any legal grounds therefor.
For all intents and purposes, petitioner seeks a reevaluation of the
evidentiary basis for his conviction. We are being asked to
658
reexamine the weight and sufficiency of the evidence in this case,
not on its own, but in light of the new DNA evidence that the
petitioner seeks to present to this Court. This relief is outside the
scope of a habeas corpus petition. The petition for habeas corpus
must, therefore, fail.
Coupled with the prayer for the issuance of a writ of habeas corpus,
petitioner seeks a new trial to re-litigate the issue of the paternity
of the child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn Mendoza's paternity
is not central to the issue of petitioner's guilt or innocence. The rape
of the victim Aileen Mendoza is an entirely different question,
separate and distinct from the question of the father of her child.
Recently, in the case of People v. Alberio,51 we ruled that the fact
or not of the victim's pregnancy and resultant childbirth are
irrelevant in determining whether or not she was raped. Pregnancy
is not an essential element of the crime of rape. Whether the child
which the victim bore was fathered by the purported rapist, or by
some unknown individual, is of no moment in determining an
individual's guilt.
In the instant case, however, we note that the grant of child support
to Leahlyn Mendoza indicates that our Decision was based, at least
in small measure, on the victim's claim that the petitioner fathered
her child. This claim was given credence by the trial court, and, as
a finding of fact, was affirmed by this Court on automatic review.
The fact of the child's paternity is now in issue, centrally relevant
to the civil award of child support. It is only tangentially related to
the issue of petitioner's guilt. However, if it can be conclusively
determined that the petitioner did not sire Leahlyn Mendoza, this
may cast the shadow of reasonable doubt, and allow the acquittal
of the petitioner on this basis.
Be that as it may, it appears that the petitioner once more relies
upon erroneous legal grounds in resorting to the remedy of a
motion for new trial. A motion for new trial, under the Revised Rules
of Criminal Procedure, is available only for a limited period of time,
and for very limited grounds. Under Section 1, Rule 121, of the
Revised Rules of Criminal Procedure, a motion for new trial may be
filed at any time before a judgment of conviction becomes final,
that is, within fifteen (15) days from its promulgation or notice.
Upon finality of the judgment, therefore, a motion for new trial is
no longer an available remedy. Section 2 of Rule 121 enumerates
the grounds for a new trial:
SEC. 2. Grounds for a new trial.—The court shall grant a
new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed
during the trial;
(b) That new and material evidence has been discovered
which the accused could not with reasonable diligence
have discovered and produced at the trial and which if
introduced and admitted would probably change the
judgment.
In the case at bar, petitioner anchors his plea on the basis of
purportedly "newly-discovered evidence", i.e., the DNA test
subsequently conducted, allegedly excluding petitioner from the
child purportedly fathered as a result of the rape.
The decision sought to be reviewed in this petition for the issuance
of a writ of habeas corpus has long attained finality, and entry of
judgment was made as far back as January 16, 2002. Moreover,
upon an examination of the evidence presented by the petitioner,
we do not find that the DNA evidence falls within the statutory or
jurisprudential definition of "newly- discovered evidence".
A motion for new trial based on newly-discovered evidence may be
granted only if the following requisites are met: (a) that the
evidence was discovered after trial; (b) that said evidence could
not have been discovered and produced at the trial even with the
exercise of reasonable diligence; (c) that it is material, not merely
cumulative, corroborative or impeaching; and (d) that the evidence
is of such weight that that, if admitted, it would probably change
the judgment.52 It is essential that the offering party exercised
reasonable diligence in seeking to locate the evidence before or
during trial but nonetheless failed to secure it.53

In this instance, although the DNA evidence was undoubtedly

discovered after the trial, we nonetheless find that it does not meet
the criteria for "newly-discovered evidence" that would merit a new
trial. Such evidence disproving paternity could have been
discovered and produced at trial with the exercise of reasonable
diligence.

Petitioner-relator's claim that he was "unaware" of the existence of

DNA testing until the trial was concluded carries no weight with this
Court. Lack of knowledge of the existence of DNA testing speaks of
negligence, either on the part of petitioner, or on the part of
petitioner's counsel. In either instance, however, this negligence is
binding upon petitioner. It is a settled rule that a party cannot
blame his counsel for negligence when he himself was guilty of
neglect.54 A client is bound by the acts of his counsel, including the
latter's mistakes and negligence.55 It is likewise settled that relief
will not be granted to a party who seeks to be relieved from the
effects of the judgment when the loss of the remedy at law was due
to his own negligence, or to a mistaken mode of procedure.56

Even with all of the compelling and persuasive scientific evidence

presented by petitioner and his counsel, we are not convinced that
Reynaldo de Villa is entitled to outright acquittal. As correctly
pointed out by the Solicitor General, even if it is conclusively proven
that Reynaldo de Villa is not the father of Leahlyn Mendoza, his
conviction could, in theory, still stand, with Aileen Mendoza's
testimony and positive identification as its bases.57 The Solicitor
General reiterates, and correctly so, that the pregnancy of the
victim has never been an element of the crime of rape.58 Therefore,
the DNA evidence has failed to conclusively prove to this Court that
Reynaldo de Villa should be discharged. Although petitioner claims
that conviction was based solely on a finding of paternity of the
child Leahlyn, this is not the case. Our conviction was based on the
clear and convincing testimonial evidence of the victim, which,
given credence by the trial court, was affirmed on appeal.

WHEREFORE, in view of the foregoing, the instant petition for

habeas corpus and new trial is DISMISSED for lack of merit.

No costs.

SO ORDERED.

659
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the
rest of the world behind secret walls, they are not separated from
the constitutional protection of their basic rights. The constitution
is an overarching sky that covers all in its protection. The case at
bar involves the rights to life, liberty and security in the first petition
for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules
of Court in relation to Section 191 of the Rule on the Writ
of Amparo, seeking to reverse and set aside on both questions of
fact and law, the Decision promulgated by the Court of Appeals in
C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and
Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines,
respondents."
This case was originally a Petition for Prohibition, Injunction, and
Temporary Restraining Order (TRO)2 filed before this Court by
herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and
agents from depriving them of their right to liberty and other basic
rights. Therein petitioners also sought ancillary remedies,
Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and equitable
reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and
Rule 135, Section 6 of the Rules of Court. In our Resolution dated
August 24, 2007, we (1) ordered the Secretary of the Department
of National Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including but not
limited to the Citizens Armed Forces Geographical Unit (CAFGU) to
submit their Comment; and (2) enjoined them from causing the
arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other
basic rights as guaranteed under Article III, Section 14 of the 1987
Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007. Forthwith, therein
petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They
prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue
the writ commanding therein respondents to make a verified return
within the period provided by law and containing the specific matter
required by law; (3) they be granted the interim reliefs allowed by
the Amparo Rule and all other reliefs prayed for in the petition but
not covered by the Amparo Rule; (4) the Court, after hearing,
render judgment as required in Sec. 187 of the Amparo Rule; and
(5) all other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23,
2007 Petition as a petition under the Amparo Rule and further
resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to
respondents requiring them to file with the CA (Court of
Appeals) a verified written return within five (5) working
days from service of the writ. We REMAND the petition to
the CA and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary hearing on
660
the petition on November 8, 2007 at 2:00 p.m. and decide
the petition in accordance with the Rule on the Writ
of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision
in favor of therein petitioners (herein respondents), the dispositive
portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days
from notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except
those already on file herein;
2. To confirm in writing the present places of official assignment of
M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days
from notice of this decision.
3. To cause to be produced to this Court all medical reports, records
and charts, reports of any treatment given or recommended and
medicines prescribed, if any, to the petitioners, to include a list of
medical and (sic) personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.
The compliance with this decision shall be made under the
signature and oath of respondent AFP Chief of Staff or his duly
authorized deputy, the latter's authority to be express and made
apparent on the face of the sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts
as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two
weeks before February 14, 2006, several uniformed and armed
soldiers and members of the CAFGU summoned to a meeting all the
residents of their barangay in San Idelfonso, Bulacan. Respondents
were not able to attend as they were not informed of the gathering,
but Raymond saw some of the soldiers when he passed by
the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in
Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond,
not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to
the rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then
forcibly brought near the road. He told his mother to follow him,
but three soldiers stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized
brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz,
and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly
taken, he also saw outside of his house two barangaycouncilors,
Pablo Cunanan and Bernardo Lingasa, with some soldiers and
armed men.13
The men forced Raymond into a white L300 van. Once inside, he
was blindfolded. Before being blindfolded, he saw the faces of the
soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario
alias Rollie Castillo, whom he estimated was about 40 years of age
or older. The leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin, curly-haired and a
bit old. Another one of his abductors was "George" who was tall,
thin, white-skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside
the van and made to sit beside Raymond. Both of them were beaten
up. On the road, he recognized the voice of the person beside him
as his brother Reynaldo's. The van stopped several times until they
finally arrived at a house. Raymond and Reynaldo were each
brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother
Reynaldo on the head and other parts of his body with the butt of
their guns for about 15 minutes. After which, Reynaldo was brought
to his (Raymond's) room and it was his (Raymond's) turn to be
beaten up in the other room. The soldiers asked him if he was a
member of the New People's Army. Each time he said he was not,
he was hit with the butt of their guns. He was questioned where his
comrades were, how many soldiers he had killed, and how many
NPA members he had helped. Each time he answered none, they
hit him.15
In the next days, Raymond's interrogators appeared to be high
officials as the soldiers who beat him up would salute them, call
them "sir," and treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their faces when they
arrived and before the blindfold was put on. He noticed that the
uniform of the high officials was different from those of the other
soldiers. One of those officials was tall and thin, wore white pants,
tie, and leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents'
abduction.16 While these officials interrogated him, Raymond was
not manhandled. But once they had left, the soldier guards beat
him up. When the guards got drunk, they also manhandled
respondents. During this time, Raymond was fed only at night,
usually with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while
Raymond was sleeping and beat him up. They doused him with
urine and hot water, hit his stomach with a piece of wood, slapped
his forehead twice with a .45 pistol, punched him on the mouth,
and burnt some parts of his body with a burning wood. When he
could no longer endure the torture and could hardly breathe, they
stopped. They then subjected Reynaldo to the same ordeal in
another room. Before their torturers left, they warned Raymond
that they would come back the next day and kill him.18
The following night, Raymond attempted to escape. He waited for
the guards to get drunk, then made noise with the chains put on
him to see if they were still awake. When none of them came to
check on him, he managed to free his hand from the chains and
jumped through the window. He passed through a helipad and firing
range and stopped near a fishpond where he used stones to break
his chains. After walking through a forested area, he came near a
river and an Iglesia ni Kristo church. He talked to some women who
were doing the laundry, asked where he was and the road to Gapan.
He was told that he was in Fort Magsaysay.19 He reached the
highway, but some soldiers spotted him, forcing him to run away.
The soldiers chased him and caught up with him. They brought him
to another place near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked, and hit with chains
until his back bled. They poured gasoline on him. Then a so-called
"Mam" or "Madam" suddenly called, saying that she wanted to see
Raymond before he was killed. The soldiers ceased the torture and
he was returned inside Fort Magsaysay where Reynaldo was
detained.20
661
For some weeks, the respondents had a respite from all the torture.
Their wounds were treated. When the wounds were almost healed,
the torture resumed, particularly when respondents' guards got
drunk.21
Raymond recalled that sometime in April until May 2006, he was
detained in a room enclosed by steel bars. He stayed all the time
in that small room measuring 1 x 2 meters, and did everything
there, including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22 had been detained in
that bartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms
and a kitchen. One room was made into the bartolina. The house
was near the firing range, helipad and mango trees. At dawn,
soldiers marched by their house. They were also sometimes
detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He
checked their body and eyes, took their urine samples and marked
them. When asked how they were feeling, they replied that they
had a hard time urinating, their stomachs were aching, and they
felt other pains in their body. The next day, two ladies in white
arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They
brought with them the results of respondents' urine test and
advised them to drink plenty of water and take their medicine. The
two ladies returned a few more times. Thereafter, medicines were
sent through the "master" of the DTU, "Master" Del Rosario alias
Carinyoso at Puti. Respondents were kept in the DTU for about two
weeks. While there, he met a soldier named Efren who said that
Gen. Palparan ordered him to monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They,
along with Efren and several other armed men wearing fatigue
suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-
storey house. Hilario and Efren stayed with them. While there,
Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San
Miguel, Bulacan on board the Revo. They were detained in a big
unfinished house inside the compound of "Kapitan" for about three
months. When they arrived in Sapang, Gen. Palparan talked to
them. They were brought out of the house to a basketball court in
the center of the compound and made to sit. Gen. Palparan was
already waiting, seated. He was about two arms' length away from
respondents. He began by asking if respondents felt well already,
to which Raymond replied in the affirmative. He asked Raymond if
he knew him. Raymond lied that he did not. He then asked
Raymond if he would be scared if he were made to face Gen.
Palparan. Raymond responded that he would not be because he did
not believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his
affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo
na ako, di ka ba natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang
pagkakataon na mabuhay, basta't sundin n'yo ang lahat
ng sasabihin ko... sabihin mo sa magulang mo - huwag
pumunta sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon.
Tulungan kami na kausapin si Bestre na sumuko na sa
gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt
they could not do otherwise. At about 3:00 in the morning, Hilario,
Efren and the former's men - the same group that abducted them
- brought them to their parents' house. Raymond was shown to his
parents while Reynaldo stayed in the Revo because he still could
not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were
afraid, Raymond's parents acceded. Hilario threatened Raymond's
parents that if they continued to join human rights rallies, they
would never see their children again. The respondents were then
brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was
about to leave. He was talking with the four "masters" who were
there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan
saw Raymond, he called for him. He was in a big white vehicle.
Raymond stood outside the vehicle as Gen. Palparan told him to
gain back his strength and be healthy and to take the medicine he
left for him and Reynaldo. He said the medicine was expensive at
Php35.00 each, and would make them strong. He also said that
they should prove that they are on the side of the military and
warned that they would not be given another chance.31 During his
testimony, Raymond identified Gen. Palparan by his picture.32
One of the soldiers named Arman made Raymond take the medicine
left by Gen. Palparan. The medicine, named "Alive," was green and
yellow. Raymond and Reynaldo were each given a box of this
medicine and instructed to take one capsule a day. Arman checked
if they were getting their dose of the medicine. The "Alive" made
them sleep each time they took it, and they felt heavy upon waking
up.33
After a few days, Hilario arrived again. He took Reynaldo and left
Raymond at Sapang. Arman instructed Raymond that while in
Sapang, he should introduce himself as "Oscar," a military trainee
from Sariaya, Quezon, assigned in Bulacan. While there, he saw
again Ganata, one of the men who abducted him from his house,
and got acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was brought to
Camp Tecson under the 24th Infantry Battalion. He was fetched by
three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold
was removed. Chains were put on him and he was kept in the
barracks.35
The next day, Raymond's chains were removed and he was ordered
to clean outside the barracks. It was then he learned that he was
in a detachment of the Rangers. There were many soldiers,
hundreds of them were training. He was also ordered to clean inside
the barracks. In one of the rooms therein, he met Sherlyn Cadapan
from Laguna. She told him that she was a student of the University
of the Philippines and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe torture and raped.
She was crying and longing to go home and be with her parents.
During the day, her chains were removed and she was made to do
the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days
from his arrival, two other captives, Karen Empeño and Manuel
Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas,
called "master" or "commander" by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room.
At times, Raymond and Reynaldo were threatened, and Reynaldo
was beaten up. In the daytime, their chains were removed, but
were put back on at night. They were threatened that if they
escaped, their families would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He
told the detainees that they should be thankful they were still alive
and should continue along their "renewed life." Before the hearing
of November 6 or 8, 2006, respondents were brought to their
662
parents to instruct them not to attend the hearing. However, their
parents had already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006
to November 2006, and Raymond was instructed to continue using
the name "Oscar" and holding himself out as a military trainee. He
got acquainted with soldiers of the 24th Infantry Battalion whose
names and descriptions he stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen,
and Manuel, were transferred to a camp of the 24th Infantry
Battalion in Limay, Bataan. There were many huts in the camp.
They stayed in that camp until May 8, 2007. Some soldiers of the
battalion stayed with them. While there, battalion soldiers whom
Raymond knew as "Mar" and "Billy" beat him up and hit him in the
stomach with their guns. Sherlyn and Karen also suffered enormous
torture in the camp. They were all made to clean, cook, and help in
raising livestock.39
Raymond recalled that when "Operation Lubog" was launched,
Caigas and some other soldiers brought him and Manuel with them
to take and kill all sympathizers of the NPA. They were brought to
Barangay Bayan-bayanan, Bataan where he witnessed the killing of
an old man doing kaingin. The soldiers said he was killed because
he had a son who was a member of the NPA and he coddled NPA
members in his house.40 Another time, in another "Operation
Lubog," Raymond was brought to Barangay Orion in a house where
NPA men stayed. When they arrived, only the old man of the house
who was sick was there. They spared him and killed only his son
right before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and
some of his men stayed with them. A retired army soldier was in
charge of the house. Like in Limay, the five detainees were made
to do errands and chores. They stayed in Zambales from May 8 or
9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay.
Raymond, Reynaldo, and Manuel were tasked to bring food to
detainees brought to the camp. Raymond narrated what he
witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog
na kami. Nakita ko si Donald na inaayos ang kanyang
baril, at nilagyan ng silenser. Sabi ni Donald na kung
mayroon man kaming makita o marinig, walang nangyari.
Kinaumagahan, nakita naming ang bangkay ng isa sa
mga bihag na dinala sa kampo. Mayroong binuhos sa
kanyang katawan at ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba
ng mga unipormadong sundalo mula sa 6 x 6 na trak at
dinala sa loob ng kampo. May naiwang mga bakas ng
dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na
dalawang Ita. Itinali sila sa labas ng kubo, piniringan,
ikinadena at labis na binugbog. Nakita kong nakatakas
ang isa sa kanila at binaril siya ng sundalo ngunit hindi
siya tinamaan. Iyong gabi nakita kong pinatay nila iyong
isang Ita malapit sa Post 3; sinilaban ang bangkay at
ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala
sa kampo. Ibinaba ang mga bangkay mula sa pick up
trak, dinala ang mga bangkay sa labas ng bakod.
Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
 May nakilala rin akong 1 retiradong koronel at 1 kasama
niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa
Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni
Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan.
Nakapiring si Manuel, wala siyang suot pang-itaas,
pinosasan. Nilakasan ng mga sundalo ang tunog na galing
sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw
o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang
mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin
kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald.
Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi
ni Donald huwag na raw naming hanapin ang dalawang
babae at si Manuel, dahil magkakasama na yung tatlo.
Sabi pa ni Donald na kami ni Reynaldo ay magbagong
buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi,
hindi na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought
to Pangasinan, ostensibly to raise poultry for Donald (Caigas).
Caigas told respondents to also farm his land, in exchange for
which, he would take care of the food of their family. They were
also told that they could farm a small plot adjoining his land and
sell their produce. They were no longer put in chains and were
instructed to use the names Rommel (for Raymond) and Rod (for
Reynaldo) and represent themselves as cousins from Rizal,
Laguna.44
Respondents started to plan their escape. They could see the
highway from where they stayed. They helped farm adjoining lands
for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond
asked a neighbor how he could get a cellular phone as he wanted
to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They
earned some more until they had saved Php1,400.00 between
them.
There were four houses in the compound. Raymond and Reynaldo
were housed in one of them while their guards lived in the other
three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents' house did not have electricity. They used a
lamp. There was no television, but they had a radio. In the evening
of August 13, 2007, Nonong and his cohorts had a drinking session.
At about 1:00 a.m., Raymond turned up the volume of the radio.
When none of the guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway, leaving behind their
sleeping guards and barking dogs. They boarded a bus bound for
Manila and were thus freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of
Raymond's affidavit insofar as they related to matters they
witnessed together. Reynaldo added that when they were taken
from their house on February 14, 2006, he saw the faces of his
abductors before he was blindfolded with his shirt. He also named
the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape from Fort
Magsaysay, Reynaldo was severely beaten up and told that they
were indeed members of the NPA because Raymond escaped. With
a .45 caliber pistol, Reynaldo was hit on the back and punched in
the face until he could no longer bear the pain.
663
At one point during their detention, when Raymond and Reynaldo
were in Sapang, Reynaldo was separated from Raymond and
brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to represent himself as a
military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought along Reynaldo in his trips. One time, he was brought to a
market in San Jose, del Monte, Bulacan and made to wait in the
vehicle while Hilario was buying. He was also brought to Tondo,
Manila where Hilario delivered boxes of "Alive" in different houses.
In these trips, Hilario drove a black and red vehicle. Reynaldo was
blindfolded while still in Bulacan, but allowed to remove the
blindfold once outside the province. In one of their trips, they
passed by Fort Magsaysay and Camp Tecson where Reynaldo saw
the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents
Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly
cases where torture was involved. He was requested by an NGO to
conduct medical examinations on the respondents after their
escape. He first asked them about their ordeal, then proceeded with
the physical examination. His findings showed that the scars borne
by respondents were consistent with their account of physical
injuries inflicted upon them. The examination was conducted on
August 15, 2007, two days after respondents' escape, and the
results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul
Protocol in conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction
and torture. In compliance with the October 25, 2007 Resolution of
the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado,
disappeared or under the custody by the military. This is a settled
issue laid to rest in the habeas corpus case filed in their behalf by
petitioners' parents before the Court of Appeals in C.A.-G.R. SP No.
94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the
24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander
of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon,
in his capacity as the Commanding General of the Philippine Army,
and members of the Citizens Armed Forces Geographical Unit
(CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela
Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ... On July 4,
2006, the Court of Appeals dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then Commanding General of the
Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S.
Palparan, then Commanding General, 7th Infantry Division,
Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva
Ecija, upon a finding that no evidence was introduced to establish
their personal involvement in the taking of the Manalo brothers. In
a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario
aka Rollie Castillo for lack of evidence establishing his involvement
in any capacity in the disappearance of the Manalo brothers,
although it held that the remaining respondents were illegally
detaining the Manalo brothers and ordered them to release the
latter.48
Attached to the Return of the Writ was the affidavit of therein
respondent (herein petitioner) Secretary of National Defense, which
attested that he assumed office only on August 8, 2007 and was
thus unaware of the Manalo brothers' alleged abduction. He also
claimed that:
7. The Secretary of National Defense does not engage in actual
military directional operations, neither does he undertake
command directions of the AFP units in the field, nor in any way
micromanage the AFP operations. The principal responsibility of the
Secretary of National Defense is focused in providing strategic
policy direction to the Department (bureaus and agencies) including
the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable
Supreme Court in this case, I have directed the Chief of Staff, AFP
to institute immediate action in compliance with Section 9(d) of
the Amparo Rule and to submit report of such compliance...
Likewise, in a Memorandum Directive also dated October 31, 2007,
I have issued a policy directive addressed to the Chief of Staff, AFP
that the AFP should adopt the following rules of action in the event
the Writ of Amparo is issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may aid
in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the
death or disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own
affidavit, attached to the Return of the Writ, attesting that he
received the above directive of therein respondent Secretary of
National Defense and that acting on this directive, he did the
following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units
of the AFP for the purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance of the
petitioners.
3.2. I have caused the immediate investigation and submission of
the result thereof to Higher headquarters and/or direct the
immediate conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on November 05,
2007, addressed to the Commanding General, Philippine Army
(Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the
Radio Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted
or to be conducted by the concerned unit relative to the
circumstances of the alleged disappearance of the persons in whose
favor the Writ of Amparohas been sought for as soon as the same
has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units
relative to another Petition for the Writ of Amparo (G.R. No.
179994) filed at the instance of relatives of a certain Cadapan and
Empeño pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert
earnest efforts to establish the surrounding circumstances of the
disappearances of the petitioners and to bring those responsible,
including any military personnel if shown to have participated or
had complicity in the commission of the complained acts, to the bar
of justice, when warranted by the findings and the competent
evidence that may be gathered in the process.50
664
Also attached to the Return of the Writ was the affidavit of Lt. Col.
Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994,
another Amparo case in this Court, involving Cadapan, Empeño and
Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the
24th Infantry Batallion detachment as detention area, I immediately
went to the 24th IB detachment in Limay, Bataan and found no
untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeño and Manuel Merino being held
captive;
11) There was neither any reports of any death of Manuel Merino
in the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further
inquiries with the Philippine National Police, Limay, Bataan
regarding the alleged detentions or deaths and were informed that
none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged
to be a detention place where Sherlyn Cadapan, Karen Empeño and
Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been used
by armed men to detain Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that for lack of sufficient
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt.
Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission
of the Return and would be subsequently submitted.52
Herein petitioners presented a lone witness in the summary
hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry
Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva
Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the
Commanding General of the 7th Infantry Division, Maj. Gen. Jovito
Palaran,55 through his Assistant Chief of Staff,56 to investigate the
alleged abduction of the respondents by CAFGU auxiliaries under
his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz,
aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza;
ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy
Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative
liability of said auxiliaries, if any.57 Jimenez testified that this
particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news
about the abduction of the Manalo brothers on the television, and
he was concerned about what was happening within his territorial
jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of
having them execute sworn statements and conducting an
investigation on May 29, 2006.59 The investigation started at 8:00
in the morning and finished at 10:00 in the evening.60 The
investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There
were no other sworn statements taken, not even of the Manalo
family, nor were there other witnesses summoned and
investigated61 as according to Jimenez, the directive to him was
only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the
statements.63 The six persons were not known to Jimenez as it was
in fact his first time to meet them.64 During the entire time that he
was beside Lingad, a subordinate of his in the Office of the Provost
Marshall, Jimenez did not propound a single question to the six
persons.65
Jimenez testified that all six statements were taken on May 29,
2006, but Marcelo Mendoza and Rudy Mendoza had to come back
the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified
that the two signed on May 30, 2006, but the jurats of their
statements indicated that they were signed on May 29,
2006.66 When the Sworn Statements were turned over to Jimenez,
he personally wrote his investigation report. He began writing it in
the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He
then gave his report to the Office of the Chief of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated
June 1, 2006 for their evidence, the report is herein substantially
quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were
forcibly disappeared. After the said incident, relatives of the victims
filed a case for Abduction in the civil court against the herein
suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz,
Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged
members of the Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29
May 2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy.
Bohol na Mangga, San Ildefonso, Bulacan doing the concrete
building of a church located nearby his residence, together with
some neighbor thereat. He claims that on 15 February 2006, he
was being informed by Brgy. Kagawad Pablo Umayan about the
abduction of the brothers Raymond and Reynaldo Manalo. As to the
allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that
those who abducted the Manalo brothers are members of the
Military and CAFGU. Subject vehemently denied any participation
or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti
dtd 29 May 2006 in (Exhibit "C") states that he is a resident of Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA
member based at Biak na Bato Detachment, San Miguel, Bulacan.
He claims that Raymond and Reynaldo Manalo being his neighbors
are active members/sympathizers of the CPP/NPA and he also
knows their elder Rolando Manalo @ KA BESTRE of being an NPA
Leader operating in their province. That at the time of the alleged
abduction of the two (2) brothers and for accusing him to be one
of the suspects, he claims that on February 14, 2006, he was one
of those working at the concrete chapel being constructed nearby
his residence. He claims further that he just came only to know
about the incident on other day (15 Feb 06) when he was being
informed by Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the incident and claimed
that they only implicated him because he is a member of the
CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based at
Biak na Bato Detachment. That being a neighbor, he was very much
aware about the background of the two (2) brothers Raymond and
Reynaldo as active supporters of the CPP NPA in their Brgy. and he
also knew their elder brother "KUMANDER BESTRE" TN: Rolando
Manalo. Being one of the accused, he claims that on 14 February
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the
house of his aunt and he learned only about the incident when he
arrived home in their place. He claims further that the only reason
665
why they implicated him was due to the fact that his mother has
filed a criminal charge against their brother Rolando Manalo @ KA
BESTRE who is an NPA Commander who killed his father and for
that reason they implicated him in support of their brother. Subject
CAA vehemently denied any involvement on the abduction of said
Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29,
2006 in (Exhibit "E") states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are
familiar to him being his barriomate when he was still unmarried
and he knew them since childhood. Being one of the accused, he
claims that on 14 February 2006, he was at his residence in Brgy.
Marungko, Angat, Bulacan. He claims that he was being informed
only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members
of the military and CAFGU. The only reason he knows why they
implicated him was because there are those people who are angry
with their family particularly victims of summary execution (killing)
done by their brother @ KA Bestre Rolando Manalo who is an NPA
leader. He claims further that it was their brother @ KA BESTRE
who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May
2006 in (Exhibit "F") states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a
former CAA based at Biak na Bato, San Miguel, Bulacan. He claims
that Raymond and Reynaldo Manalo are familiar to him being their
barrio mate. He claims further that they are active supporters of
CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an
NPA leader. Being one of the accused, he claims that on 14
February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan. That he vehemently denied
any participation of the alleged abduction of the two (2) brothers
and learned only about the incident when rumors reached him by
his barrio mates. He claims that his implication is merely fabricated
because of his relationship to Roman and Maximo who are his
brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May
2006 in (Exhibit "G") states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy.
Tanod and a CAFGU member based at Biak na Bato Detachment,
San Miguel, Bulacan. He claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their barangay for having been
the Tanod Chief for twenty (20) years. He alleged further that they
are active supporters or sympathizers of the CPP/NPA and whose
elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that
on 14 Feb 2006 he was helping in the construction of their concrete
chapel in their place and he learned only about the incident which
is the abduction of Raymond and Reynaldo Manalo when one of the
Brgy. Kagawad in the person of Pablo Cunanan informed him about
the matter. He claims further that he is truly innocent of the
allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that
remains loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this
particular case, the proof of linking them to the alleged abduction
and disappearance of Raymond and Reynaldo Manalo that
transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged
involvement theretofore to that incident is considered doubtful,
hence, no basis to indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in
the past to quote: the killing of the father of Randy and Rudy
Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice
to establish a fact that they were the ones who did the abduction
as a form of revenge. As it was also stated in the testimony of other
accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the
abductors. Being their neighbors and as members of CAFGU's, they
ought to be vigilant in protecting their village from any intervention
by the leftist group, hence inside their village, they were fully aware
of the activities of Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the
alleged charges of abduction committed by the above named
respondents has not been established in this investigation. Hence,
it lacks merit to indict them for any administrative punishment
and/or criminal liability. It is therefore concluded that they are
innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman
dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela
Cruz and Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate
court's assessment of the foregoing evidence and assail the
December 26, 2007 Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN BELIEVING AND GIVING FULL FAITH AND
CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED,
REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY
OF HEREIN RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN
PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE
INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES
OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE
TO BE PRODUCED TO THE COURT OF APPEALS ALL
MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED
AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO
BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL
(MILITARY AND CIVILIAN) WHO ATTENDED TO THEM
FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule
on the Writ of Amparo (Amparo Rule). Let us hearken to its
beginning.
The adoption of the Amparo Rule surfaced as a recurring
proposition in the recommendations that resulted from a two-day
National Consultative Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-17, 2007. The
Summit was "envisioned to provide a broad and fact-based
perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the
666
political and social spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out ways to resolve the
crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in
light of the prevalence of extralegal killing and enforced
disappearances."73 It was an exercise for the first time of the
Court's expanded power to promulgate rules to protect our people's
constitutional rights, which made its maiden appearance in the
1987 Constitution in response to the Filipino experience of the
martial law regime.74 As the Amparo Rule was intended to address
the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to
these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings."75 On the other hand, "enforced
disappearances" are "attended by the following characteristics: an
arrest, detention or abduction of a person by a government official
or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State
to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such
persons outside the protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means
"protection" in Spanish.77 In 1837, de Tocqueville's Democracy in
America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to
many Mexican jurists.78 One of them, Manuel Crescencio Rejón,
drafted a constitutional provision for his native state,
Yucatan,79 which granted judges the power to protect all persons in
the enjoyment of their constitutional and legal rights. This idea was
incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the
Republic in the exercise and preservation of those rights
granted to him by this Constitution and by laws enacted
pursuant hereto, against attacks by the Legislative and
Executive powers of the federal or state governments,
limiting themselves to granting protection in the specific
case in litigation, making no general declaration
concerning the statute or regulation that motivated the
violation.80
Since then, the protection has been an important part of Mexican
constitutionalism.81 If, after hearing, the judge determines that a
constitutional right of the petitioner is being violated, he orders the
official, or the official's superiors, to cease the violation and to take
the necessary measures to restore the petitioner to the full
enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition
which prevails in Mexico. It enables courts to enforce the
constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire
nation.82
The writ of Amparo then spread throughout the Western
Hemisphere, gradually evolving into various forms, in response to
the particular needs of each country.83 It became, in the words of
a justice of the Mexican Federal Supreme Court, one piece of
Mexico's self-attributed "task of conveying to the world's legal
heritage that institution which, as a shield of human dignity, her
own painful history conceived."84 What began as a protection
against acts or omissions of public authorities in violation of
constitutional rights later evolved for several purposes: (1) Amparo
libertad for the protection of personal freedom, equivalent to
the habeas corpus writ; (2) Amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) Amparo casacion for
the judicial review of the constitutionality and legality of a judicial
decision; (4) Amparo administrativo for the judicial review of
administrative actions; and (5) Amparo agrario for the protection
of peasants' rights derived from the agrarian reform process.85
In Latin American countries, except Cuba, the writ of Amparo has
been constitutionally adopted to protect against human rights
abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to
protect the whole gamut of constitutional rights, including socio-
economic rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of the writ
of Amparo only to some constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of Amparo, several of the
above Amparo protections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power "to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." The Clause
accords a similar general protection to human rights extended by
the Amparo contra leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable to the remedy
of habeas corpus found in several provisions of the 1987
Constitution.88 The Clause is an offspring of the U.S. common law
tradition of judicial review, which finds its roots in the 1803 case
of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse
Clause through remedies of injunction or prohibition under Rule 65
of the Rules of Court and a petition for habeas corpus under Rule
102,90 these remedies may not be adequate to address the
pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a
petition for a writ of Amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law and civil law
traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to
extralegal killings and enforced disappearances and threats
thereof. The remedy provides rapid judicial relief as it partakes of
a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an
action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance
of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings.91
The writ of Amparo serves both preventive and curative roles in
addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is curative in that
it facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for
"Prohibition, Injunction, and Temporary Restraining Order"92 to
stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August
23, 2007,93 prior to the promulgation of the Amparo Rule. They
also sought ancillary remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and Access Orders and
other legal and equitable remedies under Article VIII, Section 5(5)
of the 1987 Constitution and Rule 135, Section 6 of the Rules of
Court. When the Amparo Rule came into effect on October 24,
2007, they moved to have their petition treated as
an Amparo petition as it would be more effective and suitable to
the circumstances of the Manalo brothers' enforced disappearance.
The Court granted their motion.
With this backdrop, we now come to the arguments of the
petitioner. Petitioners' first argument in disputing the Decision of
the Court of Appeals states, viz:
667
The Court of Appeals seriously and grievously erred in
believing and giving full faith and credit to the incredible
uncorroborated, contradicted, and obviously scripted,
rehearsed and self-serving affidavit/testimony of herein
respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and
refine the ore of petitioners' cause of action, to determine whether
the evidence presented is metal-strong to satisfy the degree of
proof required.
Section 1 of the Rule on the Writ of Amparo provides for the
following causes of action, viz:
Section 1. Petition. - The petition for a writ of Amparo is
a remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (emphasis
supplied)
Sections 17 and 18, on the other hand, provide for the degree of
proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence
Required. - The parties shall establish their claims
by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the
petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs
as may be proper and appropriate; otherwise, the
privilege shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.95
After careful perusal of the evidence presented, we affirm the
findings of the Court of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His
account is dotted with countless candid details of respondents'
harrowing experience and tenacious will to escape, captured
through his different senses and etched in his memory. A few
examples are the following: "Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal,
narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga
bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan
kung saan ginamit ko ang bato para tanggalin ang mga
kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang
babae na nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate court, largely based
on respondent Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were
sufficiently identified by the petitioners (herein
respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men who
barged into his house through the rear door were military
men based on their attire of fatigue pants and army boots,
and the CAFGU auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula de la Cruz,
all members of the CAFGU and residents of Muzon, San
Ildefonso, Bulacan, and the brothers Randy Mendoza and
Rudy Mendoza, also CAFGU members, served as lookouts
during the abduction. Raymond was sure that three of the
six military men were Ganata, who headed the abducting
team, Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as narrated
by the petitioners, validated their assertion of the
participation of the elements of the 7th Infantry Division,
Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction
was the suspicion that the petitioners were either
members or sympathizers of the NPA, considering that
the abductors were looking for Ka Bestre, who turned out
to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into
the abduction were, at best, merely superficial. The
investigation of the Provost Marshall of the 7th Infantry
Division focused on the one-sided version of the CAFGU
auxiliaries involved. This one-sidedness might be due to
the fact that the Provost Marshall could delve only into
the participation of military personnel, but even then the
Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily
investigated...
Gen. Palparan's participation in the abduction was also
established. At the very least, he was aware of the
petitioners' captivity at the hands of men in uniform
assigned to his command. In fact, he or any other officer
tendered no controversion to the firm claim of Raymond
that he (Gen. Palparan) met them in person in a
safehouse in Bulacan and told them what he wanted them
and their parents to do or not to be doing. Gen. Palparan's
direct and personal role in the abduction might not have
been shown but his knowledge of the dire situation of the
petitioners during their long captivity at the hands of
military personnel under his command bespoke of his
indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without
due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former
Special Sixth Division (Justices Buzon, chairman;
Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had
anything to do with the abduction or the detention.
Hilario's involvement could not, indeed, be then
established after Evangeline Francisco, who allegedly saw
Hilario drive the van in which the petitioners were boarded
and ferried following the abduction, did not testify. (See
the decision of the habeas proceedings at rollo, p. 52)
where the petitioners came face to face with Gen.
Palparan. Hilario and Efren also brought the petitioners
one early morning to the house of the petitioners' parents,
where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join
anymore rallies. On that occasion, Hilario warned the
parents that they would not again see their sons should
they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among
four Master Sergeants (the others being Arman, Ganata
and Cabalse) with whom Gen. Palparan conversed on the
occasion when Gen. Palparan required Raymond to take
the medicines for his health. (Exhibit D, rollo, p. 206)
There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the
abduction and forced disappearance of the petitioners was
established. The participation of other military personnel
like Arman, Ganata, Cabalse and Caigas, among others,
was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them
personally involved in the abduction. We also do, for,
indeed, the evidence of their participation is
overwhelming.101
We reject the claim of petitioners that respondent Raymond
Manalo's statements were not corroborated by other independent
and credible pieces of evidence.102 Raymond's affidavit and
testimony were corroborated by the affidavit of respondent
Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by
the physical injuries inflicted on respondents,103 also corroborate
respondents' accounts of the torture they endured while in
detention. Respondent Raymond Manalo's familiarity with the
facilities in Fort Magsaysay such as the "DTU," as shown in his
testimony and confirmed by Lt. Col. Jimenez to be the "Division
Training Unit,"104 firms up respondents' story that they were
detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American
Commission on Human Rights, the Commission considered similar
evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was kidnapped and tortured
in early November 1989. The Commission's findings of fact were
mostly based on the consistent and credible statements, written
and oral, made by Sister Ortiz regarding her ordeal.106 These
statements were supported by her recognition of portions of the
route they took when she was being driven out of the military
installation where she was detained.107 She was also examined by
a medical doctor whose findings showed that the 111 circular
second degree burns on her back and abrasions on her cheek
coincided with her account of cigarette burning and torture she
suffered while in detention.108

With the secret nature of an enforced disappearance and the torture

However, in this case, Raymond attested that Hilario
perpetrated on the victim during detention, it logically holds that
drove the white L-300 van in which the petitioners were
much of the information and evidence of the ordeal will come from
brought away from their houses on February 14, 2006.
the victims themselves, and the veracity of their account will
Raymond also attested that Hilario participated in
depend on their credibility and candidness in their written and/or
subsequent incidents during the captivity of the
oral statements. Their statements can be corroborated by other
petitioners, one of which was when Hilario fetched them
evidence such as physical evidence left by the torture they suffered
from Fort Magsaysay on board a Revo and conveyed them
or landmarks they can identify in the places where they were
to a detachment in Pinaud, San Ildefonso, Bulacan where
detained. Where powerful military officers are implicated, the
they were detained for at least a week in a house of strong
hesitation of witnesses to surface and testify against them comes
materials (Exhibit D, rollo, p. 205) and then Hilario (along
as no surprise.
with Efren) brought them to Sapang, San Miguel, Bulacan
on board the Revo, to an unfinished house inside the
compound of Kapitan where they were kept for more or We now come to the right of the respondents to the privilege of the
less three months. (Exhibit D, rollo, p. 205) It was there writ of Amparo. There is no quarrel that the enforced disappearance

668
of both respondents Raymond and Reynaldo Manalo has now
passed as they have escaped from captivity and surfaced. But while
respondents admit that they are no longer in detention and are
physically free, they assert that they are not "free in every sense
of the word"109 as their "movements continue to be restricted for
fear that people they have named in their Judicial Affidavits and
testified against (in the case of Raymond) are still at large and have
not been held accountable in any way. These people are directly
connected to the Armed Forces of the Philippines and are, thus, in
a position to threaten respondents' rights to life, liberty and
security."110 (emphasis supplied) Respondents claim that they are
under threat of being once again abducted, kept captive or
even killed, which constitute a direct violation of their right to
security of person.111
Elaborating on the "right to security, in general," respondents
point out that this right is "often associated with liberty;" it is also
seen as an "expansion of rights based on the prohibition against
torture and cruel and unusual punishment." Conceding that there
is no right to security expressly mentioned in Article III of the 1987
Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention
places112 fall under the general coverage of the right to security of
person under the writ of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of
person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, "The State values the dignity of
every human person and guarantees full respect for human rights."
Finally, to justify a liberal interpretation of the right to security of
person, respondents cite the teaching in Moncupa v. Enrile113 that
"the right to liberty may be made more meaningful only if there is
no undue restraint by the State on the exercise of that
liberty"114 such as a requirement to "report under unreasonable
restrictions that amounted to a deprivation of liberty"115 or being
put under "monitoring and surveillance."116
In sum, respondents assert that their cause of action consists in
the threat to their right to life and liberty, and a violation of
their right to security.
Let us put this right to security under the lens to determine
if it has indeed been violated as respondents
assert. The right to security or the right to security of
person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge...
At the core of this guarantee is the immunity of one's person,
including the extensions of his/her person - houses, papers, and
effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person
himself.117 The purpose of this provision was enunciated by the
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee against
unreasonable searches and seizures is to prevent
violations of private security in person and property and
unlawful invasion of the security of the home by officers
of the law acting under legislative or judicial sanction and
to give remedy against such usurpation when attempted.
(Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76
Phil. 637 [1946]). The right to privacy is an essential
condition to the dignity and happiness and to the
peace and security of every individual, whether it
be of home or of persons and correspondence.
(Tañada and Carreon, Political Law of the Philippines, Vol.
669
2, 139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable searches
and seizures must be deemed absolute as nothing is
closer to a man's soul than the serenity of his
privacy and the assurance of his personal security.
Any interference allowable can only be for the best causes
and reasons.119 (emphases supplied)
While the right to life under Article III, Section 1120 guarantees
essentially the right to be alive121 - upon which the enjoyment of
all other rights is preconditioned - the right to security of person is
a guarantee of the secure quality of this life, viz: "The life to which
each person has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful ruler. Rather,
it is a life lived with the assurance that the government he
established and consented to, will protect the security of his person
and property. The ideal of security in life and property... pervades
the whole history of man. It touches every aspect of man's
existence."122 In a broad sense, the right to security of person
"emanates in a person's legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his reputation. It includes
the right to exist, and the right to enjoyment of life while existing,
and it is invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life according to
the nature, temperament, and lawful desires of the individual."123
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is "freedom from
fear." In its "whereas" clauses, the Universal Declaration of
Human Rights (UDHR) enunciates that "a world in which human
beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the
common people." (emphasis supplied) Some scholars postulate
that "freedom from fear" is not only an aspirational principle, but
essentially an individual international human right.124 It is the "right
to security of person" as the word "security" itself means "freedom
from fear."125 Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of
person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political
Rights (ICCPR) also provides for the right to security of
person, viz:
1. Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure
as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear"
is the right and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by
the same stimulus can range from being baseless to well-founded
as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their
imagination, strength of character or past experience with the
stimulus. Thus, in the Amparo context, it is more correct to say that
the "right to security" is actually the "freedom from
threat." Viewed in this light, the "threatened with violation" Clause
in the latter part of Section 1 of the Amparo Rule is a form of
violation of the right to security mentioned in the earlier part of the
provision.127
Second, the right to security of person is a guarantee of
bodily and psychological integrity or security. Article III,
Section II of the 1987 Constitution guarantees that, as a general
rule, one's body cannot be searched or invaded without a search
warrant.128 Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search
or invasion of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of physical
injury increases, the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against persons
because they are an affront to the bodily integrity or security of a
person.129
Physical torture, force, and violence are a severe invasion of bodily
integrity. When employed to vitiate the free will such as to force
the victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as
the dignity of the human person includes the exercise of free will.
Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or
any other means which vitiate the free will shall be used
against him (any person under investigation for the
commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of
detention are prohibited.
Parenthetically, under this provision, threat and intimidation that
vitiate the free will - although not involving invasion of bodily
integrity - nevertheless constitute a violation of the right to security
in the sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing
abuses of persons under investigation for the commission of an
offense. Victims of enforced disappearances who are not even
under such investigation should all the more be protected from
these degradations.
An overture to an interpretation of the right to security of person
as a right against torture was made by the European Court of
Human Rights (ECHR) in the recent case of Popov v. Russia.130 In
this case, the claimant, who was lawfully detained, alleged that the
state authorities had physically abused him in prison, thereby
violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: "Everyone has the right
to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a
procedure prescribed by law ..." (emphases supplied) Article 3, on
the other hand, provides that "(n)o one shall be subjected to torture
or to inhuman or degrading treatment or punishment." Although
the application failed on the facts as the alleged ill-treatment was
found baseless, the ECHR relied heavily on the concept of security
in holding, viz:
...the applicant did not bring his allegations to the
attention of domestic authorities at the time when they
could reasonably have been expected to take measures
in order to ensure his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody
or to comply with the procedural obligation under Art.3 to
conduct an effective investigation into his
allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against
Women has also made a statement that the protection of the bodily
integrity of women may also be related to the right to security and
liberty, viz:
670
...gender-based violence which impairs or nullifies the
enjoyment by women of human rights and fundamental
freedoms under general international law or under
specific human rights conventions is discrimination within
the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against
Women). These rights and freedoms include . . . the right
to liberty and security of person.132
Third, the right to security of person is a guarantee of
protection of one's rights by the government. In the context
of the writ of Amparo, this right is built into the guarantees of
the right to life and liberty under Article III, Section 1 of the
1987 Constitution and the right to security of person (as
freedom from threat and guarantee of bodily and psychological
integrity) under Article III, Section 2. The right to security of person
in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section
11 of the 1987 Constitution.133 As the government is the chief
guarantor of order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered ineffective
if government does not afford protection to these rights especially
when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus
to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,134viz:
(The duty to investigate) must be undertaken in a
serious manner and not as a mere formality
preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its
own legal duty, not as a step taken by private
interests that depends upon the initiative of the
victim or his family or upon their offer of proof, without
an effective search for the truth by the government.135
This third sense of the right to security of person as a guarantee of
government protection has been interpreted by the United Nations'
Human Rights Committee136 in not a few cases involving Article
9137 of the ICCPR. While the right to security of person appears in
conjunction with the right to liberty under Article 9, the Committee
has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need
not necessarily be a deprivation of liberty for the right to security
of person to be invoked. In Delgado Paez v. Colombia,138 a case
involving death threats to a religion teacher at a secondary school
in Leticia, Colombia, whose social views differed from those of the
Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate
paragraph. Its location as a part of paragraph one could
lead to the view that the right to security arises only in
the context of arrest and detention. The travaux
préparatoires indicate that the discussions of the first
sentence did indeed focus on matters dealt with in the
other provisions of article 9. The Universal Declaration
of Human Rights, in article 3, refers to the right to
life, the right to liberty and the right to security of
the person. These elements have been dealt with in
separate clauses in the Covenant. Although in the
Covenant the only reference to the right of security
of person is to be found in article 9, there is no
evidence that it was intended to narrow the concept
of the right to security only to situations of formal
deprivation of liberty. At the same time, States
parties have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the case
that, as a matter of law, States can ignore known
threats to the life of persons under their
jurisdiction, just because that he or she is not
arrested or otherwise detained. States parties are
under an obligation to take reasonable and
 appropriate measures to protect them. An
interpretation of article 9 which would allow a State
party to ignore threats to the personal security of
non-detained persons within its jurisdiction would
render totally ineffective the guarantees of the
Covenant.139(emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which
involved a political activist and prisoner of conscience who
continued to be intimidated, harassed, and restricted in his
movements following his release from detention. In a catena of
cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,141 involving
discrimination, intimidation and persecution of opponents of the
ruling party in that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of
democratic reform in Zaire; Dias v. Angola,143 involving the
murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the
murder; and Chongwe v. Zambia,144 involving an assassination
attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has
interpreted the "right to security" not only as prohibiting the State
from arbitrarily depriving liberty, but imposing a positive duty on
the State to afford protection of the right to liberty.145 The ECHR
interpreted the "right to security of person" under Article 5(1) of
the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case,
the claimant's son had been arrested by state authorities and had
not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant
suggested that this was a violation of her son's right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been
effected in conformity with the substantive and
procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having
assumed control over that individual it is incumbent on
the authorities to account for his or her whereabouts. For
this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard
against the risk of disappearance and to conduct a
prompt effective investigation into an arguable
claim that a person has been taken into custody and
has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to
the case at bar, we now determine whether there is a continuing
violation of respondents' right to security.
First, the violation of the right to security as freedom from
threat to respondents' life, liberty and security.
While respondents were detained, they were threatened that if they
escaped, their families, including them, would be killed. In
Raymond's narration, he was tortured and poured with gasoline
after he was caught the first time he attempted to escape from Fort
Magsaysay. A call from a certain "Mam," who wanted to see him
before he was killed, spared him.
This time, respondents have finally escaped. The condition of the
threat to be killed has come to pass. It should be stressed that they
are now free from captivity not because they were released by
virtue of a lawful order or voluntarily freed by their abductors. It
ought to be recalled that towards the end of their ordeal, sometime
in June 2007 when respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that they were still
deciding whether they should be executed. Respondent Raymond
Manalo attested in his affidavit, viz:
671
Kinaumagahan, naka-kadena pa kami. Tinanggal ang
mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin
kami o hindi.148
The possibility of respondents being executed stared them in the
eye while they were in detention. With their escape, this continuing
threat to their life is apparent, moreso now that they have surfaced
and implicated specific officers in the military not only in their own
abduction and torture, but also in those of other persons known to
have disappeared such as Sherlyn Cadapan, Karen Empeño, and
Manuel Merino, among others.
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the
threat to their life, liberty and security. The threat vitiates their free
will as they are forced to limit their movements or
activities.149 Precisely because respondents are being shielded from
the perpetrators of their abduction, they cannot be expected to
show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents' abduction,
detention, torture and escape reasonably support a conclusion that
there is an apparent threat that they will again be abducted,
tortured, and this time, even executed. These constitute threats to
their liberty, security, and life, actionable through a petition for a
writ of Amparo.
Next, the violation of the right to security as protection by
the government. Apart from the failure of military elements to
provide protection to respondents by themselves perpetrating the
abduction, detention, and torture, they also miserably failed in
conducting an effective investigation of respondents' abduction as
revealed by the testimony and investigation report of petitioners'
own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the
7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited,
superficial, and one-sided. He merely relied on the Sworn
Statements of the six implicated members of the CAFGU and
civilians whom he met in the investigation for the first time. He was
present at the investigation when his subordinate Lingad was taking
the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did
not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested
that in a Memorandum Directive dated October 31, 2007, he issued
a policy directive addressed to the AFP Chief of Staff, that the AFP
should adopt rules of action in the event the writ of Amparo is
issued by a competent court against any members of the AFP,
which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence;
identification of witnesses and securing statements from them;
determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or
persons involved in the death or disappearance; and bringing of the
suspected offenders before a competent court.150 Petitioner AFP
Chief of Staff also submitted his own affidavit attesting that he
received the above directive of respondent Secretary of National
Defense and that acting on this directive, he immediately caused to
be issued a directive to the units of the AFP for the purpose of
establishing the circumstances of the alleged disappearance and
the recent reappearance of the respondents, and undertook to
provide results of the investigations to respondents.151 To this day,
however, almost a year after the policy directive was issued by
petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the
investigation which they now seek through the instant petition for
a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant
the conclusion that there is a violation of respondents' right to
security as a guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom
from threat" is violated by the apparent threat to their life, liberty
and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective
investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals,
which petitioners question.
involved in the action and which are in his
possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the
respondent judge, under authority of Rule 27, issued a subpoena
duces tecum for the production and inspection of among others,
the books and papers of Material Distributors (Phil.) Inc. The
company questioned the issuance of the subpoena on the ground
that it violated the search and seizure clause. The Court struck
down the argument and held that the subpoena pertained to a civil
procedure that "cannot be identified or confused with unreasonable
searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself

First, that petitioners furnish respondents all official and
unofficial reports of the investigation undertaken in connection
with their case, except those already in file with the court.
Second, that petitioners confirm in writing the present places
of official assignment of M/Sgt. Hilario aka Rollie Castillo
and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals
all medical reports, records and charts, and reports of any
treatment given or recommended and medicines prescribed,
if any, to the Manalo brothers, to include a list of medical
personnel (military and civilian) who attended to them from
February 14, 2006 until August 12, 2007.
undertook "to provide results of the investigations conducted or to
be conducted by the concerned unit relative to the circumstances
of the alleged disappearance of the persons in whose favor the Writ
of Amparo has been sought for as soon as the same has been
furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert
that the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, as well as the
submission of a list of medical personnel, is irrelevant, improper,
immaterial, and unnecessary in the resolution of the petition for a
writ of Amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military
officers and even unwittingly and unnecessarily expose them to
threat of personal injury or even death.

With respect to the first and second reliefs, petitioners argue

that the production order sought by respondents partakes of the On the contrary, the disclosure of the present places of assignment
characteristics of a search warrant. Thus, they claim that the of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom
requisites for the issuance of a search warrant must be complied respondents both directly implicated as perpetrators behind their
with prior to the grant of the production order, namely: (1) the abduction and detention, is relevant in ensuring the safety of
application must be under oath or affirmation; (2) the search respondents by avoiding their areas of territorial jurisdiction. Such
warrant must particularly describe the place to be searched and the disclosure would also help ensure that these military officers can be
things to be seized; (3) there exists probable cause with one served with notices and court processes in relation to any
specific offense; and (4) the probable cause must be personally investigation and action for violation of the respondents' rights. The
determined by the judge after examination under oath or list of medical personnel is also relevant in securing information to
affirmation of the complainant and the witnesses he may create the medical history of respondents and make appropriate
produce.152 In the case at bar, however, petitioners point out that medical interventions, when applicable and necessary.
other than the bare, self-serving and vague allegations made by
respondent Raymond Manalo in his unverified declaration and
In blatant violation of our hard-won guarantees to life, liberty and
affidavit, the documents respondents seek to be produced are only
security, these rights are snuffed out from victims of extralegal
mentioned generally by name, with no other supporting details.
killings and enforced disappearances. The writ of Amparo is a tool
They also argue that the relevancy of the documents to be
that gives voice to preys of silent guns and prisoners behind secret
produced must be apparent, but this is not true in the present case
walls.
as the involvement of petitioners in the abduction has not been
shown.
WHEREFORE, premises considered, the petition is DISMISSED.
The Decision of the Court of Appeals dated December 26, 2007 is
Petitioners' arguments do not hold water. The production order
affirmed.
under the Amparo Rule should not be confused with a search
warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the SO ORDERED.
people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such
as respondents.

Instead, the Amparo production order may be likened to the

production of documents or things under Section 1, Rule 27 of the
Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause

therefor, the court in which an action is pending
may (a) order any party to produce and permit
the inspection and copying or photographing, by
or on behalf of the moving party, of any
designated documents, papers, books of
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
672
G.R. Nos. 184379-80 April 24, 2012
RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO
LOZADA, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO
ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4
ROGER VALEROSO,* Respondents.
DECISION
SERENO, J.:
What the Court decides today has nothing to do with the substance
or merits surrounding the aborted deal of the Philippine
government with the National Broadband Network and ZTE
Corporation, or any allegation of petitioner Rodolfo Noel "June"
Lozada, Jr., (Lozada) regarding the same. There is only one issue
that we decide today – whether circumstances are adequately
alleged and proven by petitioner Lozada to entitle him to the
protection of the writ of amparo. Before us is a Petition for Review
on Certiorari of the Decision dated 12 September 2008 of the Court
of Appeals (CA), dismissing the Petition for the Issuance of a Writ
of Amparo.1
Petitioner Lozada was the former President and Chief Executive
Officer of the Philippine Forest Corporation (PFC), a government-
owned- and -controlled corporation under the Department of
Environment and Natural Resources (DENR).2 Petitioner Violeta
Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo)
is his brother.
At the time the Petition for the Writ of Amparo was filed, respondent
former President Gloria Macapagal Arroyo (former President
Arroyo) was the incumbent President of the Philippines. Meanwhile,
Eduardo Ermita (ES Ermita) was then the Executive Secretary;
Avelino Razon (Razon), the Director General of the Philippine
National Police (PNP); Angel Atutubo (Atutubo), the Assistant
General Manager for Security and Emergency Services of the Manila
International Airport Authority; and Rodolfo Valeroso (Valeroso),
an agent of the Aviation Security Group (ASG) of the PNP.
Antecedent Facts
The instant Petition stems from the alleged corruption scandal
precipitated by a transaction between the Philippine government,
represented by the National Broadband Network (NBN), and ZTE
Corporation (ZTE), a Chinese manufacturer of telecommunications
equipment.3 Former National Economic Development Authority
(NEDA) Secretary Romulo Neri (Sec. Neri) sought the services of
Lozada as an unofficial consultant in the ZTE-NBN deal.4 The latter
avers that during the course of his engagement, he discovered
several anomalies in the said transaction involving certain public
officials.5 These events impelled the Senate of the Philippines Blue
Ribbon Committee (Blue Ribbon Committee) to conduct an
investigation thereon,6 for which it issued a subpoena directing
Lozada to appear and testify on 30 January 2008.7
On that date, instead of appearing before the Blue Ribbon
Committee, Lozada left the country for a purported official trip to
London, as announced by then DENR Secretary Lito Atienza (Sec.
Atienza).8 In the Petition, Lozada alleged that his failure to appear
at the scheduled hearing was upon the instructions of then
Executive Assistant Undersecretary Manuel Gaite (Usec.
Gaite).9 Consequently, the Senate issued an Order dated 30
January 2008: (a) citing Lozada for contempt; (b) ordering his
arrest and detention; and (c) directing the Senate Sergeant-at-
Arms to implement the Order and make a return thereon.10
While overseas, Lozada asked Sec. Atienza whether the former
could be allowed to go back to the Philippines.11 Upon the approval
of Sec. Atienza, Lozada informed his family that he was returning
673
from Hong Kong on 5 February 2008 on board Cathay Pacific Flight
No. 919, bound to arrive in Manila at 4:40 p.m. on the same day.12
In the Petition, Lozada claims that, upon disembarking from the
aircraft, several men held his arms and took his bag. Although he
allegedly insisted on meeting with his family, he later realized that
it was wiser to just follow them, especially when he overheard from
their handheld radio: "[H]wag kayong dumaan diyan sir nandyan
ang mga taga senado."13
Lozada asked if he could go to the comfort room, an opportunity he
used to call up his brother, petitioner Arturo, and inform him of his
situation.14 The men thereafter led him through the departure area
of the airport and into a car waiting for them.15 They made him sit
alone at the back of the vehicle, while a man, whom he later
discovered to be respondent Valeroso, took the passenger seat and
was always in contact with other individuals.16 Lozada observed
that other cars tailed their vehicle.17
Sec. Atienza then phoned Lozada, assuring the latter that he was
with people from the government, and that the former was going
to confer with "ES and Ma’[a]m." Lozada surmised that these
individuals referred to ES Ermita and former President Arroyo,
respectively.18 Sec. Atienza also purportedly instructed Lozada to
pacify his wife, petitioner Violeta, who was making public
statements asking for her husband’s return.19
The vehicle traversed the South Luzon Expressway and drove
towards the direction of Laguna.20 Along the way, the men asked
Lozada to draft an antedated letter requesting police protection.21
Lozada requested that he be brought home to Pasig, but the men
were allegedly compelled to deny his request on account of
unidentified security risks.22 Eventually, however, the vehicle
turned around and drove to Libis, Quezon City. The group stopped
at The Outback restaurant to meet with certain individuals, who
turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel
Paul Mascarinas (Col. Mascarinas) of the Police Special Protection
Office (PSPO). At the restaurant, Lozada claimed that he was made
to fill in the blanks of a prepared affidavit.23
After the meeting, the men informed Lozada that they were going
to billet him in a hotel for a night, but he suggested that they take
him to La Salle Green Hills instead. The men acquiesced.24
Upon arriving in La Salle Green Hills, Lozada was met by Violeta
and his sister, Carmen Lozada (Carmen).25 He observed that the
perimeter was guarded by policemen, purportedly restraining his
liberty and threatening not only his security, but also that of his
family and the De La Salle brothers.26
On 6 February 2008, at around 10:00 a.m., Col. Mascarinas
supposedly brought Lozada to the office of Atty. Bautista to finalize
and sign an affidavit.27
At about 1:00 p.m., Violeta filed before this Court a Petition for
Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus
case).28 Arturo likewise filed before this Court a Petition for a Writ
of Amparo, docketed as G.R. No. 181356 (the Amparo case), and
prayed for the issuance of (a) the writ of amparo; (b) a Temporary
Protection Order (TPO); and (c) Inspection and Production Orders
as regards documents related to the authority ordering custody
over Lozada, as well as any other document that would show
responsibility for his alleged abduction.29
At around the same time that Arturo filed the Petition for a Writ of
Amparo, Col. Mascarinas drove Lozada back to La Salle Green
Hills.30 Lozada was then made to sign a typewritten, antedated
letter requesting police protection.31 Thereafter, former Presidential
Spokesperson Michael Defensor (Sec. Defensor) supposedly came
and requested Lozada to refute reports that the latter was
kidnapped and to deny knowledge of alleged anomalies in the NBN-
ZTE deal. Sec. Defensor then purportedly gave Lozada ₱50,000 for Petitioners thus filed the instant Petition, praying for: (a) the
the latter’s expenses.32 reversal of the assailed CA Decision; (b) the issuance of the TPO;
and (c) the accreditation of the Association of Major Religious
Superiors of the Philippines and the De La Salle Brothers as the
On 7 February 2008, Lozada decided to hold a press conference
sanctuaries of Lozada and his family.54 In the alternative,
and contact the Senate Sergeant-at-Arms, who served the warrant
petitioners pray that this Court remand the case to the CA for
of arrest on him.33 Lozada claimed that after his press conference
further hearings and reverse the latter’s Orders: (a) denying the
and testimony in the Senate, he and his family were since then
Motion to Issue a Subpoena Ad Testificandum and (b) dropping
harassed, stalked and threatened.34
former President Arroyo as a respondent. Petitioners raise the
following issues:
On the same day, this Court issued a Resolution (a) consolidating
the Habeas Corpus case and the Amparo case; (b) requiring
(1) Whether the Court a [q]uo erred in ruling to dismiss
respondents in the Habeas Corpus case to comment on the Petition;
the petition for a writ of amparo and deny Petitioners’
(c) issuing a Writ of Amparo; (d) ordering respondents in the
prayer for a Temporary Protection Order, inter alia,
Amparo case to file their verified Return; (e) referring the
because there is no substantial evidence to prove that the
consolidated Petitions to the CA; and (f) directing the CA to set the
right to life, liberty or security of Jun Lozada was violated
cases for hearing on 14 February 2008.35 Accordingly, the court a
or threatened with violation. This rule is not in accord with
quo set both cases for hearing on 14 February 2008.36
the rule on the writ of amparo and Supreme Court
jurisprudence on substantial evidence[.]
On 12 February 2008, respondents filed before the CA a
Manifestation and Motion, praying for the dismissal of the Habeas
(2) Whether the Ponencia erred and gravely abused its
Corpus case.37 They asserted that Lozada was never illegally
discretion by prematurely ruling that the testimony of
deprived of his liberty and was, at that time, no longer in their
witnesses which Petitioners sought to present and who
custody. They likewise averred that, beginning 8 February 2008,
are subject of the Motion for Issuance of Subpoena ad
Lozada had already been under the supervision of the Senate and,
testificandum were irrelevant to the Petition for a Writ of
from then on, had been testifying before it.38
Amparo in a way not in accord with the Rules of Court and
Supreme Court decisions.
In their verified Return, respondents claimed that Sec. Atienza had
arranged for the provision of a security team to be assigned to
(3) Whether the Court a quo erred in using and
Lozada, who was then fearful for his safety.39 In effect, respondents
considering the affidavits of respondents in coming up
asserted that Lozada had knowledge and control of the events that
with the questioned decision when these were not offered
took place on 5 February 2008, voluntarily entrusted himself to
as evidence and were not subjected to cross-examination.
their company, and was never deprived of his liberty. Hence,
This ruling is not in accord with the Rules of Court and
respondents prayed for the denial of the interim reliefs and the
jurisprudence.
dismissal of the Petition.40

(4) Whether the Court a [q]uo erred in dropping as

During the initial hearing on 14 February 2008, Lozada and Violeta
ratified the Petition in the Amparo case41 to comply with Section 2
of the Rule on the Writ of Amparo,42 which imposes an order to be
followed by those who can sue for the writ.43 The CA also dismissed
the Habeas Corpus case in open court for being moot and academic,
as Lozada was physically present and was not confined or detained
by any of the respondents.44 Considering that petitioners failed to
question the dismissal of the Habeas Corpus case, the said
dismissal had lapsed into finality, leaving only the Amparo case
open for disposition.
Thereafter, Lozada filed a Motion for Temporary Protection Order
and Production of Documents,45 while Arturo filed a Motion for
Production of Documents.46 Additionally, Arturo also filed a Motion
for the Issuance of Subpoena Ad Testificandum and Presentation of
Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin
Abalos, [Sr.], Rodolfo Valeroso, "Jaime" the Driver and Other
Respondents. Respondents opposed these motions.47 The CA
denied the Motion for the Issuance of Subpoena on the ground that
the alleged acts and statements attributed to Sec. Neri and
Benjamin Abalos (Abalos) were irrelevant to the Amparo case, and
that to require them to testify would only result in a fishing
expedition.48 The CA likewise denied Arturo’s subsequent Motion for
Reconsideration.49
In its Resolution dated 5 March 2008, the CA dropped former
President Arroyo as a respondent on the ground that at the time
the Petition in the Amparo case was filed, she was still the
incumbent President enjoying immunity from suit.50 Arturo filed a
Motion for Reconsideration,51 which the CA denied in its Resolution
dated 25 March 2008.52
On 12 September 2008, the CA rendered its Decision denying
petitioners the privilege of the Writ of Amparo and dismissing the
Petition.53 The CA found that petitioners were unable to prove
through substantial evidence that respondents violated, or
threatened with violation, the right to life, liberty and security of
Lozada.
674
respondent Pres. Gloria Arroyo despite her failure to
submit a verified return and personally claim presidential
immunity in a way not in accord with the Rule on the Writ
of Amparo.55
The Office of the Solicitor General (OSG) asserts that petitioners
failed to adduce substantial evidence, as the allegations they
propounded in support of their Petition were largely hearsay.56 The
OSG also maintains that it was proper for the CA to have dropped
former President Arroyo as respondent on account of her
presidential immunity from suit.57
Respondent Atutubo also alleges, among others, that: (a) Lozada
voluntarily asked for security and protection; (b) Lozada willingly
submitted himself to the company of the police escorts; (c) Atutubo
merely accompanied him to pass through the contingency route
customarily provided to VIP passengers, public figures, foreign
dignitaries, and the like; and (d) Atutubo only performed his job to
ensure security and maintain order at the airport upon the arrival
of Lozada.58
In the face of these assertions by respondents, petitioners
nevertheless insist that while they have sufficiently established that
Lozada was taken against his will and was put under restraint,
respondents have failed to discharge their own burden to prove that
they exercised extraordinary diligence as public
officials.59 Petitioners also maintain that it was erroneous for the CA
to have denied their motion for subpoena ad testificandum for being
irrelevant, given that the relevancy of evidence must be examined
after it is offered, and not before.60 Finally, petitioners contend that
the presidential immunity from suit cannot be invoked in amparo
actions.61
Issues
In ruling on whether the CA committed reversible error in issuing
its assailed Decision, three issues must be discussed:
I. Whether the CA committed an error in dropping former
President Arroyo as a respondent in the Amparo case.
II. Whether the CA committed an error in denying
petitioners’ Motion for the Issuance of a Subpoena Ad
Testificandum.
III. Whether petitioners should be granted the privilege of
the writ of amparo.
Discussion
The writ of amparo is an independent and summary remedy that
provides rapid judicial relief to protect the people’s right to life,
liberty and security.62 Having been originally intended as a
response to the alarming cases of extrajudicial killings and enforced
disappearances in the country, it serves both preventive and
curative roles to address the said human rights violations. It is
preventive in that it breaks the expectation of impunity in the
commission of these offenses, and it is curative in that it facilitates
the subsequent punishment of perpetrators by inevitably leading to
subsequent investigation and action.63
As it stands, the writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to threats
thereof.64 Considering that this remedy is aimed at addressing
these serious violations of or threats to the right to life, liberty and
security, it cannot be issued on amorphous and uncertain
grounds,65 or in cases where the alleged threat has ceased and is
no longer imminent or continuing.66 Instead, it must be granted
judiciously so as not to dilute the extraordinary and remedial
character of the writ, thus:
The privilege of the writ of amparo is envisioned basically to protect
and guarantee the rights to life, liberty, and security of persons,
free from fears and threats that vitiate the quality of this life. It is
an extraordinary writ conceptualized and adopted in light of and in
response to the prevalence of extra-legal killings and enforced
disappearances. Accordingly, the remedy ought to be resorted to
and granted judiciously, lest the ideal sought by the Amparo Rule
be diluted and undermined by the indiscriminate filing of amparo
petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated
allegations.67 (Emphasis supplied.)
Using this perspective as the working framework for evaluating the
assailed CA decision and the evidence adduced by the parties, this
Court denies the Petition.
First issue: Presidential immunity from suit
It is settled in jurisprudence that the President enjoys immunity
from suit during his or her tenure of office or actual
incumbency.68 Conversely, this presidential privilege of immunity
cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.69
In the case at bar, the events that gave rise to the present action,
as well as the filing of the original Petition and the issuance of the
CA Decision, occurred during the incumbency of former President
Arroyo. In that respect, it was proper for the court a quo to have
dropped her as a respondent on account of her presidential
immunity from suit.
It must be underscored, however, that since her tenure of office
has already ended, former President Arroyo can no longer invoke
the privilege of presidential immunity as a defense to evade judicial
determination of her responsibility or accountability for the alleged
675
violation or threatened violation of the right to life, liberty and
security of Lozada.
Nonetheless, examining the merits of the case still results in the
denial of the Petition on the issue of former President Arroyo’s
alleged responsibility or accountability. A thorough examination of
the allegations postulated and the evidence adduced by petitioners
reveals their failure to sufficiently establish any unlawful act or
omission on her part that violated, or threatened with violation, the
right to life, liberty and security of Lozada. Except for the bare
claims that: (a) Sec. Atienza mentioned a certain
"Ma’[a]m,"70 whom Lozada speculated to have referred to her, and
(b) Sec. Defensor told Lozada that "the President was ‘hurting’ from
all the media frenzy,"71 there is nothing in the records that would
sufficiently establish the link of former President Arroyo to the
events that transpired on 5-6 February 2010, as well as to the
subsequent threats that Lozada and his family purportedly
received.
Second issue: Denial of the issuance of a subpoena ad
testificandum
This Court, in Roco v. Contreras,72 ruled that for a subpoena to
issue, it must first appear that the person or documents sought to
be presented are prima facie relevant to the issue subject of the
controversy, to wit:
A subpoena is a process directed to a person requiring him to attend
and to testify at the hearing or trial of an action or at any
investigation conducted under the laws of the Philippines, or for the
taking of his deposition.
In this jurisdiction, there are two (2) kinds of subpoena, to wit:
subpoena ad testificandum and subpoena duces tecum. The first is
used to compel a person to testify, while the second is used to
compel the production of books, records, things or documents
therein specified. As characterized in H.C. Liebenow vs. The
Philippine Vegetable Oil Company:
The subpoena duces tecum is, in all respects, like the ordinary
subpoena ad testificandum with the exception that it concludes
with an injunction that the witness shall bring with him and produce
at the examination the books, documents, or things described in
the subpoena.
Well-settled is the rule that before a subpoena duces tecum may
issue, the court must first be satisfied that the following requisites
are present: (1) the books, documents or other things requested
must appear prima facie relevant to the issue subject of the
controversy (test of relevancy); and (2) such books must be
reasonably described by the parties to be readily identified (test of
definiteness).73 (Emphasis supplied.)
In the present case, the CA correctly denied petitioners’ Motion for
the Issuance of Subpoena Ad Testificandum on the ground that the
testimonies of the witnesses sought to be presented during trial
were prima facie irrelevant to the issues of the case. The court a
quo aptly ruled in this manner:
The alleged acts and statements attributed by the petitioner to Neri
and Abalos are not relevant to the instant Amparo Petition where
the issue involved is whether or not Lozada’s right to life, liberty
and security was threatened or continues to be threatened with
violation by the unlawful act/s of the respondents. Evidence, to be
relevant, must have such a relation to the fact in issue as to induce
belief in its existence or nonexistence. Further, Neri, Abalos and a
certain driver "Jaime" are not respondents in this Amparo Petition
and the vague allegations averred in the Motion with respect to
them do not pass the test of relevancy. To Our mind, petitioner
appears to be embarking on a "fishing expedition". Petitioner
should present the aggrieved party [Lozada], who has been
regularly attending the hearings, to prove the allegations in the
Amparo Petition, instead of dragging the names of other people into
the picture. We have repeatedly reminded the parties, in the course
of the proceedings, that the instant Amparo Petition does not
involve the investigation of the ZTE-[NBN] contract. Petitioner
should focus on the fact in issue and not embroil this Court into said
ZTE-NBN contract, which is now being investigated by the Senate
Blue Ribbon Committee and the Office of the
Ombudsman.74 (Emphasis supplied.)
All the references of petitioners to either Sec. Neri or Abalos were
solely with respect to the ZTE-NBN deal, and not to the events that
transpired on 5-6 February 2008, or to the ensuing threats that
petitioners purportedly received. Although the present action is
rooted from the involvement of Lozada in the said government
transaction, the testimonies of Sec. Neri or Abalos are nevertheless
not prima facie relevant to the main issue of whether there was an
unlawful act or omission on the part of respondents that violated
the right to life, liberty and security of Lozada. Thus, the CA did not
commit any reversible error in denying the Motion for the Issuance
of Subpoena Ad Testificandum.
Third issue: Grant of the privilege of the writ of amparo
A. Alleged violation of or threat to the right to life, liberty and
security of Lozada
Sections 17 and 18 of the Rule on the Writ of Amparo requires the
parties to establish their claims by substantial evidence,75 or such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.76 The use of this evidentiary threshold
reveals the clear intent of the framers of the Rule on the Writ of
Amparo to have the equivalent of an administrative proceeding,
albeit judicially conducted, in addressing amparo situations.77
In cases where the violation of the right to life, liberty or security
has already ceased, it is necessary for the petitioner in an amparo
action to prove the existence of a continuing threat.78 Thus, this
Court held in its Resolution in Razon v. Tagitis:79
Manalo is different from Tagitis in terms of their factual settings, as
enforced disappearance was no longer a problem in that case. The
enforced disappearance of the brothers Raymond and Reynaldo
Manalo effectively ended when they escaped from captivity and
surfaced, while Tagitis is still nowhere to be found and remains
missing more than two years after his reported disappearance. An
Amparo situation subsisted in Manalo, however, because of the
continuing threat to the brothers’ right to security; the brothers
claimed that since the persons responsible for their enforced
disappearance were still at large and had not been held
accountable, the former were still under the threat of being once
again abducted, kept captive or even killed, which threat
constituted a direct violation of their right to security of
person.80 (Emphasis supplied.)
In the present case, the totality of the evidence adduced by
petitioners failed to meet the threshold of substantial evidence.
Sifting through all the evidence and allegations presented, the crux
of the case boils down to assessing the veracity and credibility of
the parties’ diverging claims as to what actually transpired on 5-6
February 2008. In this regard, this Court is in agreement with the
factual findings of the CA to the extent that Lozada was not illegally
deprived of his liberty from the point when he disembarked from
the aircraft up to the time he was led to the departure area of the
airport,81 as he voluntarily submitted himself to the custody of
respondents:
[Lozada] was one of the first few passengers to get off the plane
because he was instructed by Secretary Atienza, th[r]ough a phone
call on the night of 04 February 2008, while he was still in Hong
Kong, to proceed directly to the Bureau of Immigration so that few
people would notice him and he could be facilitated in going out of
the airport without any hassle from the people of the Senate
Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get
676
away from the Senate people. [Lozada] even went to the men’s
room of the airport, after he was allegedly "grabbed", where he
made a call to his brother Arturo, using his Globe phone, and he
was not prevented from making said call, and was simply advised
by the person who met him at the tube to (sic) "sir, bilisan mo na".
When they proceeded out of the tube and while walking, [Lozada]
heard from the radio track down, "wag kayo dyan, sir, nandyan
yong mga taga Senado", so they took a detour and went up to the
departure area, did not go out of the normal arrival area, and
proceeded towards the elevator near the Duty Free Shop and then
down towards the tarmac. Since [Lozada] was avoiding the people
from the Office of the Senate Sergeant-at-Arms, said detour
appears to explain why they did not get out at the arrival area,
where [Lozada] could have passed through immigration so that his
passport could be properly stamped.
This Court does not find any evidence on record that [Lozada]
struggled or made an outcry for help when he was allegedly
"grabbed" or "abducted" at the airport. [Lozada] even testified that
nobody held him, and they were not hostile to him nor shouted at
him. With noon day clarity, this Court finds that the reason why
[Lozada] was fetched at the airport was to help him avoid the
Senate contingent, who would arrest and detain him at the Office
of the Senate Sergeant-at-Arms, until such time that he would
appear and give his testimony, pursuant to the Order of the Senate
on the NBN-ZTE Project. [Lozada] clearly knew this because at that
time, it was still his decision not to testify before the Senate. He
agreed with that plan.82 (Emphases supplied.)
The foregoing statements show that Lozada personally sought the
help of Sec. Atienza to avoid the Senate personnel, and thus knew
that the men who met him at the airport were there to aid him in
such objective. Surely, the actions of Lozada evinced knowledge
and voluntariness, uncharacteristic of someone who claims to have
been forcibly abducted.
However, these men’s subsequent acts of directing Lozada to board
the vehicle and driving him around, without disclosing the exact
purpose thereof, appear to be beyond what he had consented to
and requested from Sec. Atienza. These men neither informed him
of where he was being transported nor provided him complete
liberty to contact his family members to assure them of his safety.
These acts demonstrated that he lacked absolute control over the
situation, as well as an effective capacity to challenge their
instructions.
Nevertheless, it must be emphasized that if Lozada had in fact been
illegally restrained, so much so that his right to liberty and security
had been violated, the acts that manifested this restraint had
already ceased and has consequently rendered the grant of the
privilege of the writ of amparo moot. Whether or not Lozada was
deprived of his liberty from the point when he was led inside the
vehicle waiting for him at the airport up to the time he was taken
to La Salle Green Hills, petitioners’ assertions that Lozada and his
family continue to suffer various threats from respondents remain
unproven. The CA correctly found as follows:
The supposed announcement of General Razon over the radio that
[Lozada] was in the custody of the PNP can neither be construed as
a threat to [Lozada’s] life, liberty and security. Certainly, no person
in his right mind would make that kind of media announcement if
his intent was indeed to threaten somebody’s life, liberty and
security.
xxx xxx xxx
He claims that he is threatened by the alleged presence of armed
men riding in motorcycle passing outside the De La Salle premises
where he and his family are staying and by alleged threats of armed
men around him at places where he went to. Again, these alleged
threats were not proven by any evidence at all, as having originated
from any of the respondents.
[Lozada] also considers the installation of the surveillance camera
at the De La Salle and at St. Scholastica as indirect threat to his
right to life, liberty and security. He claims that these are spy
cameras. However, save for [Lozada’s] self-serving claim, he
simply failed to prove that they were installed or ordered installed
by the respondents for the purpose of threatening his right to life,
liberty and security.
[Lozada] further maintains that there is an alleged trend, i.e.,
wherever he goes, there is a bomb threat. There were bomb threats
in the places where he went to like in [the Polytechnic University of
the Philippines], Dagupan, Cebu and Bohol. However, [Lozada]
himself testified that he did not try to ascertain where the bomb
threats emanated. Plainly, there is no evidence on record that the
bomb threats were made by the respondents or done upon their
instigation.
Moreover, [Lozada] views the pronouncement of the Secretary of
Justice that he was put on the watch list of the Bureau of
Immigration as a threat to his life, liberty and security. This alleged
threat is again unsupported by evidence, as in fact, [Lozada]
testified that he did not ascertain from the Bureau of Immigration
whether his name was actually in the official watch list of the
Bureau. At any rate, the Secretary of Justice is not one of the
respondents in the amparo petition, and there is no showing in the
record that it was the respondents who ordered the same for the
purpose of threatening him.
[Lozada] harps on the filing of alleged frivolous cases against him
and his family as threat to his life, liberty and security. xxx
However, [Lozada] himself testified that he does not know whether
the respondents or any of the respondents ordered the filing of
these cases against him. In any event, said purported cases are to
be determined based on their own merits and are clearly beyond
the realm of the instant amparo petition filed against the
respondents.83 (Emphasis supplied.)
Finally, petitioners insist that while they were able to sufficiently
establish their case by the required evidentiary standard,
respondents failed to discharge their burden to prove their defenses
by substantial evidence and to show that respondents exercised
extraordinary diligence as required by the Rule on the Writ of
Amparo.84 This Court has squarely passed upon this contention in
Yano v. Sanchez,85 to wit:
The failure to establish that the public official observed
extraordinary diligence in the performance of duty does not result
in the automatic grant of the privilege of the amparo writ. It does
not relieve the petitioner from establishing his or her claim by
substantial evidence.
Thus, in amparo actions, petitioners must establish their claims by
substantial evidence, and they cannot merely rely on the supposed
failure of respondents to prove either their defenses or their
exercise of extraordinary diligence. In this case, the totality of the
evidence presented by petitioners fails to meet the requisite
evidentiary threshold, and the privilege of the writ of amparo has
already been rendered moot and academic by the cessation of the
restraint to Lozada’s liberty.
B. Propriety of the privilege of the writ of amparo and its interim
reliefs
As previously discussed, there is no basis to grant Lozada the
privilege of the writ of amparo, considering that the illegal restraint
alleged in this case had already ceased and there is no imminent or
continuing restriction on his liberty. In Castillo v. Cruz,86 this Court
held as follows:
Although respondents’ release from confinement does not
necessarily hinder supplication for the writ of amparo, absent any
evidence or even an allegation in the petition that there is undue
677
and continuing restraint on their liberty, and/or that there exists
threat or intimidation that destroys the efficacy of their right to be
secure in their persons, the issuance of the writ cannot be justified.
(Emphasis supplied.)1âwphi1
Further, it appears that Lozada had already filed before the
Department of Justice (DOJ) a Complaint charging respondents
with kidnapping and attempted murder, docketed as I.S. No. 2008-
467.87 In this regard, this Court’s ruling in Rubrico v. Arroyo88 is
worth considering:
First, a criminal complaint for kidnapping and, alternatively, for
arbitrary detention rooted in the same acts and incidents leading to
the filing of the subject amparo petition has been instituted with
the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps
to determine the existence of a prima facie case against the five
(5) impleaded individuals suspected to be actually involved in the
detention of Lourdes have been set in motion. It must be pointed
out, though, that the filing of the OMB complaint came before the
effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 22 of the Amparo Rule proscribes the filing of an
amparo petition should a criminal action have, in the meanwhile,
been commenced. The succeeding Sec. 23, on the other hand,
provides that when the criminal suit is filed subsequent to a petition
for amparo, the petition shall be consolidated with the criminal
action where the Amparo Rule shall nonetheless govern the
disposition of the relief under the Rule. Under the terms of said Sec.
22, the present petition ought to have been dismissed at the outset.
But as things stand, the outright dismissal of the petition by force
of that section is no longer technically feasible in light of the
interplay of the following factual mix: (1) the Court has, pursuant
to Sec. 6 of the Rule, already issued ex parte the writ of amparo;
(2) the CA, after a summary hearing, has dismissed the petition,
but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-
O7-0602-E named as respondents only those believed to be the
actual abductors of Lourdes, while the instant petition impleaded,
in addition, those tasked to investigate the kidnapping and
detention incidents and their superiors at the top. Yet, the acts
and/or omissions subject of the criminal complaint and the amparo
petition are so linked as to call for the consolidation of both
proceedings to obviate the mischief inherent in a multiplicity-of-
suits situation.
Given the above perspective and to fully apply the beneficial nature
of the writ of amparo as an inexpensive and effective tool to protect
certain rights violated or threatened to be violated, the Court
hereby adjusts to a degree the literal application of Secs. 22 and
23 of the Amparo Rule to fittingly address the situation obtaining
under the premises. Towards this end, two things are at once
indicated: (1) the consolidation of the probe and fact-finding
aspects of the instant petition with the investigation of the criminal
complaint before the OMB; and (2) the incorporation in the same
criminal complaint of the allegations in this petition bearing on the
threats to the right to security. Withal, the OMB should be furnished
copies of the investigation reports to aid that body in its own
investigation and eventual resolution of OMB-P-C-O7-0602-E.
Then, too, the OMB shall be given easy access to all pertinent
documents and evidence, if any, adduced before the CA.
Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E,
should be allowed, if so minded, to amend her basic criminal
complaint if the consolidation of cases is to be fully effective.
(Emphasis supplied.)
Thus, if the Complaint filed before the DOJ had already progressed
into a criminal case, then the latter action can more adequately
dispose of the allegations made by petitioners. After all, one of the
ultimate objectives of the writ of amparo as a curative remedy is to
facilitate the subsequent punishment of perpetrators.89 On the
other hand, if there is no actual criminal case lodged before the
courts, then the denial of the Petition is without prejudice to the
filing of the appropriate administrative, civil or criminal case, if
applicable, against those individuals whom Lozada deems to have
unduly restrained his liberty.
Finally, with respect to the interim reliefs sought by petitioners, this
Court, in Yano v. Sanchez,90 declined to grant the prayer for the
issuance of a TPO, as well as Inspection and Production Orders,
upon a finding that the implicated public officials were not
accountable for the disappearance subject of that case.
Analogously, it would be incongruous to grant herein petitioners’
prayer for a TPO and Inspection and Production Orders and at the
same time rule that there no longer exists any imminent or
continuing threat to Lozada’s right to life, liberty and security. Thus,
there is no basis on which a prayer for the issuance of these interim
reliefs can be anchored.

WHEREFORE, the instant petition is DENIED for being moot and

academic. The Court of Appeals’ denial of the privilege of the writ
of amparo is hereby AFFIRMED.

SO ORDERED.

678
G.R. No. 184467 June 19, 2012
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW
BUISING, Petitioners,
vs.
VIRGINIA PARDICO, for and in behalf and in representation
of BENHUR V. PARDICO Respondent.
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance
cases, allegation and proof that the persons subject thereof are
missing are not enough. It must also be shown by the required
quantum of proof that their disappearance was carried out by, "or
with the authorization, support or acquiescence of, [the
government] or a political organization, followed by a refusal to
acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons."3
This petition for review on certiorari4 filed in relation to Section 19
of A.M. No. 07-9-12-SC5 challenges the July 24, 2008 Decision6 of
the Regional Trial Court (RTC), Branch 20, Malolos City which
granted the Petition for Writ of Amparo7 filed by herein respondent
against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land
Strategies Corporation8 (Asian Land) arrived at the house of Lolita
M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale
Subdivision, Barangay Lugam, Malolos City. The arrival of the
vehicle awakened Lolita’s son, Enrique Lapore (Bong), and Benhur
Pardico (Ben), who were then both staying in her house. When
Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked
Lolita where they could find her son Bong. Before Lolita could
answer, the guard saw Bong and told him that he and Ben should
go with them to the security office of Asian Land because a
complaint was lodged against them for theft of electric wires and
lamps in the subdivision.9
Shortly thereafter, Bong, Lolita and Ben were in the office of the
security department of Asian Land also located in Grand Royale
Subdivision.10 The supervisor of the security guards, petitioner
Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties’ respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office
because they received a report from a certain Mrs. Emphasis, a
resident of Grand Royale Subdivision, that she saw Bong and Ben
removing a lamp from a post in said subdivision.11 The reported
unauthorized taking of the lamp was relayed thru radio to
petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both
work as security guards at the Asian Land security department.
Following their department’s standard operating procedure, Dio and
Buising entered the report in their logbook and proceeded to the
house of Mrs. Emphasis. It was there where Dio and Buising were
able to confirm who the suspects were. They thus repaired to the
house of Lolita where Bong and Ben were staying to invite the two
suspects to their office. Bong and Ben voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben.
The suspects admitted that they took the lamp but clarified that
they were only transferring it to a post nearer to the house of
Lolita.12 Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the investigation.
679
Since there was no complainant, Navia ordered the release of Bong
and Ben. Bong then signed a statement to the effect that the guards
released him without inflicting any harm or injury to him.13 His
mother Lolita also signed the logbook below an entry which states
that she will never again harbor or entertain Ben in her house.
Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and
lamps within the subdivision. After a brief discussion though, Navia
allowed Ben to leave. Ben also affixed his signature on the logbook
to affirm the statements entered by the guards that he was
released unharmed and without any injury.14
Upon Navia’s instructions, Dio and Buising went back to the house
of Lolita to make her sign the logbook as witness that they indeed
released Ben from their custody. Lolita asked Buising to read aloud
that entry in the logbook where she was being asked to sign, to
which Buising obliged. Not contented, Lolita put on her reading
glasses and read the entry in the logbook herself before affixing her
signature therein. After which, the guards left.
Subsequently, petitioners received an invitation15 from the Malolos
City Police Station requesting them to appear thereat on April 17,
2008 relative to the complaint of Virginia Pardico (Virginia) about
her missing husband Ben. In compliance with the invitation, all
three petitioners appeared at the Malolos City Police Station.
However, since Virginia was not present despite having received
the same invitation, the meeting was reset to April 22, 2008.16
On April 22, 2008, Virginia attended the investigation. Petitioners
informed her that they released Ben and that they have no
information as to his present whereabouts.17 They assured Virginia
though that they will cooperate and help in the investigation of her
missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited.
They were unlawfully arrested, shoved into the Asian Land vehicle
and brought to the security office for investigation. Upon seeing
Ben at the security office, Navia lividly grumbled "Ikaw na
naman?"19 and slapped him while he was still seated. Ben begged
for mercy, but his pleas were met with a flurry of punches coming
from Navia hitting him on different parts of his body.20 Navia then
took hold of his gun, looked at Bong, and said, "Wala kang nakita
at wala kang narinig, papatayin ko na si Ben."21
Bong admitted that he and Ben attempted to take the lamp. He
explained that the area where their house is located is very dark
and his father had long been asking the administrator of Grand
Royale Subdivision to install a lamp to illumine their area. But since
nothing happened, he took it upon himself to take a lamp from one
of the posts in the subdivision and transfer it to a post near their
house. However, the lamp Bong got was no longer working. Thus,
he reinstalled it on the post from which he took it and no longer
pursued his plan. 22
Later on, Lolita was instructed to sign an entry in the guard’s
logbook where she undertook not to allow Ben to stay in her house
anymore.23 Thereafter, Navia again asked Lolita to sign the
logbook. Upon Lolita’s inquiry as to why she had to sign again,
Navia explained that they needed proof that they released her son
Bong unharmed but that Ben had to stay as the latter’s case will be
forwarded to the barangay. Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with
Bong.24 At that juncture, Ben grabbed Bong and pleaded not to be
left alone. However, since they were afraid of Navia, Lolita and
Bong left the security office at once leaving Ben behind.25
Moments after Lolita and Bong reached their house, Buising arrived
and asked Lolita to sign the logbook again. Lolita asked Buising why
she had to sign again when she already twice signed the logbook
at the headquarters. Buising assured her that what she was about
to sign only pertains to Bong’s release. Since it was dark and she
has poor eyesight, Lolita took Buising’s word and signed the
logbook without, again, reading what was written in it. 26
The following morning, Virginia went to the Asian Land security
office to visit her husband Ben, but only to be told that petitioners
had already released him together with Bong the night before. She
then looked for Ben, asked around, and went to the barangay. Since
she could not still find her husband, Virginia reported the matter to
the police.
In the course of the investigation on Ben’s disappearance, it
dawned upon Lolita that petitioners took advantage of her poor
eyesight and naivete. They made her sign the logbook as a witness
that they already released Ben when in truth and in fact she never
witnessed his actual release. The last time she saw Ben was when
she left him in petitioners’ custody at the security office.27
Exasperated with the mysterious disappearance of her husband,
Virginia filed a Petition for Writ of Amparo28 before the RTC of
Malolos City. Finding the petition sufficient in form and substance,
the amparo court issued an Order29 dated June 26, 2008 directing,
among others, the issuance of a writ of amparo and the production
of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court
Resolution [in] A.M. No. 07-[9]-12-SC, also known as "The Rule On
The Writ Of Amparo", let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising of the Asian Land Security Agency to produce before the
Court the body of aggrieved party Benhur Pardico, on Monday, June
30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on
the aforementioned date and time, and DIRECTING the
[petitioners] to personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-
two (72) hours from service of the writ, a verified written return
with supporting affidavits which shall, among other things, contain
the following:
a) The lawful defenses to show that the [petitioners] did not violate
or threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the
fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved
party.
(4) GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their
behalf, under pain of contempt, from threatening, harassing or
inflicting any harm to [respondent], his immediate family and any
[member] of his household.
The Branch Sheriff is directed to immediately serve personally on
the [petitioners], at their address indicated in the petition, copies
of the writ as well as this order, together with copies of the petition
and its annexes.30
680
A Writ of Amparo31 was accordingly issued and served on the
petitioners on June 27, 2008.32 On June 30, 2008, petitioners filed
their Compliance33 praying for the denial of the petition for lack of
merit.
A summary hearing was thereafter conducted. Petitioners
presented the testimony of Buising, while Virginia submitted the
sworn statements34 of Lolita and Enrique which the two affirmed on
the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged
Decision35 granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of
amparo, and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the
[petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the disappearance
of [Benhur] Pardico, utilizing in the process, as part of the
investigation, the documents forming part of the records of this
case;
(b) To hereby direct the NBI to extend to the family of [Benhur]
Pardico and the witnesses who testified in this case protection as it
may deem necessary to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of
Bulacan to investigate the circumstances concerning the legality of
the arrest of [Benhur] Pardico by the [petitioners] in this case,
utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this case,
and take whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the
Office of Director Nestor Mantaring, and to the Provincial Prosecutor
of Bulacan.
SO ORDERED.36
Petitioners filed a Motion for Reconsideration37 which was denied by
the trial court in an Order38 dated August 29, 2008.
Hence, this petition raising the following issues for our
consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY
ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE
PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS
IN VIOLATION OF HER HUSBAND’S RIGHT TO LIFE, LIBERTY, OR
SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED
THE FACT OF THE DISAPPEARANCE OF BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS
AT THE INSTANCE OF HEREIN PETITIONERS.39
Petitioners’ Arguments
Petitioners essentially assail the sufficiency of the amparo petition.
They contend that the writ of amparo is available only in cases
where the factual and legal bases of the violation or threatened
violation of the aggrieved party’s right to life, liberty and security
are clear. Petitioners assert that in the case at bench, Virginia
miserably failed to establish all these. First, the petition is wanting
on its face as it failed to state with some degree of specificity the
alleged unlawful act or omission of the petitioners constituting a
violation of or a threat to Ben’s right to life, liberty and security.
And second, it cannot be deduced from the evidence Virginia
adduced that Ben is missing; or that petitioners had a hand in his
alleged disappearance. On the other hand, the entries in the
logbook which bear the signatures of Ben and Lolita are eloquent
proof that petitioners released Ben on March 31, 2008 at around
10:30 p.m. Petitioners thus posit that the trial court erred in issuing
the writ and in holding them responsible for Ben’s disappearance.
Our Ruling
Virginia’s Petition for Writ of Amparo is fatally defective and must
perforce be dismissed, but not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country. Its purpose is to provide an
expeditious and effective relief "to any person whose right to life,
liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a
private individual or entity." 40
Here, Ben’s right to life, liberty and security is firmly settled as the
parties do not dispute his identity as the same person summoned
and questioned at petitioners’ security office on the night of March
31, 2008. Such uncontroverted fact ipso facto established Ben’s
inherent and constitutionally enshrined right to life, liberty and
security. Article 641 of the International Covenant on Civil and
Political Rights42 recognizes every human being’s inherent right to
life, while Article 943 thereof ordains that everyone has the right to
liberty and security. The right to life must be protected by law while
the right to liberty and security cannot be impaired except on
grounds provided by and in accordance with law. This overarching
command against deprivation of life, liberty and security without
due process of law is also embodied in our fundamental law.44
The pivotal question now that confronts us is whether Ben’s
disappearance as alleged in Virginia’s petition and proved during
the summary proceedings conducted before the court a quo, falls
within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. – The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee on
Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC
chose to allow it to evolve through time and jurisprudence and
through substantive laws as may be promulgated by
Congress.45 Then, the budding jurisprudence on amparo blossomed
in Razon, Jr. v. Tagitis46 when this Court defined enforced
disappearances. The Court in that case applied the generally
accepted principles of international law and adopted the
International Convention for the Protection of All Persons from
Enforced Disappearance’s definition of enforced disappearances, as
681
"the arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty or
by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the
law."47
Not long thereafter, another significant development affecting A.M.
No. 07-9-12-SC came about after Congress enacted Republic Act
(RA) No. 985148 on December 11, 2009. Section 3(g) thereof
defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the
arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing from the protection
of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D.
Brion wrote in his Separate Opinion that with the enactment of RA
No. 9851, "the Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to the rights to life,
liberty and security, but on a concrete statutory definition as well
of what an ‘enforced or involuntary disappearance’ is."50 Therefore,
A.M. No. 07-9-12-SC’s reference to enforced disappearances
should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No.
9851. Meaning, in probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we
can derive the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organization’s refusal
to acknowledge or give information on the fate or whereabouts of
the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person
from the protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of
amparo to issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown and
proved by substantial evidence that the disappearance was carried
out by, or with the authorization, support or acquiescence of, the
State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a prolonged
period of time. Simply put, the petitioner in an amparo case has
the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bong’s testimony that Navia
had a menacing attitude towards Ben and that he slapped and
inflicted fistic blows upon him. Given the circumstances and the
pugnacious character of Navia at that time, his threatening
statement, "Wala kang nakita at wala kang narinig, papatayin ko
na si Ben," cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record
which would support petitioners’ assertion that they released Ben
on the night of March 31, 2008 unscathed from their wrath. Lolita
sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And
so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never
identified or presented in court and whose complaint was never
reduced in writing.1âwphi1

But lest it be overlooked, in an amparo petition, proof of

disappearance alone is not enough. It is likewise essential to
establish that such disappearance was carried out with the direct
or indirect authorization, support or acquiescence of the
government. This indispensable element of State participation is
not present in this case. The petition does not contain any
allegation of State complicity, and none of the evidence presented
tend to show that the government or any of its agents orchestrated
Ben’s disappearance. In fact, none of its agents, officials, or
employees were impleaded or implicated in Virginia’s amparo
petition whether as responsible or accountable persons.51 Thus, in
the absence of an allegation or proof that the government or its
agents had a hand in Ben’s disappearance or that they failed to
exercise extraordinary diligence in investigating his case, the Court
will definitely not hold the government or its agents either as
responsible or accountable persons.

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ

of amparo may lie against a private individual or entity. But even if
the person sought to be held accountable or responsible in an
amparo petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable
element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and their principal,
the Asian Land, is a private entity. They do not work for the
government and nothing has been presented that would link or
connect them to some covert police, military or governmental
operation. As discussed above, to fall within the ambit of A.M. No.
07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of
State participation differentiates an enforced disappearance case
from an ordinary case of a missing person.

WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court,
Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition
for Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.

SO ORDERED.

682
G.R. No. 193652 August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother,
MA. CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B.
CABRERA, and CELIA C. YANGCO, Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, and Section 191 of the
Rule on the Writ of Amparo2 seeking to set aside the August 17,
20103 and September 6, 20104Orders of the Regional Trial Court
(RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-
67604. The RTC had dismissed petitioner’s petition for the issuance
ofa writ of amparo which petitioner filed in order for her to regain
parental authority and custody of Julian Yusay Caram (Baby Julian),
her biological child, from the respondent officers of the Department
of Social Welfare and Development (DSWD). The factual
antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous
relationship with Marcelino Gicano Constantino III (Marcelino) and
eventually became pregnant with the latter’s child without the
benefit of marriage. After getting pregnant, Christina mislead
Marcelino into believing that she had an abortion when in fact she
proceeded to complete the term of her pregnancy. During this time,
she intended to have the child adopted through Sun and Moon
Home for Children (Sun and Moon) in Parañaque City to avoid
placing her family ina potentially embarrassing situation for having
a second illegitimate son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang
Rodriguez Memorial MedicalCenter, Marikina City.6Sun and Moon
shouldered all the hospital and medical expenses. On August 13,
2009, Christina voluntarily surrendered Baby Julian by way of a
Deed of Voluntary Commitment7 to the DSWD.
On November 26, 2009, Marcelino suffered a heart attack and
died8 without knowing about the birth of his son. Thereafter, during
the wake, Christina disclosed to Marcelino’s family that she and the
deceased had a son that she gave up for adoption due to financial
distress and initial embarrassment. Marcelino’s family was taken
aback by the revelation and sympathized with Christina. After the
emotional revelation, they vowed to help her recover and raise the
baby.9 On November 27, 2009, the DSWD, through Secretary
Esperanza I. Cabral issued a certificate10declaring Baby Julian as
"Legally Available for Adoption." A local matching conference was
held on January 27, 2010 and on February 5, 2010, Baby Julian
was "matched" with the spouses Vergel and Filomina Medina
(Medina Spouses) of the Kaisahang Bahay Foundation. Supervised
trial custody then commenced.11
On May 5, 2010, Christina who had changed her mind about the
adoption, wrote a letter to the DSWDasking for the suspension of
Baby Julian’s adoption proceedings. She alsosaid she wanted her
family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D.
Segui, sent a Memorandum13 to DSWD Assistant Secretary Vilma
B. Cabrera informing her that the certificate declaring Baby Julian
legally available for adoption had attained finality on November 13,
2009, or three months after Christina signed the Deed of Voluntary
Commitment which terminated her parental authority and
effectively made Baby Julian a ward of the State. The said
Memorandum was noted by respondent Atty. Sally D. Escutin,
Director IV of the Legal Service, DSWD.
683
On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother,
sent a letter to Atty. Escutin informing her that a DNA testing was
scheduled on July 16, 2010 at the DNA Analysis Laboratory at the
University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to
Noel Constantino stating that it would not allow Baby Julian to
undergo DNA testing. Assistant Secretary Cabrera informed Noel
Constantino that the procedures followed relative to the
certification on the availability of the child for adoption and the
child’s subsequent placement to prospective adoptive parents were
proper, and that the DSWD was no longer in the position to stop
the adoption process. Assistant Secretary Cabrera further stated
that should Christina wish to reacquire her parental authority over
Baby Julian or halt the adoption process, she may bring the matter
to the regular courts as the reglementary period for her to regain
her parental rights had already lapsed under Section 7 of Republic
Act (R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a
writ of amparo before the RTC of Quezon City seeking to obtain
custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant
Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the
DSWD.
In her petition, Christina accused respondents of "blackmailing" her
into surrendering custody of her childto the DSWD utilizing what
she claims to be an invalid certificate of availability for adoption
which respondents allegedly used as basis to misrepresent that all
legal requisites for adoption of the minor child had been complied
with.
Christina argued that by making these misrepresentations, the
respondents had acted beyond the scope of their legal authority
thereby causing the enforced disappearance of the said child and
depriving her of her custodial rights and parental authority over
him.
On the basis of the said petition,the RTC, Branch 106 of Quezon
City, through its Presiding Judge, the Honorable Angelene Mary W.
Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010
commanding the four respondents to produce the body of Baby
Julian at a hearing scheduled on August 4, 2010. Respondents were
alsorequired to file their verified written return to the writ pursuant
to Section 919 of the Amparo Rule, within five working days from
the service of the writ.
The respondents complied with the writ and filed their Return20 on
August 2, 2010 praying that the petition be denied for being the
improper remedy to avail of in a case relating toa biological parent’s
custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but
respondents did not bring the child, stating that threats of
kidnapping were made on the child and his caregivers. To give
respondents another chance, the RTC reset the hearing to August
5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General
(OSG) entered its appearance as representative of the State and
prayed that its lawyers be given time to file their memorandum or
position paper in this case. In turn, the RTC acknowledged the
appearance of the OSG and allowed its representatives to actively
participate in the arguments raised during the said hearing.
Relative to the matter of the parties submitting additional
pleadings, Judge Sale narrowed the issues to be discussed by
providing for the following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and
counter-manifestations made by the counsels, the court enjoined
the parties to file their respective position papers on the following
issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the
facts of the case and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and
custody of the child be given to his biological mother.
The parties were given five (5) days from today to file their
respective position papers based on these three main issues. They
may include other related issues they deem essential for the
resolution of this case. Set this case for further hearing, if
necessary, on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child
subject of the case was brought before the court and the petitioner
was allowed to see him and take photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance of
a writ of amparo without prejudice to the filing of the appropriate
action in court. The RTC held that Christina availed of the wrong
remedy to regain custody of her child Baby Julian.22 The RTC
further stated that Christina should have filed a civil case for
custody of her child as laid down in the Family Code and the Rule
on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors. If there is extreme urgency to secure custody
of a minor who has been illegallydetained by another, a petition for
the issuance of a writ of habeas corpus may be availed of, either as
a principal or ancillary remedy, pursuant to the Rule on Custody of
Minors and Writ of Habeas Corpus inRelation to Custody of Minors.23
On August 20, 2010, Christina filed a motion for
reconsideration24 arguing that since the RTC assumed jurisdiction
of the petition for the issuance of a writ of amparo, the latter is
duty-bound to dispose the case on the merits.25 The RTC, however,
deniedChristina’s motion for reconsideration on September 6, 2010
maintaining that the latter availed of the wrong remedy and that
the Supreme Court intended the writ of amparo to address the
problem of extrajudicial killings and enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before
this Court, via a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure, as amended, in relation to
Section 19 of the Rule on the Writ of Amparo. In her petition,
Christina prayed that the Court (1) set aside the August 17, 2010
and September 6, 2010 Orders of the RTC, (2) declare R.A. No.
9523 unconstitutional for being contrary to A.M. No. 02-6-02-
SC,27 which was promulgated by the Supreme Court, and for
violating the doctrine of separation of powers, (3) declare the
"enforced separation" between her and Baby Julian as violative of
her rights to life, liberty and security, and (4) grant her the privilege
of availing the benefits of a writ of amparo so she could be reunited
with her son.28
The only relevant issue presented before the Court worthy of
attention is whether a petition for a writ of amparo is the proper
recourse for obtaining parental authority and custody of a minor
child. This Court will not belabor to discuss Christina’s arguments
relating to the supposed unconstitutionality or R.A. No. 9523 as
Congress has the plenary power to repeal, alter and modify existing
laws29 and A.M. No. 02-6-02-SC functions only as a means to
enforce the provisions of all adoption and adoption-related statutes
before the courts.
Now, in her petition, Christina argues that the life, liberty and
security of Baby Julian is being violated or threatened by the
respondent DSWD officers’ enforcement of an illegal Deed of
Voluntary Commitment between her and Sun and Moon. She claims
thatshe had been "blackmailed" through the said Deed by the
DSWD officers and Sun and Moon’s representatives into
surrendering her child thereby causing the "forced separation" of
the said infant from his mother. Furthermore, she also reiterates
684
that the respondent DSWD officers acted beyond the scope of their
authority when they deprived her of Baby Julian’s custody.30
The Court rejects petitioner’s contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful actor omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof.
In the landmark case of Secretary of National Defense, et al. v.
Manalo, et al.,31 this Court held:
[T]he AmparoRule was intended to address the intractable problem
of "extralegal killings" and "enforced disappearances," its coverage,
in its present form, is confined to these two instances or to threats
thereof. "Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or
abduction of a person by a government official or organized
groupsor private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose
the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons
outside the protection of law.
This pronouncement on the coverage of the writ was further
cemented in the latter case of Lozada, Jr. v. Macapagal-
Arroyo32 where this Court explicitly declared that as it stands, the
writ of amparo is confined only to cases of extrajudicial killings and
enforced disappearances, or to threats thereof. As to what
constitutes "enforced disappearance," the Court in Navia v.
Pardico33 enumerated the elements constituting "enforced
disappearances" as the term is statutorily defined in Section 3(g)
of R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any
form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State ora political
organization;
(c) that it be followed by the State or political
organization’s refusal to acknowledge or give information
on the fate or whereabouts of the person subject of the
amparo petition; and,
(d) that the intention for such refusal isto remove subject
person from the protection of the law for a prolonged
period of time.
In this case, Christina alleged that the respondent DSWD officers
caused her "enforced separation" from Baby Julian and that their
action amounted to an "enforced disappearance" within the context
of the Amparo rule. Contrary to her position, however, the
respondent DSWD officers never concealed Baby Julian's
whereabouts. In fact, Christina obtained a copy of the DSWD's May
28, 2010 Memorandum35 explicitly stating that Baby Julian was in
the custody of the Medina Spouses when she filed her petition
before the RTC. Besides, she even admitted in her petition for
review on certiorari that the respondent DSWD officers presented
Baby Julian before the RTC during the hearing held in the afternoon
of August 5, 2010.36 There is therefore, no "enforced
disappearance" as used in the context of the Amparo rule as the
third and fourth elements are missing.

Christina's directly accusing the respondents of forcibly separating

her from her child and placing the latter up for adoption, supposedly
without complying with the necessary legal requisites to qualify the
child for adoption, clearly indicates that she is not searching for a
lost child but asserting her parental authority over the child and
contesting custody over him.37 Since it is extant from the pleadings
filed that what is involved is the issue of child custody and the
exercise of parental rights over a child, who, for all intents and
purposes, has been legally considered a ward of the State, the
Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy

available to victims of extra-judicial killings and enforced
disappearances or threats of a similar nature, regardless of whether
the perpetrator of the unlawful act or omission is a public official or
employee or a private individual. It is envisioned basically to protect
and guarantee the right to life, liberty and security of persons, free
from fears and threats that vitiate the quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and

September 6, 2010 Orders of the Regional Trial Court, Branch 106,
Quezon City in Sp. Proc. Case No. Q-10-67604 are AFFIRMED
without prejudice to petitioner's right to avail of proper legal
remedies afforded to her by law and related rules.

No costs.

SO ORDERED.

685
G.R. Nos. 146368-69 October 18, 2004
MADELEINE MENDOZA-ONG, petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
RESOLUTION
QUISUMBING, J.:
In this Motion for Reconsideration,1 petitioner Madeleine
Mendoza-Ong seeks a reversal of this Court’s October 23, 2003,
Resolution dismissing her petition for certiorari and upholding the
Sandiganbayan’s denial of her motion to quash. She contends that
the Court erred in:
I…holding that the information filed against [her] in Criminal
Case No. 23848 has alleged the essential ingredients of the
offense charged [and in]
II…failing to resolve the fundamental issue of whether the
excessive or inordinate delay in the conduct of the preliminary
investigation and filing of the informations after three (3) years
had deprived [her] of her Constitutional and statutory right to
due process and speedy determinations and disposition of the
cases against her warranting dismissal thereof.2
Concerning the first ground abovecited, the Court notes that the
motion contains merely a reiteration or rehash of arguments
already submitted to the Court and found to be without merit.
Petitioner fails to raise any new and substantial arguments, and no
cogent reason exists to warrant a reconsideration of the Court’s
Resolution. It would be a useless ritual for the Court to reiterate
itself.3
As to the second ground, we find it raises arguments that have
already been passed upon. Reconsideration on that ground may
also be denied summarily. Nevertheless, we shall take time to
explain why her motion must be set aside for lack of merit, if only
to clear any lingering doubt on the matter.
Petitioner laments that although the complaint was filed with the
Office of the Deputy Ombudsman for the Visayas as early as
December 13, 1994, the informations were filed with the
Sandiganbayan only on August 1, 1997, and the amended
informations, on October 27, 1998. According to her, the delay of
nearly three years to finish the preliminary investigation violated
her constitutional rights to due process and speedy disposition of
cases. The established facts of this case, however, show no such
violation.
The right to speedy disposition of cases, like the right to speedy
trial, is violated only when the proceedings are attended by
vexatious, capricious and oppressive delays.4 In the determination
of whether said right has been violated, particular regard must be
taken of the facts and circumstances peculiar to each case.5 The
conduct of both the prosecution and the defendant, the length of
the delay, the reasons for such delay, the assertion or failure to
assert such right by the accused, and the prejudice caused by the
delay are the factors to consider and balance.6 A mere
mathematical reckoning of time involved would not be sufficient.7
In this case, the Graft Investigation Officer released his resolution
finding probable cause against petitioner on August 16, 1995, less
than six months from the time petitioner and her co-accused
submitted their counter-affidavits. On October 30, 1995, only two
and a half months later, Ombudsman Aniano Desierto had reviewed
the case and had approved the resolution. Contrary to petitioner’s
contention, the lapse of only ten months from the filing of the
complaint on December 13, 1994, to the approval of the resolution
686
on October 30, 1995, is by no means oppressive. "Speedy
disposition of cases" is consistent with reasonable delays. 8 The
Court takes judicial notice of the fact that the nature of the Office
of the Ombudsman encourages individuals who clamor for efficient
government service to lodge freely their complaints against alleged
wrongdoing of government personnel.9 A steady stream of cases
reaching the Ombudsman inevitably results.10 Naturally,
disposition of those cases would take some time. Moreover,
petitioner herself had contributed to the alleged delay when she
asked for extension of time to file her counter-affidavit.
That the informations were filed only on August 1, 1997, also did
not violate petitioner’s constitutional rights. The delay was not
without valid reasons. The Special Prosecutor in charge of preparing
the informations felt a genuine need to specify in the informations
(1) the value of the five drums of fuel petitioner received as gift in
violation of the anti-graft law and (2) the amount of the subsistence
allowance of heavy-equipment operators that the municipality of
Laoang, Northern Samar, paid for when petitioner used heavy
equipment rented by the municipality to develop her private
property. The recommendation to specify these two amounts then
had to undergo levels of review and was approved by Ombudsman
Desierto only on January 29, 1996. Unfortunately, the needed
information was not in the records, so the Deputy Special
Prosecutor sought it from the Office of the Deputy Ombudsman for
the Visayas. As that office also did not possess the needed
information, it issued an Order on June 10, 1996, directing
petitioner to supply the needed information.
When petitioner received a copy of the Order, however, she sought
additional time to comply with the Order. She waited for two
months before filing on August 23, 1996, a verified statement
supplying none of the information required of her. She claimed that
the five drums of fuel were merely donated to her and that she did
not know their value. She also alleged that it was she and her
husband, and not the government, who spent for the subsistence
allowance of the heavy-equipment operator in the development of
her private property. She did not object to the delay in the
termination of the proceedings against her, nor did she seek at that
time to expedite its resolution.
Petitioner’s refusal to supply the information prompted the handling
investigator at the Office of the Deputy Ombudsman for the Visayas
to recommend on August 28, 1996, that the price of the five drums
of fuel be estimated instead. Notably, the Office of the Special
Prosecutor could have filed the informations then, but petitioner
had filed with the said office a motion for reassessment of evidence
on June 25, 1996, and a supplemental motion on August 20, 1996.
These motions, which incidentally also failed to raise the issue of
delay, effectively suspended the filing of the informations.
Subsequently, the case had to be reassigned to another Special
Prosecutor because the original handling prosecutor was appointed
Resident Ombudsman for the Bureau of Internal Revenue.
Petitioner’s motion for reassessment was resolved only on June 27,
1997. The resolution again went up for further review.
Considering the number of times that the case had to be reviewed,
the levels of review that the case had to undergo, and petitioner’s
own motions for additional time, the period that lapsed -- roughly
two years and five months (from the time petitioner and her co-
accused submitted their counter-affidavits on March 29, 1995, to
the time the informations were filed on August 1, 1997) to
terminate the proceedings against petitioner -- could not be
considered vexatious, capricious, and oppressive delay. They were
necessitated by exigency of the actions taken on the case. The
period to terminate the proceedings, in our view, had not violated
petitioner’s constitutionally guaranteed rights to due process and
to a speedy disposition of cases.11
Neither could the delay be said to have been prejudicial to her
considering that she herself is guilty of delay.12 The Court has held
that if the long delay in the termination of the preliminary
investigation was not solely the prosecution’s fault, but was also
due to incidents attributable to the accused and his counsel, the
right of the accused to speedy disposition of cases is not
violated.13 Petitioner cannot now seek the protection of the law to
benefit from what she now considers the adverse effects of her own
conduct in this case.

Petitioner’s reliance on the doctrines in Tatad v.

Sandiganbayan,14 Duterte v. Sandiganbayan,15 and Angchangco,
Jr. v. Ombudsman16 is misplaced.

In Tatad v. Sandiganbayan, the cases against petitioner remained

dormant for almost three years. In ruling that the long delay
violated not only Tatad’s constitutional right to due process but also
his right to speedy disposition of the cases against him, the Court
considered three factors. First, political motivation played a vital
role in activating and propelling the prosecutorial process. Second,
there was a blatant departure from established procedures
prescribed by law for the conduct of a preliminary investigation.
And third, the long delay in resolving the preliminary investigation
could not be justified on the basis of the records.17

Worth noting, in Duterte v. Sandiganbayan, petitioners were denied

the right to a preliminary investigation altogether. They were not
served copies of the complaint-affidavits and were not given the
chance to file counter-affidavits. The Graft Investigator merely
required them to comment on a civil complaint against them and
on a Special Audit Report of the Commission on Audit, both of which
were not equivalent to the complaint-affidavits required by the
applicable administrative rules. In fact, the petitioners were
unaware and were never informed that a preliminary investigation
was being conducted against them. The recommendations in the
COA Special Audit Report were already accepted even before the
report came out, and the civil complaint had already long been
dismissed before the Graft Investigator required petitioner’s
comment on it.

Additionally, in Duterte, although the petitioners had filed the

manifestation in lieu of the required comment on February 18,
1992, it was only on February 22, 1996, or four years later, that
they received the resolution recommending the filing of
informations against them. Then, also, informations were filed
against petitioners in that case even in the absence of sufficient
ground to hold them liable for the crime charged.

In Angchangco, Jr. v. Ombudsman, the delay lasted for six years

despite the fact that Angchangco, Jr., had filed several omnibus
motions for early resolution. Angchangco, Jr., even filed a motion
to dismiss. Sadly, however, the Office of the Ombudsman failed to
act on said motion.18

Unlike in the Tatad, Duterte, and Angchangco, Jr., cases where the
delays were manifestly oppressive, the facts of this case do not
evince vexatious, capricious and oppressive delay in the conduct of
the preliminary investigation. There appears, therefore, no
persuasive much less compelling reason to grant in this case the
same radical relief granted in those three cases that petitioner
cited.19

WHEREFORE, petitioner’s Motion for Reconsideration is

hereby DENIED for lack of merit.

SO ORDERED.

687
G.R. No. 108595 May 18, 1999
ELPIDIO C. CERVANTES, petitioner,
vs.
THE SANDIGANBAYAN, FIRST DIVISION, THE SPECIAL
PROSECUTOR, and PEDRO ALMEDRAS, respondents.
PARDO, J.:
The case before the Court is a special civil action for certiorari and
prohibition with preliminary injunction seeking to annul and set
aside the resolution of the Sandiganbayan. First Division,1 that
denied petitioner's motion to quash the information against him for
violation of Section 3 (e). Republic Act 3019, and to restrain or
enjoin the Sandiganbayan from proceeding with his arraignment
and trial. The motion is based on the ground that the filing of the
information against petitioner over six (6) years after the initial
complaint with the Tanodbayan (predecessor of the Ombudsman)
violated his right to speedy disposition of the case, and that the
acts charged in the information do not constitute an offense.
We grant the petition.
The facts are as follows.
On March 6, 1986, one Pedro Almendras filed with the Office of the
Tanodbayan (predecessor of the Ombudsman) a sworn
complaint2 against Alejandro Tapang for falsification of complaint's
"salaysay" alleging that Alejandro Tapang made complainant sign
a piece of paper in blank on which paper a "salaysay" was later
inscribed stating that complaint had been paid his claim in the
amount of P17,594.00, which was not true. In the said complaint,
Pedro Almendras mentioned that he sought the help of petitioner
Elpidio C. Cervantes who worked as analyst in the office of labor
arbiter Teodorico L. Ruiz.3
claim against Tapang unwarranted benefits and advantage to the
damage and prejudice of Pedro Almedras.
CONTRARY TO LAW.6
On May 28, 1992, petitioner filed a motion for reconsideration with
the Office of the Special Prosecutor reiterating that he never met
complainant Almendras on June 29, 1984, that complainant filed a
case before the City Fiscal of Quezon City, claiming that his counsel
together, with Tapang conspired to deprive him of his monetary
award and that the case was dismissed.
On October 2, 1992, petitioner filed with the Sandiganbayan,
Manila, a "motion to defer arraignment due to pendency of
reinvestigation or motion to quash and motion to recall warrant of
arrest" on the ground that (a) petitioner filed with the office of the
Special Prosecutor a motion for reinvestigation; (b) that the case
against Cervantes "has prescribed" due to unreasonable delay in
the resolution of the preliminary investigation, and (c) that the acts
charged in the information do not constitute an offense.8
On October 2, 1992, the Ombudsman denied petitioner's motion for
reconsideration,9 and simultaneously filed with the Sandiganbayan
an amended information. The amendment consisted of the insertion
of the total amount involved. 10
By minute resolution dated December 24, 1992, the
Sandiganbayan denied petitioner's motion, ruling that there was no
"unwarranted postponement nor any denial by the Tanodbayan or
of the Ombudsman of any step taken by the accused to accelerate
the disposition on the matter." 11
Hence, this petition.

On February 22, 1993, the Court required respondents to comment

On October 2, 1986, Alejandro Tapang submitted to the Office of
on the petition (not to file a motion to dismiss) within ten (10) days
the Tanodbayan a counter-affidavit stating that the letter complaint
from notice, and issued a temporary restraining order enjoining
of Almendras was the subject of a labor case decided by Arbiter
respondent Sandiganbayan from continuing with the arraignment
Teodorico L. Ruiz; that the letter "is full of lies and improbabilities
and trial or from further proceeding with Criminal Case No. 17673.
"and "that it is vague."4
On December 14, 1993, respondents filed their comment. On
November 22, 1994, respondents filed a rejoinder.
On October 16, 1986, petitioner Elpidio C. Cervantes filed with the
office of the Tanodbayan an affidavit stating that he had nothing to
We resolved to give due course to the petition and decide the case.
do with the blank paper that Almendras signed, as admitted by the
latter in a confrontation in the presence of National Labor Relations
Commission (NLRC) vice chairman Diego Atienza.5 The issues raised are (a) whether the acts charged in the
information filed against petitioner for violation of Section 3 (e), R.
A. 3019 do not constitute a offense; and (b) whether the
On May 18, 1992, more than six (6) years after the filing of the
Sandiganbayan acted with grave abuse of discretion in denying his
initiatory complaint with the Tanodbayan, Special Prosecution
motion to quash for violation of the right to speedy disposition of
Officer II, Office of the Special Prosecutor Luz L. Quinones-Marcos
the case.
filed with the Sandiganbayan, assigned to the First Division, an
Information charging petitioner Elpidio C. Cervantes, together with
Teodorico L. Ruiz and Alejandro Tapang with violation of Section 3 We shall first resolve the second issue. We find petitioner's
(e), Republic Act 3019, committed as follows: contention meritorious. He was deprived of his right to a speedy
disposition of the case, a right guaranteed by the Constitution. 12 It
took the Special Prosecutor (succeeding the Tanodbayan) six (6)
That on or about June 16, 1984, or for sometime subsequent
years from the filing of the initiatory complaint before he decided
thereto, in Manila, Philippines and within the jurisdiction of this
to file an information for the offense with the Sandiganbayan. The
Honorable Court, the above-named accused Teodorico L. Ruiz, a
letter complaint was filed with the Tanodbayan on March 6, 1986.
public officer, being then a Labor Arbiter, National Labor Relations
The affidavit of the petitioner was filed therein on October 16, 1986.
Commission, NCR, Department of Labor and Elpidio Cervantes, also
The Special Prosecutor resolved the case on May 18, 1992. In their
a public officer, being then a Labor Analyst, National Labor
comment to the petition at bar, 13 the Sandiganbayan and the
Relations Commission, NCR, Department of Labor, in the exercise
Special Prosecutor try to justify the inordinate delay in the
of their official and administrative functions, conspiring,
resolution of the complaint by stating that "no political motivation
confederating and conniving with private respondent Alejandro
appears to have tainted the prosecution of the case" in apparent
Tapang, did then and there, wilfully, unlawfully and criminally with
reference to the case of Tatad vs. Sandiganbayan, (footnote: 159
evident bad faith and manifest partiality cause undue injury to one
SCRA 70, 81-82.) where the Court ruled that the "long delay (three
Pedro Almendras by then and there inducing Pedro Almendras to
years") in the termination of the preliminary investigation by the
sign a blank paper, on which a statement was later typed and
Tanodbayan" was violate of the Constitutional right of "speedy
attributed as his (Almendras) statement in which statement
disposition" of cases because "political motivations played a vital
allegedly acknowledged that the whole amount awarded to him by
role in activating and propelling the prosecutorial process in this
the NLRC in a decision in NCR Case No. 10-731-81 had been paid
case.
by Alejandro Tapang and therefore, he is no longer pursuing any

688
The Special Prosecutor also cited Alvizo vs.
Sandiganbayan (footnote 220 SCRA 55, 64) alleging that, as in
Alvizo, the petitioner herein was "insensitive to the implications and
contingencies thereof by not taking any step whatsoever to
accelerate the disposition of the matter."

We cannot accept the Special Prosecutor's ratiocination. It is the

duty of the prosecutor to speedily resolve the complaint, as
mandated by the Constitution, regardless of whether the petitioner
did not object to the delay or that the delay was with his
acquiescence provided that it was not due to causes directly
attributable to him.

Consequently, we rule that the Sandiganbayan gravely abused its

discretion in not quashing the information for violation of
petitioner's Constitutional right to the speedy disposition of the case
in the level of the Special Prosecutor, Office of the Ombudsman. 13

We deem it unnecessary to resolve the first in view of the foregoing

ruling.

WHEREFORE, the Court hereby GRANTS the petition and ANNULS

the minute resolution of the Sandiganbayan, dated December 24,
1992, in Criminal Case No. 17673. The Court directs the
Sandiganbayan to dismiss the case, with costs de oficio.

The temporary restraining order heretofore issued is made

permanent. No costs in this instances. SO ORDERED.

689
G.R. No. 218040 April 17, 2017
JUANITO VICTOR C. REMULLA
vs.
SANDIGANBAYAN
MENDOZA, J.:
This is a petition for certiorari seeking to annul and set aside the
February 2, 2015[1] and March 20, 2015[2] Resolutions of the
Sandiganbayan Second Division in Criminal Case No. SB-14-CRM-
0432, which dismissed the case filed by Juanito Victor C. Remulla
(Remulla) against respondent Erineo S. Maliksi (Maliksi) for
violation of Section 3 (e) of Republic Act (R.A.) No. 3019 or the
Anti-Graft and Corrupt Practices Act.
On August 12, 2005, Remulla filed a criminal complaint against
Maliksi before the Office of the Ombudsman (Ombudsman) for
violation of Section 3 (e) of R.A. No. 3019. He alleged that Maliksi,
as governor of Cavite, caused the purchase of certain medical
supplies from Allied Medical Laboratories Corporation in November
2002 without conducting any public bidding, thereby giving
unwarranted benefit or preference to it. On December 15, 2005,
Maliksi filed his counter-affidavit.[3]
The Ombudsman Ruling
After almost nine (9) years, in a resolution, dated August 27, 2014,
the Ombudsman found probable cause against Maliksi for violation
of Section 3 (e) of R.A. No. 3019.[4]
Maliksi filed his motion for reconsideration, arguing that there was
no probable cause and that there was a violation of his right to a
speedy disposition of his case.[5] In its order, dated October 22,
2014, the Ombudsman denied the said motion for
reconsideration.[6]
In November 2014, the Ombudsman filed an information for
violation of Section 3 (e) of R.A. No. 3019 against Maliksi before
the Sandiganbayan. Maliksi then filed his Motion to
Dismiss,[7] dated November 20, 2014, alleging that the finding of
probable cause against him was null and void, and that his
constitutional right to a speedy disposition of his case was violated.
According to him, the 9-year delay in the proceedings caused him
undue prejudice.
The Sandiganbayan Ruling
In its February 2, 2015 Resolution, the Sandiganbayan found that
Maliksi's right to a speedy disposition of his case was violated. Thus,
it dismissed the case against him. It stated that the explanation
provided by the Ombudsman, through the Office of the Special
Prosecutor (OSP), was insufficient to justify its 9-year delay in the
resolution of Maliksi's case. The Sandiganbayan noted that the
interval was caused by the delay in the routing or transmission of
the records of the case, which was unacceptable. Citing Coscolluela
v. Sandiganbayan,[8] (Coscolluela), it wrote that it was
inconsequential to determine whether an accused had followed up
on his case because it was not his duty to do so. The Sandiganbayan
opined that it was the Ombudsman's responsibility to expedite the
resolution of the case within a reasonable time.
On February 12, 2015, the OSP filed a Motion for Partial
Reconsideration[9] arguing that the delay in the preliminary
investigation was neither whimsical nor capricious, considering that
Maliksi did not complain on the delay.
In its assailed resolution, dated March 20, 2015, the
Sandiganbayan denied the motion for partial reconsideration. It
reiterated that the fact-finding of the case, which lasted for three
(3) years, and the preliminary investigation, which lasted for six (6)
years, were due to mechanical routing and avoidable delay. The
Sandiganbayan found that such delays were unnecessary and
unacceptable. It also echoed Coscolluela that it was not the duty of
the respondent in a preliminary investigation to follow up on the
prosecution of his case.
690
Hence, this petition.
Issue
WHETHER THE SANDIGANBAYAN COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE CRIMINAL CASE
AGAINST RESPONDENT.[10]
Remulla argues that the Sandiganbayan should not have dismissed
the case as there was a finding of probable cause; that there was
no violation of Maliksi's right to a speedy disposition of his case
because he did not promptly assert his right; that mere
mathematical reckoning of the time involved is not sufficient to
invoke inordinate delay; that in Tilendo v.
Ombudsman[11] (Tilendo), there must be an active assertion of the
right to a speedy disposition of cases before the Ombudsman; and
that Coscolluela is inapplicable because the petitioner therein was
completely unaware of his pending case.
In his Comment,[12] Maliksi countered that the petition was
defective because it was filed by Remulla, a private party. He
underscored that only the Office of the Solicitor General (OSG), or,
in certain instances, the OSP, may bring or defend actions for or on
behalf of the Republic of the Philippines. Maliksi also pointed out
that the delay of nine (9) years in the preliminary investigation of
his case was clearly an inordinate delay. He cited the cases of Tatad
v. Tanodbayan[13] and People v. Sandiganbayan,[14] where even
delays of even shorter period of years were considered violations
of the right to speedy disposition of cases. Finally, Maliksi argued
that the petition was a violation of his constitutional right against
double jeopardy because a dismissal of criminal case due to the
right to speedy disposition of a case is tantamount to an acquittal.
In his Reply,[15] Remulla averred that he had the legal standing to
file this subject petition as a taxpayer or a citizen because public
funds were illegally disbursed. He contended that the length of
delay was not the only factor that must be considered in
determining inordinate delay. Remulla invoked the cases
of Guerrero v. CA[16] (Guerrero), Bernat v.
Sandiganbayan[17] (Bernat) and Tello v. People[18] (Tello), where
the failure of the accused to assert his right to a speedy disposition
of his case was deemed a waiver for such right. He pointed out that
Maliksi knew that there was a pending case against him but he
never asserted his right to a speedy disposition of his case during
the preliminary investigation. Finally, Remulla claimed that there
was no violation of the right against double jeopardy as the
dismissal of Maliksi's case was tainted with grave abuse of
discretion.
In its Comment,[19] the Ombudsman, through the OSP, argued that
Court must provide a definitive ruling on the concept of inordinate
delay because the current model was still in a state of perpetual
flux. It opined that Coscolluela was inapplicable in the present case
as Maliksi was aware of the pending case against him before the
Ombudsman. The OSP also emphasized that the Sandiganbayan
merely dismissed the case against Maliksi by considering the sole
factor of length of delay. It cited the case of Barker v.
Wingo,[20]where the defendant's assertion of, or failure to assert,
his right to a speedy trial was one of the factors to be considered
in an inquiry whether there was deprivation of such right. The OSP
echoed the argument of Remulla that an accused who does not take
any step whatsoever to accelerate the disposition of the case was
deemed to have slept on his right and have given acquiesces to the
supervening delays.
The Court's Ruling
The petition is bereft of merit.
The petition was filed by a private party
Procedural law mandates that all criminal actions, commenced by
a complaint or an information, shall be prosecuted under the
direction and control, of a public prosecutor. In appeals of criminal
cases before the Court of Appeals (CA) and before this Court, the
OSG is the appellate counsel of the People, pursuant to Section 35
(l), Chapter 12, Title III, Book IV of the 1987 Administrative
Code.[21] In certain instances, the OSP represented the People,
when it involved criminal cases within the jurisdiction of the
Sandiganbayan.[22]
The present case challenges the dismissal of a criminal case due to
the violation of the right to speedy disposition of cases. The petition
filed before this Court was initiated by Remulla in his capacity as a
private complainant without the intervention of either the OSG or
the OSP. Although he claims that he has legal standing as a
taxpayer, the present case is criminal in nature and the People is
the real party in interest.[23] Remulla captioned his petition as
"People of the Philippines v. Sandiganbayan (Second Division) and
Erineo S. Maliksi"[24] but it is clear that he does not represent the
People.
Only on rare occasions when the offended party may be allowed to
pursue the criminal action on his own behalf such as when there is
a denial of due process,[25] or where the dismissal of the case is
capricious shall certiorari lie.[26] As will be discussed later, Remulla
failed to qualify in any of these exceptional circumstances.
Accordingly, he has no legal personality to assail the dismissal of
the criminal case against Maliksi on the ground of violation of the
right to a speedy disposition of his case.
The right to a speedy disposition of cases is a relative concept
The right to a speedy disposition of a case, like the right to a speedy
trial,[27] is deemed violated only when the proceeding is attended
by vexatious, capricious, and oppressive delays; or when
unjustified postponements of the trial are asked for and secured,
or when without cause or justifiable motive, a long period of time
is allowed to elapse without the party having his case tried. Equally
applicable is the balancing test used to determine whether a
defendant has been denied his right to a speedy trial, or a speedy
disposition of a case for that matter, in which the conduct of both
the prosecution and the defendant are weighed.[28]
More than a decade after the 1972 leading U.S. case of Barker v.
Wingo[29] was promulgated, this Court, in Martin v. Ver,[30] began
adopting the "balancing test" to determine whether a defendant's
right to a speedy trial and a speedy disposition of cases has been
violated. As this test necessarily compels the courts to approach
such cases on an ad hoc basis, the conduct of both the prosecution
and defendant are weighed apropos the four-fold factors, to wit:
(1) length of the delay; (2) reason for the delay; (3) defendant's
assertion or non-assertion of his right; and (4) prejudice to
defendant resulting from the delay. None of these elements,
however, is either a necessary or sufficient condition; they are
related and must be considered together with other relevant
circumstances. These factors have no talismanic qualities as courts
must still engage in.a difficult and sensitive balancing process.[31]
In this case, Remulla argues that the cases of Tilendo, Guerrero,
Bernat, and Tello dictate that it is mandatory for a respondent or
accused to actively assert his right to a speedy disposition of his
case before it may be dismissed on the said ground. He insists that
Maliksi failed to follow up on his case during the preliminary
investigation, hence, he cannot invoke his right to a speedy
disposition of his case. Further, he avers that the doctrine
in Coscolluela, where the Court held that there was no need for the
respondent to follow up his case, is not controlling and it is only
applicable when the respondent is completely unaware of the
preliminary investigation against him.
To resolve these issues, the first set of cases cited by Remulla must
be examined to determine whether it is mandatory for a respondent
or accused to assert his right to a speedy disposition of his case.
Also, the case of Coscolluela and its related cases must be
evaluated whether the respondent or accused has the obligation to
follow up his case.
Tilendo, Guerrero, Bernat, and Tello cases
In Tilendo, the petitioner therein invoked his right to a speedy
disposition of his case because the preliminary investigation by the
NBI lasted for three (3) years before it filed a complaint before the
691
Ombudsman. In denying his petition, the Court held that there was
no unreasonable delay to speak of because the preliminary
investigation stage only began after the NBI filed its complaint
against Tilendo. Even assuming there was delay in the termination
of the preliminary investigation, Tilendo did not do anything to
accelerate the disposition of his case.
In Guerrero, the last pleading before the Court of First Instance was
filed on December 21, 1979. The case was later re-assigned to two
other judges, and on March 14, 1990, the last judge found out that
the transcript of stenographic notes (TSN) was incomplete and
ordered the parties to have the same completed. The petitioner
therein filed a motion to dismiss on the ground that his right to a
speedy trial had been violated. The Court ruled that there was no
such violation because it was only after the new judge reset the
retaking of the testimonies that the petitioner asserted his right. It
was also held that a judge could hardly be faulted for the delay
because he could not have rendered the decision without the TSN.
The Court observed that the conduct of the case could have a
different dimension had the petitioner made some overt act to
assert his right.
Later, in Bernat, the criminal case against the petitioner therein
was submitted for resolution before the Sandiganbayan on August
23, 1994. It was reassigned to Justice Ma. Cristina G. Cortez-
Estrada upon her assumption of office on November 3, 1998; and
sometime in 2002, she found out that some of the TSN were
missing. Thus, the parties were ordered to attend a conference to
discuss the matter. Instead of attending the conference, the
petitioner therein filed a motion asserting his right to a speedy trial.
In dismissing his argument, the Court cited the case
of Guerrerowhere the TSN were also lost and the judge had to
retake the testimonies. It noted that the petitioner failed to assert
his rights. The Court also reiterated the ruling in Guerrero that the
case could have taken a different dimension had the petitioner
actively asserted his right to a speedy trial.
Similarly, Tello echoed the doctrine in Bernat because the
petitioner therein did not take any step to accelerate the disposition
of his case. He only invoked his right to speedy trial after the
Sandiganbayan promulgated its decision convicting him for
malversation of public funds.
Coscolluela and its related cases
In Coscolluela, the petitioners therein were investigated for
violation of Section 3(e) of R.A. No. 3019. In a resolution, dated
March 27, 2003, the assigned graft investigator found probable
cause against the petitioners. The Ombudsman, however, only
approved the said resolution on May 21, 2009 and filed the
information on June 19, 2009. The petitioners sought to dismiss the
case as the delay of six (6) years violated their right to a speedy
disposition of their case. In upholding the position of the
petitioners, the Court ruled that there was unjustified delay in the
preliminary investigation of the case. The Ombudsman could not
give a sufficient justification why it took six (6) years before it
approved the resolution of the graft investigator. The Court also
held that it was not the petitioners' duty to follow up on the
prosecution of their case. The petitioners therein were not informed
of the ongoing preliminary investigation against them.
Coscolluela relied on the case of Duterte v.
Sandiganbayan[32] (Duterte) to justify that there was no
requirement to follow up a case. In the said case, the petitioners
were required to file a comment, instead of a counter-affidavit. The
preliminary investigation was delayed for four (4) years. They could
not have urged the speedy resolution of their case because they
were completely unaware that the investigation was still ongoing.
The Court also noted therein that the Ombudsman failed to present
any plausible, special or even novel reason which could justify the
4-year delay in terminating its investigation and the incident did
not involve complicated factual and legal issues.
Earlier, in Cervantes v. Sandiganbayan[33] (Cervantes), a complaint
for violation of Section 3(e) of R.A. No. 3019 was filed before the
Tanodbayan. On October 16, 1986, the petitioner therein filed an
affidavit to answer the allegations against him. On May 18, 1992,
or after almost six (6) years, an information was filed by the OSP
with the Sandiganbayan. The petitioner asserted his right to a
speedy disposition of his case. The Court upheld his right because
the OSP's explanation that no political motivation appeared to have
tainted the prosecution of the case was insufficient reason to
excuse the inordinate delay. It was also ruled therein that "[i]t is
the duty of the prosecutor to speedily resolve the complaint, as
mandated by the Constitution, regardless of whether the
petitioner did not object to the delay or that the delay was with
his acquiescence provided that it was not due to causes directly
attributable to him."[34]
More recently, in People v. Sandiganbayan[35] (People), a complaint
was filed against the private respondents therein on December 28,
1994 before the Ombudsman. The last counter-affidavit was filed
by the private respondents on March 11, 1996. On July 10, 1996,
the special prosecution officer issued a memorandum
recommending the filing of violation of Section 3 (e) of R.A. 3019
and was approved by the Deputy Ombudsman. Instead of filing the
information, however, the case was subjected to several "thorough
review and reevaluation." It was only on October 6, 2009 that the
criminal informations were filed before the Sandiganbayan.
Eventually, the private respondents implored their right to speedy
disposition of their case.
It was held therein that there was inordinate delay of twelve (12)
years from the time that the last counter-affidavit was filed until
the informations were lodged before the court. The explanation of
the OSP that the case was subjected to a painstaking review and
that the Ombudsman had to transfer to its new building Were not
given credence by the Court. It emphasized that the Ombudsman
simply failed to timely exercise its discretion as to whether or not
to file criminal cases against the private respondents. The Court did
not sustain the OSP's argument that the respondents must be
blamed for not taking any step whatsoever to accelerate the
disposition of the matter. Citing Cervantes, the Court reiterated
that it was the duty of the prosecutor to expedite the prosecution
of the case regardless of the fact that the accused did not object to
the delay.
Finally, in Inocentes v. People[36] (Inocentes), a complaint for
violation of Section 3 (e) was filed before the Ombudsman against
the petitioner therein. Following the denial of his motion for
reconsideration on November 14, 2005, the prosecution filed the
informations with the Regional Trial Court (RTC) Tarlac City. On
March 14, 2006, however, the Ombudsman ordered the withdrawal
of the informations. From this point, it took almost six (6) years, or
only on May 2, 2012, before the informations were filed with the
Sandiganbayan. The Court opined that there was inordinate delay
in the disposition of the petitioner's case because it took six (6)
years before his case and the records thereof was transferred from
the RTC to the Sandiganbayan. The argument of the OSP that the
petitioner had no right to complain about the delay because he
failed to seasonably invoke his right was not upheld by the Court.
It reiterated the doctrine of Coscolluela that it was not the
petitioners' duty to follow up on the prosecution of their case.
Harmonizing the two sets of cases
The first set of cases shows that the criminal cases were not
dismissed because of the non-assertion of the accused of their right
to a speedy disposition of cases or speedy trial. Other factors in the
balancing test were also considered by the Court, particularly, the
reason for the delay in the proceedings and the prejudice caused
by the delay.
In Guerrero and Bernat, it was held that the delay was acceptable
because there was a necessity to retake the testimonies of the
witnesses due to the lost TSN. The courts could not have
adjudicated the case without the TSN. On the other hand,
in Tilendo, the Court accepted the explanation of the OSP that there
was no inordinate delay because the NBFs inquiry was not part of
the preliminary investigation. Hence, as the length of delay in these
cases were properly justified by the prosecution and the accused
therein failed to take steps to accelerate their cases, the Court
found that the there was no prejudice caused, which would warrant
the assertion of their right to a speedy disposition of cases.
692
In the second set of cases, the lengthy delay in the proceeding
against the accused therein was not satisfactorily explained.
In Cervantes, the prosecution provided a lackluster excuse that
there was no inordinate delay because the case was not politically
motivated, in People, the filing of the case in court was drastically
delayed because it was subjected to unnecessary reviews, and the
Ombudsman basically failed to decide whether to file the case or
not. In Inocentes, there was an unwarranted delay in the filing of
the case due to the lethargic transfer of the records from the RTC
to the Sandiganbayan. Finally, in Coscolluela, the Ombudsman
could not give an explanation why the preliminary investigation was
delayed for six years.
Essentially, the Court found in those cases that the State miserably
failed to give an acceptable reason for the extensive delay. Due to
the manifest prejudice caused to the accused therein, the Court no
longer gave weighty consideration to their lack of objection during
the period of delay. It was emphasized in those cases that it was
the duty of the prosecutor to expedite the prosecution of the case
regardless if the accused failed to object to the delay.
Based on the foregoing, there is no conflict between the first and
the second set of cases. In the first set, the Court did not solely
rely on the failure of the accused to assert his right; rather, the
proper explanation on the delay and the lack of prejudice to the
accused were also considered therein. In the same manner, the
Court in the second set of cases took into account several factors
in sustaining the right of the accused to a speedy disposition of
cases, such as the length of delay, the failure of the prosecution to
justify the period of delay, and the prejudice caused to the accused.
The utter failure of the prosecution to explain the delay of the
proceedings outweighed the lack of follow ups from the accused.
Accordingly, both sets of cases only show that "[a] balancing test
of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on
an ad hoc basis."[37] To reiterate, none of the factors in the
balancing test is either a necessary or sufficient condition; they are
related and must be considered together with other relevant
circumstances. Corpus v. Sandiganbayan[38]thoroughly explained
how the factors of the balancing test should be weighed,
particularly the prejudiced caused by the delay, to wit:
xxx Prejudice should be assessed in the light of the interest
of the defendant that the speedy trial was designed to
protect, namely: to prevent oppressive pre-trial
incarceration; to minimize anxiety and concerns of the
accused to trial; and to limit the possibility that his defense
will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system. There is also
prejudice if the defense witnesses are unable to recall accurately
the events of the distant past. Even if the accused is not imprisoned
prior to trial, he is still disadvantaged by restraints on his liberty
and by living under a cloud of anxiety, suspicion and often, hostility.
His financial resources may be drained, his association is curtailed,
and he is subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the
burden of proving its case beyond reasonable doubt. The passage
of time may make it difficult or impossible for the government to
carry its burden. The Constitution and the Rules do not require
impossibilities or extraordinary efforts, diligence or exertion from
courts or the prosecutor, nor contemplate that such right shall
deprive the State of a reasonable opportunity of fairly prosecuting
criminals. As held in Williams v. United States, for the government
to sustain its right to try the accused despite a delay, it must show
two things: (a) that the accused suffered no serious prejudice
beyond that which ensued from the ordinary and inevitable delay;
and (b) that there was no more delay than is reasonably
attributable to the ordinary processes of justice.
Closely related to the length of delay is the reason or
justification of the State for such delay. Different weights
should be assigned to different reasons or justifications
invoked by the State. For instance, a deliberate attempt to delay
the trial in order to hamper or prejudice the defense should be
weighted heavily against the State. Also, it is improper for the
prosecutor to intentionally delay to gain some tactical advantage
over the defendant or to harass or prejudice him. On the other
hand, the heavy case load of the prosecution or a missing witness
should be weighted less heavily against the State. Corollarily,
Section 4, Rule 119 of the Revised Rules of Criminal Procedure
enumerates the factors for granting a continuance.[39] [Emphases
supplied]
Remulla argues that the assertion or non-assertion of the right to
a speedy disposition of cases determines whether the court must
dismiss the case for inordinate delay or continue the proceedings.
Such argument, however, fails to persuade. It must be emphasized
that the balancing test is a relative and flexible concept. The factors
therein must be weighed according to the different facts and
circumstances of each case. The courts' are given wide judicial
discretion in analyzing the context of the case, bearing in mind the
prejudice caused by the delay both to the accused and the State.
In addition, there is no constitutional or legal provision which states
that it is mandatory for the accused to follow up his case before his
right to its speedy disposition can be recognized. To rule otherwise
would promote judicial, legislation where the Court would provide
a compulsory requisite .not specified by the constitutional
provision. It simply cannot be done, thus, the ad hoc characteristic
of the balancing test must be upheld.
Likewise, contrary to the argument of the OSP, the U.S. case
of Barker v. Wingo,[40] from which the balancing test originated,
recognizes that a respondent in a criminal case has no compulsory
obligation to follow up on his case. It was held therein that "[a]
defendant has ho duty to bring himself to trial; the State has that
duty as well as the duty of insuring that the trial is consistent with
due process."[41]
Finally, Remulla argues that the doctrine in Coscolluela - that the
accused has no duty to follow up on the prosecution of their case -
only applies to cases where the accused is unaware of the
preliminary investigation. A review of related and subsequent
cases, however, validates the said doctrine that it is applicable even
if the accused was fully informed and had participated in the
investigation. In Cervantes, the petitioner filed his affidavit before
the Tanodbayan to answer the allegations against him. In People,
the respondents therein were able to file their counter-affidavit with
the Ombudsman. In Inocentes, the petitioner filed a motion for
reconsideration before the Ombudsman. In all these cases, the
accused were completely informed of the preliminary investigation
against them and they were able to participate in the proceedings
before the delays were incurred. In spite of this, the Court applied
the doctrine in Coscolluela because it was the Ombudsman's
responsibility to expedite the proceedings within the bounds of
reasonable timeliness in view of its mandate to promptly act on all
complaints lodged before it.
In fine, it has been settled that the factors in the balancing test
must be given different consideration and weight based on the
factual circumstances of each case. Applying such principle in this
case, the Court can now determine whether or not the Ombudsman
committed inordinate delay and violated Maliksi's right to a speedy
disposition of his case.
The Ombudsman failed to justify the delay in the proceedings
As indicated in the resolution, dated February 2, 2015, of the
Sandiganbayan, the OSP gave the following explanation regarding
the delay in the proceedings against Maliksi as follows:
In justifying the length of time that it took the OMB to resolve the
case, the prosecution meticulously explains that three different
cases were filed against the accused, two of which were from the
complaint of Juan (sic) Victor C. Remulla for Violation of the Anti-
Graft Law and for Grave Misconduct, which was received by the
Office of the Deputy Ombudsman for Luzon on August 7,
2005 (Remulla complaints). The third case was through the
Feedback Report of PCSO Fund Allocation Department Manager
Teresita Brazil regarding the "Approved Financial Assistance of
693
P10M to province of Cavite c/o Gov. Ayong Maliksi," which was
transmitted to the Ombudsman Central Office in 2005 (PCSO
complaint). This was allegedly assigned for fact-finding
investigation in July 3, 2006 under CPL-C-05-0188. Upon
completion of the investigation, the complete record of the third
case was said to have been forwarded to the Office of the Deputy
Ombudsman for Luzon on September 26, 2008 for consolidation
with the two cases initiated by complainant Remulla.
Since the complete records of the Remulla cases, including the
proposed Resolution and Decision, had already been submitted to
the Ombudsman Proper for approval on January 9, 2007, through
the Central Record Division, the Deputy Ombudsman for Luzon sent
a Memorandum dated October 24, 2008 to the Ombudsman
requesting that the third PCSO case be incorporated with the two
Remulla cases already resolved. This Memorandum Request was
allegedly received by the Ombudsman Proper on June 4, 2009and
approved by then Ombudsman Merceditas N. Gutierrez. On April
6, 2010, the Chief Administrative Officer of the Office of the Deputy
Ombudsman for Luzon forwarded the complete record of the third
PCSO case to the Chief of the Central Records Division for
incorporation with the two Remulla cases.
Continuing to the recital of events, the prosecution states that the
cases against the accused were resolved by the Office of the Deputy
Ombudsman for Luzon as early as 2007 and were forwarded in the
same year to the Ombudsman Proper for final approval.
Unfortunately, final action on the Resolution was allegedly
overtaken by disruptive incidents and political events like the 2010
hostage-taking at the Quirino Grandstand and the impeachment of
Ombudsman Gutierrez that led to her resignation in April
2011.[42] [Emphases supplied]
The length of delay in the proceedings of Maliksi's case must first
be determined. In People v. Sandiganbayan,[43] it was held that
inordinate delay should be computed from the time of the fact-
finding investigation until the completion of the preliminary
investigation by the Ombudsman. The Court expounded that "[t]he
guarantee of speedy disposition under Section 16 of Article III of
the Constitution applies to all cases pending before all judicial,
quasi-judicial or administrative bodies. The guarantee would be
defeated or rendered inutile if the hair-splitting distinction by the
State is accepted. Whether or not the fact-finding investigation was
separate from the preliminary investigation conducted by the Office
of the Ombudsman should not matter for purposes of determining
if the respondents' right to the speedy disposition of their cases had
been violated."[44]
Applying the foregoing rule, the delay in Maliksi's case started from
the fact-finding investigation of the Ombudsman when he filed his
counter-affidavit in Remulla cases on December 15, 2005 until the
completion of the PCSO case on October 24, 2008, or a span of
three (3) years. At that point, the preliminary investigation began,
until it was terminated on August 27, 2014 and the information was
filed before the court.in November 2014, or a period of six (6)
years. Thus, the Sandiganbayan observed that the delay incurred
in the proceedings lasted for a total period of nine (9) years. Even
if the Court excludes the fact-finding stage of three (3) years, there
was still six (6) years of inordinate delay.
As to the reason for the delay, the Court is of the view that the
explanation provided by the OSP fails to justify the delay of six (6)
years in the resolution of the case against Maliksi because, first,
there was a delay in the approval of the Remulla complaints by the
Ombudsman. These complaints were filed in 2005 and Maliksi filed
his counter-affidavit in the same year, on December 15, 2005.
According to the OSP, the proposed resolution and decision for the
Remulla cases were submitted to the Ombudsman as early as
January 9, 2007 for approval. The resolution and decision,
however, remained unacted by the Ombudsman so much so that it
was only after one (1) year and nine (9) months that the Deputy
Ombudsman for Luzon was able to send a memorandum, dated
October 24, 2008, for their consolidation with the PCSO case. No
explanation for the Ombudsman's inaction on the Remulla cases
was advanced by the OSP.Second, while the memorandum for
consolidation of the Remulla and PCSO cases was dated October
24, 2008, it was only received by the Ombudsman on June 4, 2009.
Evidently, the mere routing or transfer of the memorandum from
the Deputy Ombudsman for Luzon to the Ombudsman took almost
eight (8) months. Then Ombudsman Gutierrez approved the
memorandum for consolidation on an unspecified date,
Third, notwithstanding the approval of' the consolidation by the
Ombudsman, it was only on April 6, 2010 when the Chief
Administrative Officer of the Deputy Ombudsman for Luzon
forwarded the complete record of the third PCSO case to the Chief
of the Central Records Division. As the approval of the
memorandum on consolidation was undated, the Sandiganbayan
assumed that the cause of delay was either the Ombudsman's
belated approval or the Chief Administrative Officer of the Deputy
Ombudsman's delay in the transmittal of the case records. In either
case, a delay of ten (10) months for the implementation of a
memorandum for consolidation is unacceptable.
Noticeably, the transfer of these memoranda and records are
ministerial in nature and does not require the exercise of discretion.
Thus, the Court is baffled on how these routine acts could take so
long to be accomplished, As properly observed by the
Sandiganbayan, routine matters could have been exercised at a
faster pace in order to avoid unnecessary delay that expectedly
bears heavily on litigants.[45]
Fourth, from the time that the consolidation of the Remulla and
PCSO cases were approved on April 6, 2010, it took four (4) years,
or until July 8, 2014, before the joint resolution finding probable
cause against Maliksi was issued by the Ombudsman. There is a
void of account as to what exactly happened to the case during this
4-year period. Even more baffling was that although the cases were
consolidated, the information filed in November 2014 only involved
the Remulla case.
Lastly, the OSP sought the understanding of the Sandiganbayan
and explained that the resolution of the consolidated cases was
overtaken by disruptive events such as the 2010 hostage-taking at
the Quirino Grandstand and the impeachment complaint against
the Ombudsman Gutierrez. These excuses, however, could hardly
be considered as enough reason to warrant the delay in the
proceedings. Obviously, these events have no direct relation to the
Remulla and PCSO cases to affect their speedy resolution. The
functions of the Ombudsman under the Constitution are not
suspended by the occurrence of unrelated events to its mandate,
whether political or not. Moreover, to sustain the argument of the
OSP would set a perilous precedent as the delayed cases pending
before the Ombudsman from 2010 to 2014 can simply be
overlooked by citing these occasions.
Based on the foregoing, the explanation provided by the OSP falls
short of the reasonable justification to authorize delay in the
proceedings. It was downright unnecessary to prolong the
proceedings for a period of nine (9) years. To summarize, the initial
delay began when the Ombudsman did not act with dispatch on the
approval or disapproval of the proposed resolution and decision in
the Remulla. Due to its delay, the Deputy Ombudsman for Luzon
was able to send a memorandum for consolidation with the PCSO
case. The mere routing or transfer of the memorandum to the
Ombudsman incurred eight (8) months of delay. Then, when the
memorandum was approved, it took ten (10) months before the
records could be transferred from the Deputy Ombudsman for
Luzon to the Ombudsman. Finally, for a period of four (4) years,
the consolidated cases sat at the Ombudsman. As the OSP did not
submit an explanation as to the status of the case in that 4-year
period, the Court can only conduct guesswork on the cause of its
delay.
Had the Ombudsman immediately approved or disapproved the
proposed resolution and decision submitted to its office on January
9, 2007, then the case would have been promptly acted upon. If
filed before the Sandiganbayan, the prosecution and the defense
could have timely presented their case. Instead, the Ombudsman
chose inaction which led to a chain of delays lasting until July 8,
2014. After the lapse of nine (9) years of being kept in the dark,
Maliksi could not have had the opportunity to timely present, his
case in court due to the extensive delay in the preliminary
investigation. Certainly, this protracted period of uncertainty over
694
his criminal case caused him prejudice, living under a cloud of
anxiety, suspicion and even, hostility.
Further, in light of the circumstances of this case, the Court does
not give great weight to Maliksi's lack of objection over the delay
because the OSP miserably failed to defend the Ombudsman's
inaction. The prosecution could not give an acceptable reason to
justify the 9-year interval before the case was filed in court. The
proceedings were marred by the delay in the mechanical transfer
of documents and records. No steps were taken by the Ombudsman
to ensure that the preliminary investigation would be resolved in a
timely manner. Clearly, the failure of the prosecution to justify the
9-year interval before the case was filed in court far outweighs
Maliksi's own inaction over the delay. As articulated in Coscolluela,
Duterte, Cervantes, People, and Inocentes, the Court reiterates
that it is the duty of the prosecutor to expedite the prosecution of
the case regardless of whether or not the accused objects to the
delay.
Likewise, Remulla's argument that the Sandiganbayan only took
into account the length of delay in the proceedings deserves scant
consideration. Aside from the length of delay, the anti-graft court
thoroughly discussed the Ombudsman's failure to give a suitable
reason for the delay and the prejudice it had caused to Maliksi. The
latter's lack of follow up with his case was not given much weight
because of the prosecution's manifest failure to justify the
protracted lull in the proceedings. The Sandiganbayan, after
properly taking into consideration all the relevant factors in the
balancing test and gave different weight on each factor based on
the particular circumstances of this case, came to a conclusion that
the Ombudsman committed inordinate delay. The case underwent
the intricate and difficult balancing test before Maliksi's right to a
speedy disposition of his case was sustained. Thus, the Court rules
that the Sandiganbayan did not commit a grave abuse of discretion
in dismissing the criminal case against Maliksi.
To conclude, the Court finds it proper to reiterate the underlying
principle of the constitutional right to a speedy disposition of cases
in the landmark case of Tatad v. Sandiganbayan:[46]
xxx Substantial adherence to the requirements of the law governing
the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law.
Not only under the broad umbrella of the due process clause, but
under the constitutional guarantee of "speedy disposition" of cases
as embodied in Section 16 of the Bill of Right (both in the 1973 and
the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. Xxx
It has been suggested that the long delay in terminating the
preliminary investigation should not be deemed fatal, for even the
complete absence of a preliminary investigation does not warrant
dismissal of the information. True — but the absence of a
preliminary investigation can be corrected by giving the accused
such investigation. But an undue delay in the conduct of a
preliminary investigation cannot be corrected for now, until man
has not yet invented a device for setting back time.[47]
WHEREFORE, the petition is DENIED. The February 2, 2015 and
March 20, 2015 Resolutions of the Sandiganbayan Second Division
in SB-14-CRM-0432 are AFFIRMED in toto.
SO ORDERED.
G.R. No. 85215 July 7, 1989
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6,
Regional Trial Court, First Judicial Region, Baguio City, and
FELIPE RAMOS, respondents.
NARVASA, J.:
What has given rise to the controversy at bar is the equation by the
respondent Judge of the right of an individual not to "be compelled
to be a witness against himself" accorded by Section 20, Article III
of the Constitution, with the right of any person "under
investigation for the commission of an offense . . . to remain silent
and to counsel, and to be informed of such right," granted by the
same provision. The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the
Philippine Airlines (PAL), assigned at its Baguio City station. It
having allegedly come to light that he was involved in irregularities
in the sales of plane tickets, 1 the PAL management notified him of
an investigation to be conducted into the matter of February 9,
1986. That investigation was scheduled in accordance with PAL's
Code of Conduct and Discipline, and the Collective Bargaining
Agreement signed by it with the Philippine Airlines Employees'
Association (PALEA) to which Ramos pertained.2
On the day before the investigation, February 8,1986, Ramos gave
to his superiors a handwritten notes 3 reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE
THAT HE IS WILLING TO SETTLE
IRREGULARITIES ALLEGEDLY CHARGED VS.
HIM IN THE AMT. OF P 76,000 (APPROX.)
SUBJECT TO CONDITIONS AS MAY BE IMPOSED
BY PAL ON OR BEFORE 1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos
At the investigation of February 9, 1986, conducted by the PAL
Branch Manager in Baguio City, Edgardo R. Cruz, in the presence
of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos
was informed "of the finding of the Audit Team." Thereafter, his
answers in response to questions by Cruz, were taken down in
writing. Ramos' answers were to the effect inter alia that he had
not indeed made disclosure of the tickets mentioned in the Audit
Team's findings, that the proceeds had been "misused" by him, that
although he had planned on paying back the money, he had been
prevented from doing so, "perhaps (by) shame," that he was still
willing to settle his obligation, and proferred a "compromise x x to
pay on staggered basis, (and) the amount would be known in the
next investigation;" that he desired the next investigation to be at
the same place, "Baguio CTO," and that he should be represented
therein by "Shop stewardees ITR Nieves Blanco;" and that he was
willing to sign his statement (as he in fact afterwards did). 4 How
the investigation turned out is not dealt with the parties at all; but
it would seem that no compromise agreement was reached much
less consummated.
About two (2) months later, an information was filed against Felipe
Ramos charging him with the crime of estafa allegedly committed
in Baguio City during the period from March 12, 1986 to January
695
29, 1987. In that place and during that time, according to the
indictment, 5 he (Ramos) —
.. with unfaithfulness and/or abuse of confidence, did then and
there willfully ... defraud the Philippine Airlines, Inc., Baguio
Branch, ... in the following manner, to wit: said accused ... having
been entrusted with and received in trust fare tickets of passengers
for one-way trip and round-trip in the total amount of P76,700.65,
with the express obligation to remit all the proceeds of the sale,
account for it and/or to return those unsold, ... once in possession
thereof and instead of complying with his obligation, with intent to
defraud, did then and there ... misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in
spite of repeated demands, ... failed and refused to make good his
obligation, to the damage and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not
Guilty," and trial thereafter ensued. The prosecution of the case
was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a
written offer of evidence dated June 21, 1988,6which included "the
(above mentioned) statement of accused Felipe J. Ramos taken on
February 9, 1986 at PAL Baguio City Ticket Office," which had been
marked as Exhibit A, as well as his "handwritten admission x x given
on February 8, 1986," also above referred to, which had been
marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s
Evidence."7 Particularly as regards the peoples' Exhibit A, the
objection was that "said document, which appears to be a
confession, was taken without the accused being represented by a
lawyer." Exhibit K was objected to "for the same reasons interposed
under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted
all the exhibits "as part of the testimony of the witnesses who
testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared
Exhibit A "inadmissible in evidence, it appearing that it is the
statement of accused Felipe Ramos taken on February 9, 1986 at
PAL Baguio City Ticket Office, in an investigation conducted by the
Branch Manager x x since it does not appear that the accused was
reminded of this constitutional rights to remain silent and to have
counsel, and that when he waived the same and gave his
statement, it was with the assistance actually of a counsel." He also
declared inadmissible "Exhibit K, the handwritten admission made
by accused Felipe J. Ramos, given on February 8, 1986 x x for the
same reason stated in the exclusion of Exhibit 'A' since it does not
appear that the accused was assisted by counsel when he made
said admission."
The private prosecutors filed a motion for reconsideration. 9 It was
denied, by Order dated September 14, 1988. 10 In justification of
said Order, respondent Judge invoked this Court's rulings
in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People
v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219,
and People v. Decierdo, 149 SCRA 496, among others, to the effect
that "in custodial investigations the right to counsel may be waived
but the waiver shall not be valid unless made with the assistance
of counsel," and the explicit precept in the present Constitution that
the rights in custodial investigation "cannot be waived except in
writing and in the presence of counsel." He pointed out that the
investigation of Felipe Ramos at the PAL Baguio Station was one
"for the offense of allegedly misappropriating the proceeds of the
tickets issued to him' and therefore clearly fell "within the coverage
of the constitutional provisions;" and the fact that Ramos was not
detained at the time, or the investigation was administrative in
character could not operate to except the case "from the ambit of
the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now
assailed in the petition for certiorari and prohibition at bar, filed in
this Court by the private prosecutors in the name of the People of
the Philippines. By Resolution dated October 26, 1988, the Court
required Judge Ayson and Felipe Ramos to comment on the
petition, and directed issuance of a "TEMPORARY RESTRAINING
ORDER . . . ENJOINING the respondents from proceeding further
with the trial and/or hearing of Criminal Case No. 3488-R (People
... vs. Felipe Ramos), including the issuance of any order, decision
or judgment in the aforesaid case or on any matter in relation to
the same case, now pending before the Regional Trial Court of
Baguio City, Br. 6, First Judicial Region." The Court also
subsequently required the Solicitor General to comment on the
petition. The comments of Judge Ayson, Felipe Ramos, and the
Solicitor General have all been filed. The Solicitor General has made
common cause with the petitioner and prays "that the petition be
given due course and thereafter judgment be rendered setting
aside respondent Judge's Orders . . . and ordering him to admit
Exhibits 'A' and 'K' of the prosecution." The Solicitor General has
thereby removed whatever impropriety might have attended the
institution of the instant action in the name of the People of the
Philippines by lawyers de parte of the offended party in the criminal
action in question.
The Court deems that there has been full ventilation of the issue —
of whether or not it was grave abuse of discretion for respondent
Judge to have excluded the People's Exhibits A and K. It will now
proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973
Constitution, 11 to which respondent Judge has given a construction
that is disputed by the People. The section reads as follows:
SEC. 20. No person shall be compelled to be a witness against
himself Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and to
be informed of such right. No force, violence, threat, intimidation,
or any other means which vitiates the free will shall be used against
him. Any confession obtained in violation of this section shall be
inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets
of rights, dealt with in the section, namely:
1) the right against self-incrimination — i.e., the right of a person
not to be compelled to be a witness against himself — set out in
the first sentence, which is a verbatim reproduction of Section 18,
Article III of the 1935 Constitution, and is similar to that accorded
by the Fifth Amendment of the American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights
of every suspect "under investigation for the commission of an
offense."
Parenthetically, the 1987 Constitution indicates much more clearly
the individuality and disparateness of these rights. It has placed
the rights in separate sections. The right against self- incrimination,
"No person shall be compelled to be a witness against himself," is
now embodied in Section 17, Article III of the 1987 Constitution.
The lights of a person in custodial interrogation, which have been
made more explicit, are now contained in Section 12 of the same
Article III.13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20,
Article IV of the 1973 Constitution, is accorded to every person who
gives evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative
proceeding. 14 The right is NOT to "be compelled to be a witness
against himself"
696
The precept set out in that first sentence has a settled
meaning. 15 It prescribes an "option of refusal to answer
incriminating questions and not a prohibition of inquiry." 16 It
simply secures to a witness, whether he be a party or not, the right
to refue to answer any particular incriminatory question, i.e., one
the answer to which has a tendency to incriminate him for some
crime. However, the right can be claimed only when the specific
question, incriminatory in character, is actually put to the witness.
It cannot be claimed at any other time. It does not give a witness
the right to disregard a subpoena, to decline to appear before the
court at the time appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear as required,
take the stand, be sworn and answer questions. It is only when a
particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on
the strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution
does not impose on the judge, or other officer presiding over a trial,
hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination. It is a right that a
witness knows or should know, in accordance with the well known
axiom that every one is presumed to know the law, that ignorance
of the law excuses no one. Furthermore, in the very nature of
things, neither the judge nor the witness can be expected to know
in advance the character or effect of a question to be put to the
latter. 17
The right against self-incrimination is not self- executing or
automatically operational. It must be claimed. If not claimed by or
in behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by
a failure to claim it at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a
second right, or better said, group of rights. These rights apply to
persons "under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is
what makes these rights different from that embodied in the first
sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding,
civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation
for an offense was not in the 1935 Constitution. It is avowedly
derived from the decision of the U.S. Supreme Court in Miranda v.
Arizona, 19 a decision described as an "earthquake in the world of
law enforcement." 20
Section 20 states that whenever any person is "under investigation
for the commission of an offense"--
1) he shall have the right to remain silent and to counsel, and to
be informed of such right, 21
2) nor force, violence, threat, intimidation, or any other means
which vitiates the free will shall be used against him; 22 and
3) any confession obtained in violation of x x (these rights shall be
inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-custody
interrogation" being regarded as the commencement of an
adversary proceeding against the suspect. 24
He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires. Opportunity to
exercise those rights must be afforded to him throughout the
interrogation. After such warnings have been given, such
opportunity afforded him, the individual may knowingly and the 1973 Constitution, i.e., the right to refuse to answer a specific
intelligently waive these rights and agree to answer or make a incriminatory question at the time that it is put to him. 30
statement. But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence obtained
Additionally, the accused in a criminal case in court has other rights
as a result of interrogation can be used against him.
in the matter of giving testimony or refusing to do so. An accused
The objective is to prohibit "incommunicado interrogation of
"occupies a different tier of protection from an ordinary witness."
individuals in a police-dominated atmosphere, resulting in self-
Under the Rules of Court, in all criminal prosecutions the defendant
incriminating statement without full warnings of constitutional
is entitled among others-
rights." 25

1) to be exempt from being a witness against himself, 31 and 2) to

The rights above specified, to repeat, exist only in "custodial
interrogations," or "in-custody interrogation of accused
persons." 26 And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described by
this Court." 28
.. . After a person is arrested and his custodial investigation begins
a confrontation arises which at best may be tanned unequal. The
detainee is brought to an army camp or police headquarters and
there questioned and "cross-examined" not only by one but as
many investigators as may be necessary to break down his morale.
He finds himself in strange and unfamiliar surroundings, and every
person he meets he considers hostile to him. The investigators are
well-trained and seasoned in their work. They employ all the
methods and means that experience and study have taught them
to extract the truth, or what may pass for it, out of the detainee.
Most detainees are unlettered and are not aware of their
constitutional rights. And even if they were, the intimidating and
coercive presence of the officers of the law in such an atmosphere
overwhelms them into silence. Section 20 of the Bill of Rights seeks
to remedy this imbalance.
Not every statement made to the police by a person involved in
some crime is within the scope of the constitutional protection. If
not made "under custodial interrogation," or "under investigation
for the commission of an offense," the statement is not protected.
Thus, in one case, 29 where a person went to a police precinct and
before any sort of investigation could be initiated, declared that he
was giving himself up for the killing of an old woman because she
was threatening to kill him by barang, or witchcraft, this Court ruled
that such a statement was admissible, compliance with the
constitutional procedure on custodial interrogation not being
exigible under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just
discussed, i.e., (1) that against self-incrimination and (2) those
during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under
preliminary investigation is not under custodial interrogation. His
interrogation by the police, if any there had been would already
have been ended at the time of the filing of the criminal case in
court (or the public prosecutors' office). Hence, with respect to a
defendant in a criminal case already pending in court (or the public
prosecutor's office), there is no occasion to speak of his right while
under "custodial interrogation" laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973
Constitution, for the obvious reason that he is no longer under
"custodial interrogation."
testify as witness in his own behalf; but if he offers himself as a
witness he may be cross-examined as any other witness; however,
his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from
being a witness against himself' signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other process or order of
the Court. He cannot be required to be a witness either for the
prosecution, or for a co-accused, or even for himself. 33 In other
words — unlike an ordinary witness (or a party in a civil action) who
may be compelled to testify by subpoena, having only the right to
refuse to answer a particular incriminatory question at the time it
is put to him-the defendant in a criminal action can refuse to testify
altogether. He can refuse to take the witness stand, be sworn,
answer any question. 34And, as the law categorically states, "his
neglect or refusal to be a witness shall not in any manner prejudice
or be used against him." 35
If he should wish to testify in his own behalf, however, he may do
so. This is his right. But if he does testify, then he "may be cross-
examined as any other witness." He may be cross-examined as to
any matters stated in his direct examination, or connected
therewith . 36 He may not on cross-examination refuse to answer
any question on the ground that the answer that he will give, or the
evidence he will produce, would have a tendency to incriminate him
for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal
action be asked a question which might incriminate him, not for the
crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that
specific question, on the strength of the right against self-
incrimination granted by the first sentence of Section 20, Article IV
of the 1973 Constitution (now Section 17 of the 1987 Constitution).
Thus, assuming that in a prosecution for murder, the accused
should testify in his behalf, he may not on cross-examination refuse
to answer any question on the ground that he might be implicated
in that crime of murder; but he may decline to answer any
particular question which might implicate him for a different and
distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and
subsequently charged with its commission in court, has the
following rights in the matter of his testifying or producing
evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public
prosecutor, for preliminary investigation), but after having been
taken into custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the police: the
continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation
or any other means which vitiates the free will; and to have
evidence obtained in violation of these rights rejected; and

But unquestionably, the accused in court (or undergoing 2) AFTER THE CASE IS FILED IN COURT — 37

preliminary investigation before the public prosecutor), in common

with all other persons, possesses the right against self-
a) to refuse to be a witness;
incrimination set out in the first sentence of Section 20 Article IV of

697
b) not to have any prejudice whatsoever result to him by such Of course the possibility cannot be discounted that in certain
refusal; instances the judge's expressed apprehensions may be realized,
c) to testify in his own behalf, subject to cross-examination by the that violence or intimidation, undue pressure or influence be
prosecution; brought to bear on an employee under investigation — or for that
d) WHILE TESTIFYING, to refuse to answer a specific question matter, on a person being interrogated by another whom he has
which tends to incriminate him for some crime other than that for supposedly offended. In such an event, any admission or
which he is then prosecuted. confession wrung from the person under interrogation would be
inadmissible in evidence, on proof of the vice or defect vitiating
consent, not because of a violation of Section 20, Article IV of the
It should by now be abundantly apparent that respondent Judge
1973 Constitution, but simply on the general, incontestable
has misapprehended the nature and import of the disparate rights
proposition that involuntary or coerced statements may not in
set forth in Section 20, Article IV of the 1973 Constitution. He has
justice be received against the makers thereof, and really should
taken them as applying to the same juridical situation, equating
not be accorded any evidentiary value at all.
one with the other. In so doing, he has grossly erred. To be sure,
His Honor sought to substantiate his thesis by arguments he took
to be cogent and logical. The thesis was however so far divorced WHEREFORE, the writ of certiorari is granted annulling and setting
from the actual and correct state of the constitutional and legal aside the Orders of the respondent Judge in Criminal Case No.
principles involved as to make application of said thesis to the case 3488-R, dated August 9, 1988 and September 14, 1988, and he is
before him tantamount to totally unfounded, whimsical or hereby ordered to admit in evidence Exhibits "A" and "K" of the
capricious exercise of power. His Orders were thus rendered with prosecution in said Criminal Case No. 3488-R, and thereafter
grave abuse of discretion. They should be as they are hereby, proceed with the trial and adjudgment thereof. The temporary
annulled and set aside. restraining order of October 26, 1988 having become functus
officio, is now declared of no further force and effect.
It is clear from the undisputed facts of this case that Felipe Ramos
was not in any sense under custodial interrogation, as the term
should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket
sales in which he appeared to have had a hand. The constitutional
rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play,
were of no relevance to the inquiry. It is also clear, too, that Ramos
had voluntarily answered questions posed to him on the first day of
the administrative investigation, February 9, 1986 and agreed that
the proceedings should be recorded, the record having thereafter
been marked during the trial of the criminal action subsequently
filed against him as Exhibit A, just as it is obvious that the note
(later marked as Exhibit K) that he sent to his superiors on February
8,1986, the day before the investigation, offering to compromise
his liability in the alleged irregularities, was a free and even
spontaneous act on his part. They may not be excluded on the
ground that the so-called "Miranda rights" had not been accorded
to Ramos.

His Honor adverts to what he perceives to be the "greater danger

x x (of) the violation of the right of any person against self-
incrimination when the investigation is conducted by the
complaining parties, complaining companies, or complaining
employers because being interested parties, unlike the police
agencies who have no propriety or pecuniary interest to protect,
they may in their over-eagerness or zealousness bear heavily on
their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue
ascendancy and undue influence." It suffices to draw attention to
the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer
until and unless the employee has been accorded due process, by
which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to
explain his side. The requirement entails the making of statements,
oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the
assistance of counsel, or his colleagues and friends. The employee
may, of course, refuse to submit any statement at the
investigation, that is his privilege. But if he should opt to do so, in
his defense to the accusation against him, it would be absurd to
reject his statements, whether at the administrative investigation,
or at a subsequent criminal action brought against him, because he
had not been accorded, prior to his making and presenting them,
his "Miranda rights" (to silence and to counsel and to be informed
thereof, etc.) which, to repeat, are relevant only in custodial
investigations. Indeed, it is self-evident that the employee's
statements, whether called "position paper," "answer," etc., are
submitted by him precisely so that they may be admitted and duly
considered by the investigating officer or committee, in negation or
mitigation of his liability.

698
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE
PHILIPPINES and THE WARDEN OF THE CITY JAIL OF
MANILA, respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his original and
supplementary petitions invoking jurisdiction of this Court is that
he is entitled, on habeas corpus, to be freed from imprisonment
upon the ground that in the trial which resulted in his conviction1 he
was denied his constitutional right not to be compelled to testify
against himself. There is his prayer, too, that, should he fail in this,
he be granted the alternative remedies of certiorari to strike down
the two resolutions of the Court of Appeals dismissing his appeal
for failure to file brief, and of mandamus to direct the said court to
forward his appeal to this Court for the reason that he was raising
purely questions of law.
The indictment in the court below — the third amended information
— upon which the judgment of conviction herein challenged was
rendered, was for qualified theft of a motor vehicle, one (1)
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648
Pasay City '62 together with its accessories worth P22,200.00.
Accused were the following: Petitioner herein, Roger Chavez,
Ricardo Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias"Ging" Pascual, Pedro Rebullo alias "Pita", Luis
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses,
Peter Doe, Charlie Doe and Paul Doe.2
Averred in the aforesaid information was that on or about the 14th
day of November, 1962, in Quezon City, the accused conspired,
with intent of gain, abuse of confidence and without the consent of
the owner thereof, Dy Sun Hiok y Lim, in asporting the motor
vehicle above-described.
Upon arraignment, all the accused, except the three Does who have
not been identified nor apprehended, pleaded not
guilty.1äwphï1.ñët
On July 23, 1963, trial commenced before the judge presiding
Branch IX of the Court of First Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which for the great
bearing it has on this case, is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused].
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused Roger
Chavez, with this move of the Fiscal in presenting him as his
witness. I object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my client. It is really
surprising that at this stage, without my being notified by the
Fiscal, my client is being presented as witness for the
prosecution. I want to say in passing that it is only at this very
moment that I come to know about this strategy of the
prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the accused
Roger Chavez by making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
699
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I
object.
COURT:
The Court will give counsel for Roger Chavez fifteen minutes
within which to confer and explain to his client about the giving
of his testimony.
xxx xxx xxx
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in order
to enable me to confer with my client.
I conferred with my client and he assured me that he will not
testify for the prosecution this morning after I have explained
to him the consequences of what will transpire.
COURT:
What he will testify to does not necessarily incriminate him,
counsel.
And there is the right of the prosecution to ask anybody to act
as witness on the witness-stand including the accused.
If there should be any question that is incriminating then that
is the time for counsel to interpose his objection and the court
will sustain him if and when the court feels that the answer of
this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the
witness to answer questions which would incriminate him.
But surely, counsel could not object to have the accused called
on the witnessstand.
ATTY. CARBON:
I submit.
xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify
for the prosecution is something so sudden that has come to
the knowledge of this counsel.
This representation has been apprised of the witnesses
embraced in the information.
For which reason I pray this court that I be given at least some
days to meet whatever testimony this witness will bring about.
I therefore move for postponement of today's hearing.
COURT:
The court will give counsel time within which to prepare his
cross-examination of this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the
prosecution in this criminal case are those only listed in the
information.
I did not know until this morning that one of the accused will
testify as witness for the prosecution.
COURT:
That's the reason why the court will go along with counsels for
the accused and will give them time within which to prepare for
their cross-examination of this witness.
The court will not defer the taking of the direct examination of
the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant,
presently detained at the Manila Police Department
headquarters, after being duly sworn according to law, declared
as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case
No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12,
it states:
'The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.'
COURT:
 That is premature, counsel. Neither the court nor counsels for
the accused know what the prosecution eventsto establish by
calling this witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct examination"
of Roger Chavez by "Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the
prosecution as found by the court below may be briefly narrated as
follows:
A few days before November 12, 1962, Roger Chavez saw Johnson
Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang
(movie actor Romeo Vasquez) in mind, whom he knew was in the
market for such a car, Chavez asked Lee whether his car was for
sale. Lee answered affirmatively and left his address with Chavez.
Then, on November 12, Chavez met Sumilang at a barbershop
informed him about the Thunderbird. But Sumilang said that he had
changed his mind about buying a new car. Instead, he told Chavez
that he wanted to mortgage his Buick car for P10,000.00 to cover
an indebtedness in Pasay City. Upon the suggestion of Chavez, they
went to see Luis Asistio, who he knew was lending money on car
mortgages and who, on one occasion, already lent Romeo Vasquez
P3,000.00 on the same Buick car. Asistio however told the two that
he had a better idea on how to raise the money. His plan was to
capitalize on Romeo Vasquez' reputation as a wealthy movie star,
introduce him as a buyer to someone who was selling a car and,
after the deed of sale is signed, by trickery to run away with the
car. Asistio would then register it, sell it to a third person for a
profit. Chavez known to be a car agent was included in the plan.
He furnished the name of Johnson Lee who was selling his
Thunderbird. 1äwphï1.ñët
In the morning of November 14, Chavez telephoned Johnson Lee
and arranged for an appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his Thunderbird on Highway 54.
Sumilang was introduced as the interested buyer. Sumilang's driver
inspected the car, took the wheel for a while. After Sumilang and
Lee agreed on the purchase price (P21.000.00), they went to
Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the
car was registered. Thereafter, they went to see a lawyer notary
public in Quezon City, known to Chavez for the drafting of the deed
of sale. After the deed of sale was drawn up, it was signed by
Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's
driver and Johnson Lee the witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City,
all of them then drove in the Thunderbird car to that place. The
deed of sale and other papers remained in the pockets of Johnson
Lee.
At Eugene's, a man approached Sumilang with a note which stated
that the money was ready at the Dalisay Theater. Sumilang then
wrote on the same note that the money should be brought to the
restaurant. At the same time he requested Lee to exhibit the deed
of sale of the car to the note bearer.4
Then, the two Chinese were left alone in the restaurant. For
Sumilang, who had left the table to pose for pictures with some
fans and come back, again left never to return. So did Chavez, who
disappeared after he left on the pretext of buying cigarettes. The
two Chinese could not locate Sumilang and Chavez. They went out
to the place where the Thunderbird was parked, found that it was
gone. They then immediately reported its loss to the police. Much
later, the NBI recovered the already repainted car and impounded
it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio
converged that same day at Barrio Fiesta, a restaurant at Highway
54 near the Balintawak monument in Caloocan. There, Asistio
700
handed to Sumilang P1,000.00 cash and a golf set worth P800.00
as the latter's share in the transaction. On the 14th of November,
the registration of the car was transferred in the name of Sumilang
in Cavite City, and three days later, in the name of Asistio in
Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated
in part by Asistio, may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez
at a gas station. The latter informed him that there was a
Thunderbird from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that it could be held for
him with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the
house of a certain Nena Hernaez de los Reyes who wrote out a
check for P5,000.00 as a loan to Sumilang. That check was
exhibited in court. Sumilang and Chavez then went to Pasay City to
see a certain Mario Baltazar, an agent of the Pasay City Mayor, and
Narsing Cailles, Chief of the Fire Department. Sumilang asked the
two for a P10,000-loan backed up by the P5,000.00-check aforesaid
on condition that it should not be cashed immediately as there were
not enough funds therefor. Baltazar and Cailles agreed to give the
money the nextday as long as the check would be left with them
and Sumilang would sign a promissory note for P10,000.00.
Baltazar later informed Sumilang that Chavez picked up the money
the next day. Four or five days afterwards, Chavez returned
P4,000.00 to Sumilang because P6,000.00 was enough for the
deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez
asked Sumilang for another P3,000.00. Sumilang sent Chavez to
Baltazar and Cailles, with a note requesting that they accommodate
him once more. He also sent a check, again without funds. Baltazar
gave the money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the
news that the car was ready if Sumilang was ready with the rest of
the money. So Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He immediately gave
P6,000.00 to Chavez, intending to pay out the balance upon the
car's delivery. It was then that Chavez told Sumilang that the car
was already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and
Johnson Lee was P21,000.00, plus P500.00 agents commission at
the expense of the buyer. Sumilang told Lee that he already paid
part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang
accommodated. There, Sumilang, also saw a friend, "Ging" Pascual.
In the course of their conversation at the bar, Sumilang mentioned
the proposed transaction thru Chavez. Pascual warned that Chavez
was a "smart" agent and advised that Sumilang should have a
receipt for his money. A certain Bimbo, a friend of Pascual, offered
to make out a receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with
some of his fans, Bimbo showed him the receipt already signed by
Chavez. Sumilang requested Pascual and Bimbo to sign the receipt
as witnesses. And they did. This receipt was offered as an exhibit
by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned
over to him the deed of sale, the registration papers and the keys
to the car. After shaking hands with Lee, Sumilang drove away in
the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio
Fiesta on his way to a film shooting at Bulacan. He saw Asistio with
many companions. Asistio liked his Thunderbird parked outside.
Asistio offered to buy it from him for P22,500.00. As the offer was
good, and knowing Asistio's and his friends' reputation for always
getting what they wanted, Sumilang consented to the sale. Asistio
tendered a down payment of P1,000.00; the balance he promised
to pay the next day after negotiating with some financing company.
Before said balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment,
strengthened by Baltazar's and Cailles' corroborations, that he paid
good money for the car. Sumilang was thus cleared. So was Asistio
whom the trial court believed to be a mere buyer of the car. And
so, the prosecution's theory of conspiracy was discounted.
As to the other accused, the court found no case against Pedro
Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused
"Ging" Pascual was also acquitted for in the first place he was not
identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger
Chavez does not offer any defense. As a matter of fact, his
testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court branded him "a self-
confessed culprit".6 The court further continued:
It is not improbable that true to the saying that misery loves
company Roger Chavez tried to drag his co-accused down with
him by coloring his story with fabrications which he expected
would easily stick together what with the newspaper notoriety
of one and the sensationalism caused by the other. But Roger
Chavez' accusations of Asistio's participation is utterly
uncorroborated. And coming, as it does, from a man who has
had at least two convictions for acts not very different from
those charged in this information, the Court would be too
gullible if it were to give full credence to his words even if they
concerned a man no less notorious than himself.7
The trial court then came to the conclusion that if Johnson Lee was
not paid for his car, he had no one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused
except Roger Chavez who was found guilty beyond reasonable
doubt of the crime of qualified theft. He was accordingly sentenced
to suffer an indeterminate penalty of not less than ten (10) years,
one (1) day, as minimum and not more than fourteen (14) years,
eight (8) months and one (1) day as maximum, to indemnify Dy
Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency, to undergo the
accessory penalties prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was ordered to be
turned over to Ricardo Sumilang, who was directed to return to
Asistio the sum of P1,000.00 unless the latter chose to pay
P21,500.00, representing the balance of the contract price for the
car.
The foregoing sentence was promulgated on March 8, 1965. Roger
Chavez appealed to the Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad
Marquez, counsel for Roger Chavez, to show cause within ten days
from notice why Chavez' appeal should not be considered
abandoned and dismissed. Reason for this is that said lawyer
received notice to file brief on December 28, 1967 and the period
for the filing thereof lapsed on January 27, 1968 without any brief
having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written
explanation. She also stated that if she were allowed to file
appellant's brief she would go along with the factual findings of the
court below but will show however that its conclusion is erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing
explanation, resolved to dismiss the appeal. A move to reconsider
701
was unavailing. For, on June 21, 1968, the Court of Appeals,
through a per curiam resolution, disposed to maintain its May 14
resolution dismissing the appeal, directed the City Warden of Manila
where Chavez is confined by virtue of the warrant of arrest issued
by the Court of Appeals, to turn him over to Muntinlupa Bilibid
Prisons pending execution of the judgment below, and ordered
remand of the case to the Quezon City court for execution of
judgment.
It was at this stage that the present proceedings were commenced
in this Court.
Upon the petitions, the return, and the reply, and after hearing on
oral arguments, we now come to grips with the main problem
presented.
We concentrate attention on that phase of the issues which relates
petitioner's assertion that he was compelled to testify against
himself. For indeed if this one question is resolved in the
affirmative, we need not reach the others; in which case, these
should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with
proof, of violation of his right — constitutionally entrenched —
against self-incrimination. He asks that the hand of this Court be
made to bear down upon his conviction; that he be relieved of the
effects thereof. He asks us to consider the constitutional injunction
that "No person shall be compelled to be a witness against
himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where,
in all criminal prosecutions, the defendant shall be entitled: "(e) To
be exempt from being a witness against himself." .
It has been said that forcing a man to be a witness against himself
is at war with "the fundamentals of a republican
government"; 10 that [i]t may suit the purposes of despotic power
but it can not abide the pure atmosphere of political liberty and
personal freedom."11 Mr. Justice Abad Santos recounts the
historical background of this constitutional inhibition, thus: " "The
maxim Nemo tenetur seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the
continental system, and, until the expulsion of the Stuarts from the
British throne in 1688, and the erection of additional barriers for
the protection of the people against the exercise of arbitrary power,
was not uncommon even in England. While the admissions of
confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence, if an
accused person be asked to explain his apparent connection with a
crime under investigation, the ease with which the questions put to
him may assume an inquisitorial character, the temptation to press,
the witness unduly, to browbeat him if he be timid or reluctant, to
push him into a corner, and to entrap him into fatal contradictions,
which is so painfully evident in many of the earlier state trials,
notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand
for its total abolition. The change in the English criminal procedure
in that particular seems to be founded upon no statute and no
judicial opinion, but upon a general and silent acquiescence of the
courts in a popular demand. But, however adopted, it has become
firmly embedded in English, as well as in American jurisprudence.
So deeply did the iniquities of the ancient system impress
themselves upon the minds of the American colonists that the
states, with one accord, made a denial of the right to question an
accused person a part of their fundamental law, so that a maxim
which in England was a mere rule of evidence, became clothed in
this country with the impregnability of a constitutional enactment."
(Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819,
821)." 12 Mr. Justice Malcolm, in expressive language, tells us that
this maxim was recognized in England in the early days "in a revolt
against the thumbscrew and the rack." 13 An old Philippine case
[1904] 14 speaks of this constitutional injunction as "older than the
Government of the United States"; as having "its origin in a protest
against the inquisitorial methods of interrogating the accused
person"; and as having been adopted in the Philippines "to wipe out
such practices as formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations, and to give
testimony regarding the offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the
enforcement of which is left to the discretion of the court"; it is
mandatory; it secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice. Just a few
months ago, the Supreme Court of the United States (January 29,
1968), speaking thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield the guilty and
imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee
may not be treated with unconcern. To repeat, it is mandatory; it
secures to every defendant a valuable and substantive right.
Tañada and Fernando (Constitution of the Philippines, 4th ed., vol.
I, pp. 583-584) take note of U.S. vs. Navarro, supra, which
reaffirms the rule that the constitutional proscription was
established on broad grounds of public policy and humanity; of
policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would
be to extort a confession of truth by a kind of duress every species
and degree of which the law abhors. 17
Therefore, the court may not extract from a defendant's own lips
and against his will an admission of his guilt. Nor may a court as
much as resort to compulsory disclosure, directly or indirectly, of
facts usable against him as a confession of the crime or the
tendency of which is to prove the commission of a crime. Because,
it is his right to forego testimony, to remain silent, unless he
chooses to take the witness stand — with undiluted, unfettered
exercise of his own free, genuine will.
Compulsion as it is understood here does not necessarily connote
the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair his capacity
for rational judgment would in our opinion be sufficient. So is moral
coercion "tending to force testimony from the unwilling lips of the
defendant." 18
2. With the foregoing as guideposts, we now turn to the facts.
Petitioner is a defendant in a criminal case. He was called by the
prosecution as the first witness in that case to testify for the People
during the first day of trial thereof. Petitioner objected and invoked
the privilege of self-incrimination. This he broadened by the clear
cut statement that he will not testify. But petitioner's protestations
were met with the judge's emphatic statement that it "is the right
of the prosecution to ask anybody to act as witness on the witness
stand including the accused," and that defense counsel "could not
object to have the accused called on the witness stand." The
cumulative impact of all these is that accused-petitioner had to take
the stand. He was thus peremptorily asked to create evidence
against himself. The foregoing situation molds a solid case for
petitioner, backed by the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from
an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each
question requiring an incriminating answer is shot at him, 19 and
accused may altogether refuse to take the witness stand and refuse
to answer any and all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People would be to
incriminate him. 21 The rule positively intends to avoid and prohibit
the certainly inhuman procedure of compelling a person "to furnish
the missing evidence necessary for his conviction." 22 This rule may
apply even to a co-defendant in a joint trial.23
And the guide in the interpretation of the constitutional precept that
the accused shall not be compelled to furnish evidence against
himself "is not the probability of the evidence but it is the capability
702
of abuse." 24 Thus it is, that it was undoubtedly erroneous for the
trial judge to placate petitioner with these words:.
What he will testify to does not necessarily incriminate him,
counsel.
And there is the right of the prosecution to ask anybody to act
as witness on the witness-stand including the accused.
If there should be any question that is incriminating then that
is the time for counsel to interpose his objection and the court
will sustain him if and when the court feels that the answer of
this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the
witness to answer questions which would incriminate him.
But surely, counsel could not object to have the accused called
on the witness stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial,
Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p.
355, 25 While a defendant's knowledge of the facts remains
concealed within his bosom, he is safe; but draw it from thence,
and he is exposed" — to conviction.
The judge's words heretofore quoted — "But surely counsel could
not object to have the accused called on the witness stand" —
wielded authority. By those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist; they
foreclosed choice; the realities of human nature tell us that as he
took his oath to tell the truth, the whole truth and nothing but the
truth, no genuine consent underlay submission to take the witness
stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his
objections to be a witness for the People is at once apparent. The
record discloses that by leading questions Chavez, the accused,
was made to affirm his statement given to the NBI agents on July
17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement
detailed the plan and execution thereof by Sumilang (Vasquez),
Asistio and himself to deprive the Chinese of his Thunderbird car.
And he himself proceeded to narrate the same anew in open court.
He identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that
the case for the People was built primarily around the admissions
of Chavez himself. The trial court described Chavez as the "star
witness for the prosecution". Indeed, the damaging facts forged in
the decision were drawn directly from the lips of Chavez as a
prosecution witness and of course Ricardo Sumilang for the
defense. There are the unequivocal statements in the decision that
"even accused Chavez" identified "the very same Thunderbird that
Johnson Lee had offered for sale"; that Chavez "testimony as
witness for the prosecution establishes his guilt beyond reasonable
doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in saying that petitioner
was forced to testify to incriminate himself, in full breach of his
constitutional right to remain silent. It cannot be said now that he
has waived his right. He did not volunteer to take the stand and in
his own defense; he did not offer himself as a witness; on the
contrary, he claimed the right upon being called to testify. If
petitioner nevertheless answered the questions inspite of his fear
of being accused of perjury or being put under contempt, this
circumstance cannot be counted against him. His testimony is not
of his own choice. To him it was a case of compelled submission.
He was a cowed participant in proceedings before a judge who
possessed the power to put him under contempt had he chosen to
remain silent. Nor could he escape testifying. The court made it
abundantly clear that his testimony at least on direct examination
would be taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking deprived of his liberty, or by which the rightful custody of any
the stand became fruitless, no objections to questions propounded person is withheld from the person entitled thereto.
to him were made. Here involve is not a mere question of self-
incrimination. It is a defendant's constitutional immunity from
Just as we are about to write finis to our task, we are prompted to
being called to testify against himself. And the objection made at
restate that: "A void judgment is in legal effect no judgment. By it
the beginning is a continuing one. 1äwphï1.ñët
no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally
There is therefore no waiver of the privilege. "To be effective, a worthless. It neither binds nor bars any one. All acts performed
waiver must be certain and unequivocal, and intelligently, under it and all claims flowing out of it are void. The parties
understandably, and willingly made; such waiver following only attempting to enforce it may be responsible as trespassers. ... " 42
where liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on
6. Respondents' return 43 shows that petitioner is still serving under
vague and uncertain evidence." 28 The teaching in Johnson vs.
a final and valid judgment of conviction for another offense. We
Zerbst 29 is this: "It has been pointed out that "courts indulge every
should guard against the improvident issuance of an order
reasonable presumption against waiver" of fundamental
discharging a petitioner from confinement. The position we take
constitutional rights and that we "do not presume acquiescence in
here is that petitioner herein is entitled to liberty thru habeas
the loss of fundamental rights." A waiver is ordinarily an intentional
corpus only with respect to Criminal Case Q-5311 of the Court of
relinquishment or abandonment of a known right or
First Instance of Rizal, Quezon City Branch, under which he was
privilege." Renuntiatio non praesumitur.
prosecuted and convicted.

The foregoing guidelines, juxtaposed with the circumstances of the

Upon the view we take of this case, judgment is hereby rendered
case heretofore adverted to, make waiver a shaky defense. It
directing the respondent Warden of the City Jail of Manila or the
cannot stand. If, by his own admission, defendant proved his guilt,
Director of Prisons or any other officer or person in custody of
still, his original claim remains valid. For the privilege, we say again,
petitioner Roger Chavez by reason of the judgment of the Court of
is a rampart that gives protection - even to the guilty. 30
First Instance of Rizal, Quezon City Branch, in Criminal Case Q-
5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
5. The course which petitioner takes is correct. Habeas corpus is a Sumilang, et al., accused," to discharge said Roger Chavez from
high prerogative writ. 31 It is traditionally considered as an custody, unless he is held, kept in custody or detained for any
exceptional remedy to release a person whose liberty is illegally cause or reason other than the said judgment in said Criminal Case
restrained such as when the accused's constitutional rights are Q-5311 of the Court of First Instance of Rizal, Quezon City Branch,
disregarded. 32 Such defect results in the absence or loss of in which event the discharge herein directed shall be effected when
jurisdiction 33 and therefore invalidates the trial and the consequent such other cause or reason ceases to exist.
conviction of the accused whose fundamental right was
violated. 34 That void judgment of conviction may be challenged by
No costs. So ordered.
collateral attack, which precisely is the function of habeas
corpus. 35 This writ may issue even if another remedy which is less
effective may be availed of by the defendant. 36Thus, failure by the
accused to perfect his appeal before the Court of Appeals does not
preclude a recourse to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in Johnson vs.
Zerbst, 39 the writ of habeas corpus as an extraordinary remedy
must be liberally given effect 40 so as to protect well a person
whose liberty is at stake. The propriety of the writ was given the
nod in that case, involving a violation of another constitutional
right, in this wise:

Since the Sixth Amendment constitutionally entitles one

charged with crime to the assistance of Counsel, compliance
with this constitutional mandate is an essential jurisdictional
prerequisite to a Federal Court's authority. When this right is
properly waived, the assistance of Counsel is no longer a
necessary element of the Court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not
represented by Counsel and has not competently and
intelligently waived his constitutional right, the Sixth
Amendment stands as a jurisdictional bar to a valid conviction
and sentence depriving him of his liberty. A court's jurisdiction
at the beginning of trial may be lost "in the course of the
proceedings" due to failure to complete the court — as the Sixth
Amendment requires — by providing Counsel for an accused
who is unable to obtain Counsel, who has not intelligently
waived this constitutional guaranty, and whose life or liberty is
at stake. If this requirement of the Sixth Amendment is not
complied with, the court no longer has jurisdiction to
proceed. The judgment of conviction pronounced by a court
without jurisdiction is void, and one imprisoned thereundermay
obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused
Roger Chavez whose case presents a clear picture of disregard of a
constitutional right is absolutely proper. Section 1 of Rule 102
extends the writ, unless otherwise expressly provided by law, "to
all cases of illegal confinement or detention by which any person is

703
G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore
her to her liberty.
The facts are not dispute. In a criminal case pending before the
Court of First Instance of the city of Manila, Emeteria Villaflor and
Florentino Souingco are charged with the crime of adultery. On this
case coming on for trial before the Hon. Pedro Concepcion, Judge
of First Instance, upon the petitioner of the assistant fiscal for the
city of Manila, the court ordered the defendant Emeteria Villaflor,
nor become the petitioner herein, to submit her body to the
examination of one or two competent doctors to determine if she
was pregnant or not. The accused refused to obey the order on the
ground that such examination of her person was a violation of the
constitutional provision relating to self-incrimination. Thereupon
she was found in contempt of court and was ordered to be
committed to Bilibid Prison until she should permit the medical
examination required by the court.
The sole legal issue from the admitted facts is whether the
compelling of a woman to permit her body to be examined by
physicians to determine if she is pregnant, violates that portion of
the Philippine Bill of Rights and that portion of our Code of Criminal
Procedure which find their origin in the Constitution of the United
States and practically all state constitutions and in the common law
rules of evidence, providing that no person shall be compelled in
any criminal case to be a witness against himself. (President's
Instructions to the Philippine Commission; Act of Congress of July
1, 1902, section 5, paragraph 3; Act of Congress of August 29,
1916, section 3; paragraph 3; Code of Criminal Procedure, section
15 [4]; United States Constitution, fifth amendment.) Counsel for
petitioner argues that such bodily exhibition is an infringement of
the constitutional provision; the representative of the city fiscal
contends that it is not an infringement of the constitutional
provision. The trial judge in the instant case has held with the fiscal;
while it is brought to our notice that a judge of the same court has
held on an identical question as contended for by the attorney for
the accused and petitioner.
The authorities are abundant but conflicting. What may be termed
the conservative courts emphasize greatly the humanitarianism of
the constitutional provisions and are pleased to extend the privilege
in order that its mantle may cover any fact by which the accused is
compelled to make evidence against himself. (Compare State vs.
Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14
Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash.,
506; State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State
[1903], 117 Wis., 338.) A case concordant with this view and
almost directly in point is People vs. McCoy ([1873], 45 How. Pr.,
216). A woman was charged with the crime of infanticide. The
corner directed two physicians to go to the jail and examine her
private parts to determine whether she had recently been delivered
of a child. She objected to the examination, but being threatened
with force, yielded, and the examination was had. The evidence of
these physicians was offered at the trial and ruled out. The court
said that the proceeding was in violation of the spirit and meaning
of the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself."
Continuing, the court said: "They might as well have sworn the
prisoner, and compelled her, by threats, to testify that she had
been pregnant, and had been delivered of a child, as to have
compelled her, by threats, to allow them to look into her person,
with the aid of a speculum, to ascertain whether she had been
pregnant and been delivered of a child. . . . Has this court the right
to compel the prisoner now to submit to an examination they are
of the opinion she is not a virgin, and has had a child? It is not
possible that this court has that right; and it is too clear to admit
704
of argument that evidence thus obtained would be inadmissible
against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot
refrain from saying that, greatly impressed with the weight of these
decisions, especially the one written by Mr. Justice McClain, in
State vs. Height, supra, the instant case was reported by the writer
with the tentative recommendation that the court should lay down
the general rule that a defendant can be compelled to disclose only
those parts of the body which are not usually covered. Buth having
disabused our minds of a too sensitive appreciation of the rights of
accused persons, and having been able, as we think, to penetrate
through the maze of law reports to the policy which lies behind the
constitutional guaranty and the common law principle, we have
come finally to take our stand with what we believe to be the reason
of the case.
In contradistinction to the cases above-mentioned are others which
seem to us more progressive in nature. Among these can be
prominently mentioned decisions of the United States Supreme
Court, and the Supreme Court of these Islands. Thus, the always
forward looking jurist, Mr. Justice Holmes, in the late case of
Holt vs. United States ([1910], 218 U. S., 245), in resolving an
objection based upon what he termed "an extravagant extension of
the Fifth Amendment," said: "The prohibition of compelling a man
in a criminal court to be a witness against himself is a prohibition
of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence
when it may be material." (See also, of same general tenor,
decision of Mr. Justice Day in Adams vs. New York [1903], 192 U.
S., 585.) The Supreme Court of the Philippine Islands, in two
decisions, has seemed to limit the protection to a prohibition
against compulsory testimonial self-incrimination. The
constitutional limitation was said to be "simply a prohibition against
legal process to extract from the defendant's own lips, against his
will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil.,
145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the
derivatory principle announced in 16 Corpus Juris, 567, 568, citing
the United States Supreme Court and the Supreme Court of the
Philippine Islands as authority.)
Although we have stated s proposition previously announced by this
court and by the highest tribunal in the United States, we cannot
unconcernedly leave the subject without further consideration.
Even in the opinion Mr. Justice Holmes, to which we have alluded,
there was inserted the careful proviso that "we need not consider
how far a court would go in compelling a man to exhibit himself."
Other courts have likewise avoided any attempt to determine the
exact location of the dividing line between what is proper and what
is improper in this very broad constitutional field. But here before
us is presented what would seem to be the most extreme case
which could be imagined. While the United States Supreme Court
could nonchalantly decree that testimony that an accused person
put on a blouse and it fitted him is not a violation of the
constitutional provision, while the Supreme Court of Nuevada could
go so far as to require the defendant to roll up his sleeve in order
to disclose tattoo marks, and while the Supreme Court of the
Philippine Islands could permit substances taken from the person
of an accused to be offered in evidence, none of these even
approach in apparent harshness an order to make a woman,
possibly innocent, to disclose her body in all of its sanctity to the
gaze of strangers. We can only consistently consent to the retention
of a principle which would permit of such a result by adhering
steadfastly to the proposition that the purpose of the constitutional
provision was and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget
them entirely, and here in the Philippines, being in the agrreable
state of breaking new ground, would rather desire our decision to
rest on a strong foundation of reason and justice than on a weak
one blind adherence to tradition and precedent. Moreover, we
believe that an unbiased consideration of the history of the
constitutional provisions will disclose that our conclusion is in exact
accord with the causes which led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare,
was recognized in England in early days, but not in the other legal
systems of the world, in a revolt against the thumbscrew and the
rack. A legal shield was raised against odious inquisitorial methods
of interrogating an accused person by which to extort unwilling
confessions with the ever present temptation to commit the crime
of perjury. The kernel of the privilege as disclosed by the textwriters
was testimonial compulsion. As forcing a man to be a witness
against himself was deemed contrary to the fundamentals of
republican government, the principle was taken into the American
Constitutions, and from the United States was brought to the
Philippine Islands, in exactly as wide — but no wider — a scope as
it existed in old English days. The provision should here be
approached in no blindly worshipful spirit, but with a judicious and
a judicial appreciation of both its benefits and its abuses. (Read the
scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71,
and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on
Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil.,
143.)
of the accused is permissible. The proviso is that torture of force
shall be avoided. Whether facts fall within or without the rule with
its corollary and proviso must, of course, be decided as cases arise.
It is a reasonable presumption that in an examination by reputable
and disinterested physicians due care will be taken not to use
violence and not to embarass the patient any more than is
absolutely necessary. Indeed, no objection to the physical
examination being made by the family doctor of the accused or by
doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the
assistant fiscal for an examination of the person of the defendant
by physicians was phrased in absolute terms, it should,
nevertheless, be understood as subject to the limitations herein
mentioned, and therefore legal. The writ of habeas corpus prayed
for is hereby denied. The costs shall be taxed against the petitioner.
So ordered.

Perhaps the best way to test the correctness of our position is to Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.
go back once more to elements and ponder on what is the prime
purpose of a criminal trial. As we view it, the object of having
criminal laws is to purgue the community of persons who violate
the laws to the great prejudice of their fellow men. Criminal
procedure, the rules of evidence, and constitutional provisions, are
then provided, not to protect the guilty but to protect the innocent.
No rule is intemended to be so rigid as to embarrass the
administration of justice in its endeavor to ascertain the truth. No
accused person should be afraid of the use of any method which
will tend to establish the truth. For instance, under the facts before
us, to use torture to make the defendant admit her guilt might only
result in including her to tell a falsehood. But no evidence of
physical facts can for any substantial reason be held to be
detrimental to the accused except in so far as the truth is to be
avoided in order to acquit a guilty person.

Obviously a stirring plea can be made showing that under the due
process of law cause of the Constitution every person has a natural
and inherent right to the possession and control of his own body. It
is extremely abhorrent to one's sense of decency and propriety to
have the decide that such inviolability of the person, particularly of
a woman, can be invaded by exposure to another's gaze. As Mr.
Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141
U. S., 250) said, "To compel any one, and especially a woman, to
lay bare the body, or to submit to the touch of a stranger, without
lawful authority, is an indignity, an assault, and a trespass."
Conceded, and yet, as well suggested by the same court, even
superior to the complete immunity of a person to be let alone is the
inherent which the public has in the orderly administration of
justice. Unfortunately, all too frequently the modesty of witnesses
is shocked by forcing them to answer, without any mental evasion,
questions which are put to them; and such a tendency to degrade
the witness in public estimation does not exempt him from the duty
of disclosure. Between a sacrifice of the ascertainment of truth to
personal considerations, between a disregard of the public welfare
for refined notions of delicacy, law and justice cannot hesitate.

The protection of accused persons has been carried to such an

unwarranted extent that criminal trials have sometimes seemed to
be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public
as fascinated spectators. Against such a loose extension of
constitutional guaranties we are here prepared to voice our
protest.

Fully conscious that we are resolving a most extreme case in a

sense, which on first impression is a shock to one's sensibilities, we
must nevertheless enforce the constitutional provision in this
jurisdiction in accord with the policy and reason thereof, undeterred
by merely sentimental influences. Once again we lay down the rule
that the constitutional guaranty, that no person shall be compelled
in any criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination. The
corollary to the proposition is that, an ocular inspection of the body

705
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and
FRANCISCO JOSE, Provincial Fiscal of Isabela,respondents.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner
complains that the respondent judge ordered him to appear before
the provincial fiscal to take dictation in his own handwriting from
the latter.
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether or
not it is he who wrote certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in
these proceedings; but the respondents contend that the petitioner
is not entitled to the remedy applied for, inasmuch as the order
prayed for by the provincial fiscal and later granted by the court
below, and again which the instant action was brought, is based on
the provisions of section 1687 of the Administrative Code and on
the doctrine laid down in the cases of People vs. Badilla (48 Phil.,
718); United States vs. Tan Teng (23 Phil., 145); United States vs.
Ong Siu Hong (36 Phil., 735), cited by counsel for the respondents,
and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the
judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code,
and the proper judge, upon motion of the fiscal, may compel
witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice
to the constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded,
seeks refuge in the constitutional provision contained in the Jones
Law and incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining
whether the constitutional provision invoked by the petitioner
prohibits compulsion to execute what is enjoined upon him by the
order against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law
which (in Spanish) reads: "Ni se le obligara a declarar en contra
suya en ningun proceso criminal" and has been incorporated in our
Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 )
and section 56.
As to the extent of the privilege, it should be noted first of all, that
the English text of the Jones Law, which is the original one, reads
as follows: "Nor shall be compelled in any criminal case to be a
witness against himself."
This text is not limited to declaracion but says "to be a witness."
Moreover, as we are concerned with a principle contained both in
the Federal constitution and in the constitutions of several states of
the United States, but expressed differently, we should take it that
these various phrasings have a common conception.
In the interpretation of the principle, nothing turns upon the
variations of wording in the constitutional clauses; this much is
conceded (ante, par. 2252). It is therefore immaterial that the
witness is protected by one constitution from 'testifying', or by
another from 'furnishing evidence', or by another from 'giving
evidence,' or by still another from 'being a witness.' These various
phrasings have a common conception, in respect to the form of the
protected disclosure. What is that conception? (4 Wigmore on
Evidence, p. 863, 1923 ed.)
706
As to its scope, this privilege is not limited precisely to testimony,
but extends to all giving or furnishing of evidence.
The rights intended to be protected by the constitutional provision
that no man accused of crime shall be compelled to be a witness
against himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is strong and the
evidence obscure, that is the duty of courts liberally to construe the
prohibition in favor of personal rights, and to refuse to permit any
steps tending toward their invasion. Hence, there is the well-
established doctrine that the constitutional inhibition is directed not
merely to giving of oral testimony, but embraces as well the
furnishing of evidence by other means than by word of mouth, the
divulging, in short, of any fact which the accused has a right to hold
secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis
ours.)
The question, then, is reduced to a determination of whether the
writing from the fiscal's dictation by the petitioner for the purpose
of comparing the latter's handwriting and determining whether he
wrote certain documents supposed to be falsified, constitutes
evidence against himself within the scope and meaning of the
constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his
own behalf, denies that a certain writing or signature is in his own
hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting
with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific
Reporter, 1013) inasmuch as the defendant, in offering himself as
witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378),
where the judge asked the defendant to write his name during the
hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now
before us. We are not concerned here with the defendant, for it
does not appear that any information was filed against the
petitioner for the supposed falsification, and still less as it a
question of the defendant on trial testifying and under cross-
examination. This is only an investigation prior to the information
and with a view to filing it. And let it further be noted that in the
case of Sprouse vs. Com., the defendant performed the act
voluntarily.
We have also come upon a case wherein the handwriting or the
form of writing of the defendant was obtained before the criminal
action was instituted against him. We refer to the case of People
vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in
the aforesaid case of Sprouse vs. Com., the defendant voluntarily
offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives
prominence to the defendant's right to decline to write, and to the
fact that he voluntarily wrote. The following appears in the body of
said decision referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He
preferred to accede to the latter's request, and we can discover no
ground upon which the writings thus produced can be excluded
from the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs.
Robert (41 Mich., 709; 3 N. W., 199), that the defendant could not
be compelled to write his name, the doctrine being stated as
follows:
The defendant being sworn in his own behalf denied the
endorsement.
He was then cross-examined the question in regard to his having
signed papers not in the case, and was asked in particular whether
he would not produce signatures made prior to the note in suit, and
whether he would not write his name there in the court. The judge
excluded all these inquiries, on objection, and it is of these rulings
that complaint is made. The object of the questions was to bring
into the case extrinsic signatures, for the purpose of comparison by
the jury, and we think that the judge was correct in ruling against
it.
It is true that the eminent Professor Wigmore, in his work cited
(volume 4, page 878), says:
Measuring or photographing the party is not within the privilege.
Nor it is the removal or replacement of his garments or shoes. Nor
is the requirement that the party move his body to enable the
foregoing things to be done. Requiring him to make specimens of
handwriting is no more than requiring him to move his body . . ."
but he cites no case in support of his last assertion on specimens
of handwriting. We note that in the same paragraph 2265, where
said authors treats of "Bodily Exhibition." and under preposition "1.
A great variety of concrete illustrations have been ruled upon," he
cites many cases, among them that of People vs. Molineux (61 N.
E., 286) which, as we have seen, has no application to the case at
bar because there the defendant voluntary gave specimens of his
handwriting, while here the petitioner refuses to do so and has even
instituted these prohibition proceedings that he may not be
compelled to do so.
Furthermore, in the case before us, writing is something more than
moving the body, or the hands, or the fingers; writing is not a
purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that
the petitioner herein is to furnish a means to determine whether or
not he is the falsifier, as the petition of the respondent fiscal clearly
states. Except that it is more serious, we believe the present case
is similar to that of producing documents or chattels in one's
possession. And as to such production of documents or chattels.
which to our mind is not so serious as the case now before us, the
same eminent Professor Wigmore, in his work cited, says (volume
4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. —
1. It follows that the production of documents or chattels by a
person (whether ordinary witness or party-witness) in response to
a subpoena, or to a motion to order production, or to other form
of process treating him as a witness ( i.e. as a person appearing
before a tribunal to furnish testimony on his moral responsibility for
truthtelling), may be refused under the protection of the privilege;
and this is universally conceded. (And he cites the case of People
vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there
is a similarity between one who is compelled to produce a
document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish
evidence against himself.
And we say that the present case is more serious than that of
compelling the production of documents or chattels, because here
the witness is compelled to write and create, by means of the act
of writing, evidence which does not exist, and which may identify
him as the falsifier. And for this reason the same eminent author,
Professor Wigmore, explaining the matter of the production of
documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and
though the documents or chattels be already in existence and not
desired to be first written and created by testimonial act or
utterance of the person in response to the process, still no line can
707
be drawn short of any process which treats him as a witness;
because in virtue it would be at any time liable to make oath to the
identity or authenticity or origin of the articles produced. (Ibid., pp.
864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to
obtain a specimen of the petitioner's handwriting is not granted,
the crime would go unpunished. Considering the circumstance that
the petitioner is a municipal treasurer, according to Exhibit A, it
should not be a difficult matter for the fiscal to obtained genuine
specimens of his handwriting. But even supposing it is impossible
to obtain specimen or specimens without resorting to the means
complained herein, that is no reason for trampling upon a personal
right guaranteed by the constitution. It might be true that in some
cases criminals may succeed in evading the hand of justice, but
such cases are accidental and do not constitute the raison d' etre of
the privilege. This constitutional privilege exists for the protection
of innocent persons.
With respect to the judgments rendered by this court and cited on
behalf of the respondents, it should be remembered that in the case
of People vs. Badilla (48 Phil., 718), it does not appear that the
defendants and other witnesses were questioned by the fiscal
against their will, and if they did not refuse to answer, they must
be understood to have waived their constitutional privilege, as they
could certainly do.
The privilege not to give self-incriminating evidence, while absolute
when claimed, maybe waived by any one entitled to invoke it. (28
R. C. L., paragraph 29, page 442, and cases noted.)
The same holds good in the case of United States vs. Tan Teng (23
Phil., 145), were the defendant did not opposethe extraction from
his body of the substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly
stated that the court preferred to rest its decision on the reason of
the case rather than on blind adherence to tradition. The said
reason of the case there consisted in that it was the case of the
examination of the body by physicians, which could be and
doubtless was interpreted by this court, as being no compulsion of
the petitioner therein to furnish evidence by means of testimonial
act. In reality she was not compelled to execute any positive act,
much less a testimonial act; she was only enjoined from something
preventing the examination; all of which is very different from what
is required of the petitioner of the present case, where it is sought
to compel him to perform a positive, testimonial act, to write and
give a specimen of his handwriting for the purpose of comparison.
Besides, in the case of Villamor vs. Summers, it was sought to
exhibit something already in existence, while in the case at bar, the
question deals with something not yet in existence, and it is
precisely sought to compel the petitioner to make, prepare, or
produce by this means, evidence not yet in existence; in short, to
create this evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to the
case of United States vs. Ong Siu Hong (36 Phil., 735), wherein the
defendant was not compelled to perform any testimonial act, but to
take out of his mouth the morphine he had there. It was not
compelling him to testify or to be a witness or to furnish, much less
make, prepare, or create through a testimonial act, evidence for
his own condemnation.
Wherefore, we find the present action well taken, and it is ordered
that the respondents and those under their orders desist and
abstain absolutely and forever from compelling the petitioner to
take down dictation in his handwriting for the purpose of submitting
the latter for comparison.
Without express pronouncement as to costs. So ordered.
536 US 304 June 20, 2002
ATKINS v. VIRGINIA, (2002)
No. 00-8452
Argued: February 20, 2002 Decided: June 20, 2002
Petitioner Atkins was convicted of capital murder and related crimes
by a Virginia jury and sentenced to death. Affirming, the Virginia
Supreme Court relied on Penry v. Lynaugh, 492 U. S. 302, in
rejecting Atkins' contention that he could not be sentenced to death
because he is mentally retarded.
Held: Executions of mentally retarded criminals are "cruel and
unusual punishments" prohibited by the Eighth Amendment. Pp. 5-
17.
(a) A punishment is "excessive," and therefore prohibited by the
Amendment, if it is not graduated and proportioned to the
offense. E.g., Weems v. United States, 217 U. S. 349, 367. An
excessiveness claim is judged by currently prevailing standards of
decency. Trop v. Dulles, 356 U. S. 86, 100-101. Proportionality
review under such evolving standards should be informed by
objective factors to the maximum possible extent, see, e.g.,
Harmelin v. Michigan, 501 U. S. 957, 1000, the clearest and most
reliable of which is the legislation enacted by the country's
legislatures, Penry, 433 U. S. 584, 597. Pp. 5-8.
(b) Much has changed since Penry's conclusion that the two
state statutes then existing that prohibited such executions, even
when added to the 14 States that had rejected capital punishment
completely, did not provide sufficient evidence of a consensus. 492
U. S., at 334. Subsequently, a significant number of States have
concluded that death is not a suitable punishment for a mentally
retarded criminal, and similar bills have passed at least one house
in other States. It is not so much the number of these States that
is significant, but the consistency of the direction of change. Given
that anticrime legislation is far more popular than legislation
protecting violent criminals, the large number of States prohibiting
the execution of mentally retarded persons (and the complete
absence of legislation reinstating such executions) provides
powerful evidence that today society views mentally retarded
offenders as categorically less culpable than the average criminal.
The evidence carries even greater force when it is noted that the
legislatures addressing the issue have voted overwhelmingly in
favor of the prohibition. Moreover, even in States allowing the
execution of mentally retarded offenders, the practice is
uncommon. Pp. 8-12.
(c) An independent evaluation of the issue reveals no reason for
the Court to disagree with the legislative consensus. Clinical
definitions of mental retardation require not only subaverage
intellectual functioning, but also significant limitations in adaptive
skills. Mentally retarded persons frequently know the difference
between right and wrong and are competent to stand trial, but, by
definition, they have diminished capacities to understand and
process information, to communicate, to abstract from mistakes
and learn from experience, to engage in logical reasoning, to
control impulses, and to understand others' reactions. Their
deficiencies do not warrant an exemption from criminal sanctions,
but diminish their personal culpability. In light of these deficiencies,
the Court's death penalty jurisprudence provides two reasons to
agree with the legislative consensus. First, there is a serious
question whether either justification underpinning the death
penalty--retribution and deterrence of capital crimes--applies to
mentally retarded offenders. As to retribution, the severity of the
appropriate punishment necessarily depends on the offender's
culpability. If the culpability of the average murderer is insufficient
to justify imposition of death, see Godfrey v. Georgia, 446 U. S.
420, 433, the lesser culpability of the mentally retarded offender
surely does not merit that form of retribution. As to deterrence, the
same cognitive and behavioral impairments that make mentally
retarded defendants less morally culpable also make it less likely
that they can process the information of the possibility of execution
as a penalty and, as a result, control their conduct based upon that
information. Nor will exempting the mentally retarded from
execution lessen the death penalty's deterrent effect with respect
708
to offenders who are not mentally retarded. Second, mentally
retarded defendants in the aggregate face a special risk of wrongful
execution because of the possibility that they will unwittingly
confess to crimes they did not commit, their lesser ability to give
their counsel meaningful assistance, and the facts that they are
typically poor witnesses and that their demeanor may create an
unwarranted impression of lack of remorse for their crimes. Pp. 12-
17.
260 Va. 375, 534 S. E. 2d 312, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in
which O'Connor, Kennedy, Souter, Ginsburg, and Breyer,
JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in
which Scalia and Thomas, JJ., joined. Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined.
DARYL RENARD ATKINS, PETITIONER v. VIRGINIA
on writ of certiorari to the supreme court of virginia
[June 20, 2002]
Justice Stevens delivered the opinion of the Court.
Those mentally retarded persons who meet the law's
requirements for criminal responsibility should be tried and
punished when they commit crimes. Because of their disabilities in
areas of reasoning, judgment, and control of their impulses,
however, they do not act with the level of moral culpability that
characterizes the most serious adult criminal conduct. Moreover,
their impairments can jeopardize the reliability and fairness of
capital proceedings against mentally retarded defendants.
Presumably for these reasons, in the 13 years since we
decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American
public, legislators, scholars, and judges have deliberated over the
question whether the death penalty should ever be imposed on a
mentally retarded criminal. The consensus reflected in those
deliberations informs our answer to the question presented by this
case: whether such executions are "cruel and unusual
punishments" prohibited by the Eighth Amendment to the Federal
Constitution.
I
Petitioner, Daryl Renard Atkins, was convicted of abduction,
armed robbery, and capital murder, and sentenced to death. At
approximately midnight on August 16, 1996, Atkins and William
Jones, armed with a semiautomatic handgun, abducted Eric
Nesbitt, robbed him of the money on his person, drove him to an
automated teller machine in his pickup truck where cameras
recorded their withdrawal of additional cash, then took him to an
isolated location where he was shot eight times and killed.
Jones and Atkins both testified in the guilt phase of Atkins'
trial.1 Each confirmed most of the details in the other's account of
the incident, with the important exception that each stated that the
other had actually shot and killed Nesbitt. Jones' testimony, which
was both more coherent and credible than Atkins', was obviously
credited by the jury and was sufficient to establish Atkins' guilt.2 At
the penalty phase of the trial, the State introduced victim impact
evidence and proved two aggravating circumstances: future
dangerousness and "vileness of the offense." To prove future
dangerousness, the State relied on Atkins' prior felony convictions
as well as the testimony of four victims of earlier robberies and
assaults. To prove the second aggravator, the prosecution relied
upon the trial record, including pictures of the deceased's body and
the autopsy report.
In the penalty phase, the defense relied on one witness,
Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins
before trial and concluded that he was "mildly mentally
retarded."3 His conclusion was based on interviews with people who
knew Atkins,4 a review of school and court records, and the
administration of a standard intelligence test which indicated that
Atkins had a full scale IQ of 59.5
The jury sentenced Atkins to death, but the Virginia Supreme
Court ordered a second sentencing hearing because the trial court
had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445
(1999). At the resentencing, Dr. Nelson again testified. The State
presented an expert rebuttal witness, Dr. Stanton Samenow, who
expressed the opinion that Atkins was not mentally retarded, but
rather was of "average intelligence, at least," and diagnosable as
having antisocial personality disorder.6 App. 476. The jury again
sentenced Atkins to death.
The Supreme Court of Virginia affirmed the imposition of the
death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000).
Atkins did not argue before the Virginia Supreme Court that his
sentence was disproportionate to penalties imposed for similar
crimes in Virginia, but he did contend "that he is mentally retarded
and thus cannot be sentenced to death." Id., at 386, 534 S. E. 2d,
at 318. The majority of the state court rejected this contention,
relying on our holding in Penry. 260 Va., at 387, 534 S. E. 2d, at
319. The Court was "not willing to commute Atkins' sentence of
death to life imprisonment merely because of his IQ score." Id., at
390, 534 S. E. 2d, at 321.
Justice Hassell and Justice Koontz dissented. They rejected
Dr. Samenow's opinion that Atkins possesses average intelligence
as "incredulous as a matter of law," and concluded that "the
imposition of the sentence of death upon a criminal defendant who
has the mental age of a child between the ages of 9 and 12 is
excessive." Id., at 394, 395-396, 534 S. E. 2d, at 323-324. In their
opinion, "it is indefensible to conclude that individuals who are
mentally retarded are not to some degree less culpable for their
criminal acts. By definition, such individuals have substantial
limitations not shared by the general population. A moral and
civilized society diminishes itself if its system of justice does not
afford recognition and consideration of those limitations in a
meaningful way." Id., at 397, 534 S. E. 2d, at 325.
Because of the gravity of the concerns expressed by the
dissenters, and in light of the dramatic shift in the state legislative
landscape that has occurred in the past 13 years, we granted
certiorari to revisit the issue that we first addressed in
the Penry case. 533 U. S. 976 (2001).
II
The Eighth Amendment succinctly prohibits "excessive"
sanctions. It provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted." In Weems v. United States, 217 U. S. 349 (1910), we
held that a punishment of 12 years jailed in irons at hard and
painful labor for the crime of falsifying records was excessive. We
explained "that it is a precept of justice that punishment for crime
should be graduated and proportioned to the offense." Id., at 367.
We have repeatedly applied this proportionality precept in later
cases interpreting the Eighth Amendment.
See Harmelin v. Michigan, 501 U. S. 957, 997-998 (1991)
(Kennedy, J., concurring in part and concurring in judgment); see
also id., at 1009-1011 (White, J., dissenting).7 Thus, even though
"imprisonment for ninety days is not, in the abstract, a punishment
which is either cruel or unusual," it may not be imposed as a penalty
for "the `status' of narcotic addiction," Robinson v. California, 370
U. S. 660, 666-667 (1962), because such a sanction would be
excessive. As Justice Stewart explained in Robinson: "Even one day
in prison would be a cruel and unusual punishment for the `crime'
of having a common cold." Id., at 667.
A claim that punishment is excessive is judged not by the
standards that prevailed in 1685 when Lord Jeffreys presided over
the "Bloody Assizes" or when the Bill of Rights was adopted, but
rather by those that currently prevail. As Chief Justice Warren
explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958):
709
"The basic concept underlying the Eighth Amendment is nothing
less than the dignity of man. ... The Amendment must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society." Id., at 100-101.
Proportionality review under those evolving standards should be
informed by " `objective factors to the maximum possible extent,' "
see Harmelin, 445 U. S 263, 274-275 (1980)). We have pinpointed
that the "clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country's
legislatures." Penry, 433 U. S. 584, 593-596 (1977), or for a
defendant who neither took life, attempted to take life, nor intended
to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982).
In Coker, we focused primarily on the then-recent legislation that
had been enacted in response to our decision 10 years earlier
in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to
support the conclusion that the "current judgment," though "not
wholly unanimous," weighed very heavily on the side of rejecting
capital punishment as a "suitable penalty for raping an adult
woman." Coker, 433 U. S., at 596. The "current legislative
judgment" relevant to our decision in Enmund was less clear than
in Coker but "nevertheless weigh[ed] on the side of rejecting
capital punishment for the crime at issue." Enmund, 458 U. S., at
793.
We also acknowledged in Coker that the objective evidence,
though of great importance, did not "wholly determine" the
controversy, "for the Constitution contemplates that in the end our
own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth
Amendment." 433 U. S., at 597. For example, in Enmund, we
concluded by expressing our own judgment about the issue:
"For purposes of imposing the death penalty, Enmund's
criminal culpability must be limited to his participation in the
robbery, and his punishment must be tailored to his personal
responsibility and moral guilt. Putting Enmund to death to avenge
two killings that he did not commit and had no intention of
committing or causing does not measurably contribute to the
retributive end of ensuring that the criminal gets his just deserts.
This is the judgment of most of the legislatures that have recently
addressed the matter, and we have no reason to disagree with that
judgment for purposes of construing and applying the Eighth
Amendment." 458 U. S., at 801 (emphasis added).
Thus, in cases involving a consensus, our own judgment is "brought
to bear," Coker, 433 U. S., at 597, by asking whether there is
reason to disagree with the judgment reached by the citizenry and
its legislators.
Guided by our approach in these cases, we shall first review the
judgment of legislatures that have addressed the suitability of
imposing the death penalty on the mentally retarded and then
consider reasons for agreeing or disagreeing with their judgment.
III
The parties have not called our attention to any state legislative
consideration of the suitability of imposing the death penalty on
mentally retarded offenders prior to 1986. In that year, the public
reaction to the execution of a mentally retarded murderer in
Georgia8 apparently led to the enactment of the first state statute
prohibiting such executions.9 In 1988, when Congress enacted
legislation reinstating the federal death penalty, it expressly
provided that a "sentence of death shall not be carried out upon a
person who is mentally retarded."10 In 1989, Maryland enacted a
similar prohibition.11 It was in that year that we decided Penry, and
concluded that those two state enactments, "even when added to
the 14 States that have rejected capital punishment completely, do
not provide sufficient evidence at present of a national consensus."
492 U. S., at 334.
Much has changed since then. Responding to the national
attention received by the Bowden execution and our decision
in Penry, state legislatures across the country began to address the
issue. In 1990 Kentucky and Tennessee enacted statutes similar to
those in Georgia and Maryland, as did New Mexico in 1991, and
Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and
1994.12 In 1995, when New York reinstated its death penalty, it
emulated the Federal Government by expressly exempting the
mentally retarded.13Nebraska followed suit in 1998.14 There appear
to have been no similar enactments during the next two years, but
in 2000 and 2001 six more States--South Dakota, Arizona,
Connecticut, Florida, Missouri, and North Carolina--joined the
procession.15 The Texas Legislature unanimously adopted a similar
bill,16 and bills have passed at least one house in other States,
including Virginia and Nevada.17
It is not so much the number of these States that is significant,
but the consistency of the direction of change.18 Given the well-
known fact that anticrime legislation is far more popular than
legislation providing protections for persons guilty of violent crime,
the large number of States prohibiting the execution of mentally
retarded persons (and the complete absence of States passing
legislation reinstating the power to conduct such executions)
provides powerful evidence that today our society views mentally
retarded offenders as categorically less culpable than the average
criminal. The evidence carries even greater force when it is noted
that the legislatures that have addressed the issue have voted
overwhelmingly in favor of the prohibition.19Moreover, even in
those States that allow the execution of mentally retarded
offenders, the practice is uncommon. Some States, for example
New Hampshire and New Jersey, continue to authorize executions,
but none have been carried out in decades. Thus there is little need
to pursue legislation barring the execution of the mentally retarded
in those States. And it appears that even among those States that
regularly execute offenders and that have no prohibition with
regard to the mentally retarded, only five have executed offenders
possessing a known IQ less than 70 since we decided Penry.20 The
practice, therefore, has become truly unusual, and it is fair to say
that a national consensus has developed against it.21
To the extent there is serious disagreement about the execution
of mentally retarded offenders, it is in determining which offenders
are in fact retarded. In this case, for instance, the Commonwealth
of Virginia disputes that Atkins suffers from mental retardation. Not
all people who claim to be mentally retarded will be so impaired as
to fall within the range of mentally retarded offenders about whom
there is a national consensus. As was our approach
in Ford v. Wainwright, with regard to insanity, "we leave to the
State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon its execution of sentences." 477
U. S. 399, 405, 416-417 (1986).22
IV
This consensus unquestionably reflects widespread judgment
about the relative culpability of mentally retarded offenders, and
the relationship between mental retardation and the penological
purposes served by the death penalty. Additionally, it suggests that
some characteristics of mental retardation undermine the strength
of the procedural protections that our capital jurisprudence
steadfastly guards.
As discussed above, clinical definitions of mental retardation
require not only subaverage intellectual functioning, but also
significant limitations in adaptive skills such as communication,
self-care, and self-direction that became manifest before age 18.
Mentally retarded persons frequently know the difference between
right and wrong and are competent to stand trial. Because of their
impairments, however, by definition they have diminished
capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in
710
logical reasoning, to control impulses, and to understand the
reactions of others.23 There is no evidence that they are more likely
to engage in criminal conduct than others, but there is abundant
evidence that they often act on impulse rather than pursuant to a
premeditated plan, and that in group settings they are followers
rather than leaders.24 Their deficiencies do not warrant an
exemption from criminal sanctions, but they do diminish their
personal culpability.
In light of these deficiencies, our death penalty jurisprudence
provides two reasons consistent with the legislative consensus that
the mentally retarded should be categorically excluded from
execution. First, there is a serious question as to whether either
justification that we have recognized as a basis for the death
penalty applies to mentally retarded
offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976), identified
"retribution and deterrence of capital crimes by prospective
offenders" as the social purposes served by the death penalty.
Unless the imposition of the death penalty on a mentally retarded
person "measurably contributes to one or both of these goals, it `is
nothing more than the purposeless and needless imposition of pain
and suffering,' and hence an unconstitutional
punishment." Enmund, 458 U. S., at 798.
With respect to retribution--the interest in seeing that the
offender gets his "just deserts"--the severity of the appropriate
punishment necessarily depends on the culpability of the offender.
Since Gregg, our jurisprudence has consistently confined the
imposition of the death penalty to a narrow category of the most
serious crimes. For example, in Godfrey v. Georgia, 446 U. S.
420 (1980), we set aside a death sentence because the petitioner's
crimes did not reflect "a consciousness materially more `depraved'
than that of any person guilty of murder." Id., at 433. If the
culpability of the average murderer is insufficient to justify the most
extreme sanction available to the State, the lesser culpability of the
mentally retarded offender surely does not merit that form of
retribution. Thus, pursuant to our narrowing jurisprudence, which
seeks to ensure that only the most deserving of execution are put
to death, an exclusion for the mentally retarded is appropriate.
With respect to deterrence--the interest in preventing capital
crimes by prospective offenders--"it seems likely that `capital
punishment can serve as a deterrent only when murder is the result
of premeditation and deliberation,' " Enmund, 458 U. S., at 799.
Exempting the mentally retarded from that punishment will not
affect the "cold calculus that precedes the decision" of other
potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of
calculus is at the opposite end of the spectrum from behavior of
mentally retarded offenders. The theory of deterrence in capital
sentencing is predicated upon the notion that the increased severity
of the punishment will inhibit criminal actors from carrying out
murderous conduct. Yet it is the same cognitive and behavioral
impairments that make these defendants less morally culpable--for
example, the diminished ability to understand and process
information, to learn from experience, to engage in logical
reasoning, or to control impulses--that also make it less likely that
they can process the information of the possibility of execution as
a penalty and, as a result, control their conduct based upon that
information. Nor will exempting the mentally retarded from
execution lessen the deterrent effect of the death penalty with
respect to offenders who are not mentally retarded. Such
individuals are unprotected by the exemption and will continue to
face the threat of execution. Thus, executing the mentally retarded
will not measurably further the goal of deterrence.
The reduced capacity of mentally retarded offenders provides a
second justification for a categorical rule making such offenders
ineligible for the death penalty. The risk "that the death penalty will
be imposed in spite of factors which may call for a less severe
penalty," Lockett v. Ohio, 438 U. S. 586, 605 (1978), is enhanced,
not only by the possibility of false confessions,25 but also by the
lesser ability of mentally retarded defendants to make a persuasive
showing of mitigation in the face of prosecutorial evidence of one
or more aggravating factors. Mentally retarded defendants may be
less able to give meaningful assistance to their counsel and are
typically poor witnesses, and their demeanor may create an
unwarranted impression of lack of remorse for their crimes.
As Penry demonstrated, moreover, reliance on mental retardation
as a mitigating factor can be a two-edged sword that may enhance
the likelihood that the aggravating factor of future dangerousness
will be found by the jury. 492 U. S., at 323-325. Mentally retarded
defendants in the aggregate face a special risk of wrongful
execution.
Our independent evaluation of the issue reveals no reason to
disagree with the judgment of "the legislatures that have recently
addressed the matter" and concluded that death is not a suitable
punishment for a mentally retarded criminal. We are not persuaded
that the execution of mentally retarded criminals will measurably
advance the deterrent or the retributive purpose of the death
penalty. Construing and applying the Eighth Amendment in the light
of our "evolving standards of decency," we therefore conclude that
such punishment is excessive and that the Constitution "places a
substantive restriction on the State's power to take the life" of a
mentally retarded offender. Ford, 477 U. S., at 405.
The judgment of the Virginia Supreme Court is reversed and the
case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
DARYL RENARD ATKINS, PETITIONER v. VIRGINIA
on writ of certiorari to the supreme court of virginia
[June 20, 2002]
Chief Justice Rehnquist, with whom Justice Scalia and Justice
Thomas join, dissenting.
The question presented by this case is whether a national
consensus deprives Virginia of the constitutional power to impose
the death penalty on capital murder defendants like petitioner, i.e.,
those defendants who indisputably are competent to stand trial,
aware of the punishment they are about to suffer and why, and
whose mental retardation has been found an insufficiently
compelling reason to lessen their individual responsibility for the
crime. The Court pronounces the punishment cruel and unusual
primarily because 18 States recently have passed laws limiting the
death eligibility of certain defendants based on mental retardation
alone, despite the fact that the laws of 19 other States besides
Virginia continue to leave the question of proper punishment to the
individuated consideration of sentencing judges or juries familiar
with the particular offender and his or her crime. See ante, at 9-
10.
I agree with Justice Scalia, post, at 1 (dissenting opinion), that
the Court's assessment of the current legislative judgment
regarding the execution of defendants like petitioner more
resembles a post hocrationalization for the majority's subjectively
preferred result rather than any objective effort to ascertain the
content of an evolving standard of decency. I write separately,
however, to call attention to the defects in the Court's decision to
place weight on foreign laws, the views of professional and religious
organizations, and opinion polls in reaching its conclusion.
See ante, at 11-12, n. 21. The Court's suggestion that these
sources are relevant to the constitutional question finds little
support in our precedents and, in my view, is antithetical to
considerations of federalism, which instruct that any "permanent
prohibition upon all units of democratic government must [be
apparent] in the operative acts (laws and the application of laws)
that the people have approved." Stanford v. Kentucky, 492 U. S.
361, 377 (1989) (plurality opinion). The Court's uncritical
acceptance of the opinion poll data brought to our attention,
moreover, warrants additional comment, because we lack sufficient
information to conclude that the surveys were conducted in
accordance with generally accepted scientific principles or are
711
capable of supporting valid empirical inferences about the issue
before us.
In making determinations about whether a punishment is "cruel
and unusual" under the evolving standards of decency embraced
by the Eighth Amendment, we have emphasized that legislation is
the "clearest and most reliable objective evidence of contemporary
values." Penry v. Lynaugh, 492 U. S. 302, 331 (1989). See
also McCleskey v. Kemp, 481 U. S. 279, 300 (1987). The reason
we ascribe primacy to legislative enactments follows from the
constitutional role legislatures play in expressing policy of a State.
" `[I]n a democratic society legislatures, not courts, are constituted
to respond to the will and consequently the moral values of the
people.' " Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint
opinion of Stewart, Powell, and Stevens, JJ.)
(quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger,
C. J., dissenting)). And because the specifications of punishments
are "peculiarly questions of legislative policy," Gore v. United
States, 357 U. S. 386, 393 (1958), our cases have cautioned
against using " `the aegis of the Cruel and Unusual Punishment
Clause' " to cut off the normal democratic
processes, Gregg, supra, at 176 (quoting Powell v. Texas, 392
U. S. 514, 533 (1968) (plurality opinion)).
Our opinions have also recognized that data concerning the
actions of sentencing juries, though entitled to less weight than
legislative judgments, " `is a significant and reliable index of
contemporary values,' " Coker v. Georgia, 433 U. S. 584,
596 (1977) (plurality opinion) (quoting Gregg, supra, at 181),
because of the jury's intimate involvement in the case and its
function of " `maintain[ing] a link between contemporary
community values and the penal system,' " Gregg, supra, at 181
(quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)).
In Coker, supra, at 596-597, for example, we credited data
showing that "at least 9 out of 10" juries in Georgia did not impose
the death sentence for rape convictions. And
in Enmund v. Florida, 458 U. S. 782, 793-794 (1982), where
evidence of the current legislative judgment was not as
"compelling" as that in Coker (but more so than that here), we
were persuaded by "overwhelming [evidence] that American juries
. . . repudiated imposition of the death penalty" for a defendant
who neither took life nor attempted or intended to take life.
In my view, these two sources--the work product of legislatures
and sentencing jury determinations--ought to be the sole indicators
by which courts ascertain the contemporary American conceptions
of decency for purposes of the Eighth Amendment. They are the
only objective indicia of contemporary values firmly supported by
our precedents. More importantly, however, they can be reconciled
with the undeniable precepts that the democratic branches of
government and individual sentencing juries are, by design, better
suited than courts to evaluating and giving effect to the complex
societal and moral considerations that inform the selection of
publicly acceptable criminal punishments.
In reaching its conclusion today, the Court does not take notice
of the fact that neither petitioner nor his amici have adduced any
comprehensive statistics that would conclusively prove (or
disprove) whether juries routinely consider death a
disproportionate punishment for mentally retarded offenders like
petitioner.**Instead, it adverts to
the fact that other countries have disapproved imposition of the
death penalty for crimes committed by mentally retarded offenders,
see ante, at 11-12, n. 21 (citing the Brief for The European Union
as Amicus Curiaein McCarver v. North Carolina, O. T. 2001, No. 00-
8727, p. 2). I fail to see, however, how the views of other countries
regarding the punishment of their citizens provide any support for
the Court's ultimate determination. While it is true that some of our
prior opinions have looked to "the climate of international
opinion," Coker, supra, at 596, n. 10, to reinforce a conclusion
regarding evolving standards of decency,
see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality
opinion); Enmund, supra, at 796-797, n. 22
(1982); Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (plurality
opinion); we have since explicitly rejected the idea that the
sentencing practices of other countries could "serve to establish the
first Eighth Amendment prerequisite, that [a] practice is accepted
among our people." Stanford, supra, at 369, n. 1 (emphasizing
that "American conceptions of decency ... are dispositive")
(emphasis in original).
Stanford's reasoning makes perfectly good sense, and the Court
offers no basis to question it. For if it is evidence of
a national consensus for which we are looking, then the viewpoints
of other countries simply are not relevant. And nothing
in Thompson, Enmund, Coker, or Trop suggests
otherwise. Thompson, Enmund, and Coker rely only on the bare
citation of international laws by the Trop plurality as authority to
deem other countries' sentencing choices germane. But
the Trop plurality--representing the view of only a minority of the
Court--offered no explanation for its own citation, and there is no
reason to resurrect this view given our sound rejection of the
argument in Stanford.
To further buttress its appraisal of contemporary societal
values, the Court marshals public opinion poll results and evidence
that several professional organizations and religious groups have
adopted official positions opposing the imposition of the death
penalty upon mentally retarded offenders. See ante, at 11-12,
n. 21 (citing Brief for American Psychological Association et al.
as Amici Curiae; Brief for American Association on Mental
Retardation et al. as Amici Curiae; noting that "representatives of
widely diverse religious communities . . . reflecting Christian,
Jewish, Muslim, and Buddhist traditions ... `share a conviction that
the execution of persons with mental retardation cannot be morally
justified' "; and stating that "polling data shows a widespread
consensus among Americans ... that executing the mentally
retarded is wrong"). In my view, none should be accorded any
weight on the Eight Amendment scale when the elected
representatives of a State's populace have not deemed them
persuasive enough to prompt legislative action. In Penry, 492
U. S., at 334-335, we were cited similar data and declined to take
them into consideration where the "public sentiment expressed in
[them]" had yet to find expression in state law. See
also Stanford, 492 U. S., at 377 (plurality opinion) (refusing "the
invitation to rest constitutional law upon such uncertain
foundations" as "public opinion polls, the views of interest groups,
and the positions adopted by various professional organizations").
For the Court to rely on such data today serves only to illustrate its
willingness to proscribe by judicial fiat--at the behest of private
organizations speaking only for themselves--a punishment about
which no across-the-board consensus has developed through the
workings of normal democratic processes in the laboratories of the
States.
categorical (e.g., "Do you think that persons convicted of murder
who are mentally retarded should or should not receive the death
penalty?"), and, as such, would not elicit whether the respondent
might agree or disagree that all mentally retarded people by
definition can never act with the level of culpability associated with
the death penalty, regardless of the severity of their impairment or
the individual circumstances of their crime. Second, none of the 27
polls cited disclose the targeted survey population or the sampling
techniques used by those who conducted the research. Thus, even
if one accepts that the survey instruments were adequately
designed to address a relevant question, it is impossible to know
whether the sample was representative enough or the methodology
sufficiently sound to tell us anything about the opinions of the
citizens of a particular State or the American public at large. Finally,
the information provided to us does not indicate why a particular
survey was conducted or, in a few cases, by whom, factors which
also can bear on the objectivity of the results. In order to be
credited here, such surveys should be offered as evidence at trial,
where their sponsors can be examined and cross-examined about
these matters.
***
There are strong reasons for limiting our inquiry into what
constitutes an evolving standard of decency under the Eighth
Amendment to the laws passed by legislatures and the practices of
sentencing juries in America. Here, the Court goes beyond these
well-established objective indicators of contemporary values. It
finds "further support to [its] conclusion" that a national consensus
has developed against imposing the death penalty on all mentally
retarded defendants in international opinion, the views of
professional and religious organizations, and opinion polls not
demonstrated to be reliable. Ante, at 11-12, n. 21. Believing this
view to be seriously mistaken, I dissent.

Even if I were to accept the legitimacy of the Court's decision to

reach beyond the product of legislatures and practices of
sentencing juries to discern a national standard of decency, I would
take issue with the blind-faith credence it accords the opinion polls
brought to our attention. An extensive body of social science
literature describes how methodological and other errors can affect
the reliability and validity of estimates about the opinions and
attitudes of a population derived from various sampling techniques.
Everything from variations in the survey methodology, such as the
choice of the target population, the sampling design used, the
questions asked, and the statistical analyses used to interpret the
data can skew the results. See, e.g., R. Groves, Survey Errors and
Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective
Phenomena (1984).

The Federal Judicial Center's Reference Manual on Scientific

Evidence 221-271 (1994) and its Manual for Complex Litigation
§21.493 pp. 101-103 (3d ed. 1995), offer helpful suggestions to
judges called upon to assess the weight and admissibility of survey
evidence on a factual issue before a court. Looking at the polling
data (reproduced in the Appendix to this opinion) in light of these
factors, one cannot help but observe how unlikely it is that the data
could support a valid inference about the question presented by this
case. For example, the questions reported to have been asked in
the various polls do not appear designed to gauge whether the
respondents might find the death penalty an acceptable
punishment for mentally retarded offenders in rare cases. Most are

712
[G.R. No. 149276. September 27, 2002]
JOVENCIO LIM and TERESITA LIM, petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES, THE REGIONAL TRIAL
COURT OF QUEZON CITY, BRANCH 217, THE CITY
PROSECUTOR OF QUEZON CITY, AND WILSON
CHAM, respondents.
DECISION
CORONA, J.:
The constitutionality of PD 818, a decree which amended
Article 315 of the Revised Penal Code by increasing the penalties
for estafa committed by means of bouncing checks, is being
challenged in this petition for certiorari, for being violative of the
due process clause, the right to bail and the provision against cruel,
degrading or inhuman punishment enshrined under the
Constitution.
The antecedents of this case, as gathered from the parties
pleadings and documentary proofs, follow.
In December 1991, petitioner spouses issued to private
respondent two postdated checks, namely, Metrobank check no.
464728 dated January 15, 1992 in the amount of P365,750 and
Metrobank check no. 464743 dated January 22, 1992 in the amount
of P429,000. Check no. 464728 was dishonored upon presentment
for having been drawn against insufficient funds while check no.
464743 was not presented for payment upon request of petitioners
who promised to replace the dishonored check.
When petitioners reneged on their promise to cover the
amount of check no. 464728, the private respondent filed a
complaint-affidavit before the Office of the City Prosecutor of
Quezon City charging petitioner spouses with the crime of estafa
under Article 315, par. 2 (d) of the Revised Penal Code, as amended
by PD 818.
On February 16, 2001, the City Prosecutor issued a resolution
finding probable cause against petitioners and recommending the
filing of an information for estafa with no bail recommended. On
the same day, an information for the crime of estafa was filed with
Branch 217 of the Regional Trial Court of Quezon City against
petitioners. The case was docketed as Criminal Case No. Q-01-
101574. Thereafter, the trial court issued a warrant for the arrest
of herein petitioners, thus:
It appearing on the face of the information and from supporting
affidavit of the complaining witness and its annexes that probable
cause exists, that the crime charged was committed and accused
is probably guilty thereof, let a warrant for the arrest of the accused
be issued.
No Bail Recommended.
SO ORDERED.[1]
On July 18, 2001, petitioners filed an Urgent Motion to Quash
Information and Warrant of Arrest which was denied by the trial
court.Likewise, petitioners motion for bail filed on July 24, 2001
was denied by the trial court on the same day. Petitioner Jovencio
Lim was arrested by virtue of the warrant of arrest issued by the
trial court and was detained at the Quezon City Jail. However,
petitioner Teresita Lim remained at large.
On August 22, 2001, petitioners filed the instant petition for
certiorari imputing grave abuse of discretion on the part of the
lower court and the Office of the City Prosecutor of Quezon City,
arguing that PD 818 violates the constitutional provisions on due
process, bail and imposition of cruel, degrading or inhuman
punishment.
713
In a resolution dated February 26, 2002, this Court granted
the petition of Jovencio Lim to post bail pursuant to Department of
Justice Circular No. 74 dated November 6, 2001 which amended
the 2000 Bail Bond Guide involving estafa under Article 315, par. 2
(d), and qualified theft. Said Circular specifically provides as
follows:
xxx xxx xxx
3) Where the amount of fraud is P32,000.00 or over in
which the imposable penalty is reclusion
temporal to reclusion perpetua, bail shall be based
on reclusion temporal maximum, pursuant to Par. 2
(a) of the 2000 Bail Bond Guide, multiplied by
P2,000.00, plus an additional of P2,000.00 for every
P10,000.00 in excess of P22,000.00; Provided,
however, that the total amount of bail shall not
exceed P60,000.00.
In view of the aforementioned resolution, the matter
concerning bail shall no longer be discussed. Thus, this decision will
focus on whether or not PD 818 violates Sections 1 and 19 of Article
III of the Constitution, which respectively provide:
Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
xxx
Section 19 (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. x x x.
We shall deal first with the issue of whether PD 818 was
enacted in contravention of Section 19 of Article III of the
Constitution. In this regard, the impugned provision of PD 818
reads as follows:
SECTION 1. Any person who shall defraud another by means of
false pretenses or fraudulent acts as defined in paragraph 2(d) of
Article 315 of the Revised Penal Code, as amended by Republic Act
No. 4885, shall be punished by:
1st. The penalty of reclusion temporal if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos, and if such
amount exceeds the later sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year
for each additional 10,000 pesos but the total penalty which may
be imposed shall in no case exceed thirty years. In such cases, and
in connection with the accessory penalties which may be imposed
under the Revised Penal Code, the penalty shall be
termed reclusion perpetua;
2nd. The penalty of prision mayor in its maximum period, if the
amount of the fraud is over 6,000 pesos but does not exceed
12,000 pesos.
3rd. The penalty of prision mayor in its medium period, if such
amount is over 200 pesos but does not exceed 6,000 pesos; and
4th. By prision mayor in its minimum period, if such amount does
not exceed 200 pesos.
Petitioners contend that, inasmuch as the amount of the
subject check is P365,750, they can be penalized with reclusion
perpetua or 30 years of imprisonment. This penalty, according to
petitioners, is too severe and disproportionate to the crime they
committed and infringes on the express mandate of Article III,
Section 19 of the Constitution which prohibits the infliction of cruel,
degrading and inhuman punishment.
 Settled is the rule that a punishment authorized by statute is With the foregoing considerations in mind, this Court upholds
not cruel, degrading or disproportionate to the nature of the offense the constitutionality of PD 818.
unless it is flagrantly and plainly oppressive and wholly
disproportionate to the nature of the offense as to shock the moral WHEREFORE, the petition is hereby DISMISSED.
sense of the community. It takes more than merely being harsh,
SO ORDERED.
excessive, out of proportion or severe for a penalty to be obnoxious
to the Constitution.[2] Based on this principle, the Court has
consistently overruled contentions of the defense that the penalty
of fine or imprisonment authorized by the statute involved is cruel
and degrading.

In People vs. Tongko,[3] this Court held that the prohibition

against cruel and unusual punishment is generally aimed at the
form or character of the punishment rather than its severity in
respect of its duration or amount, and applies to punishments which
never existed in America or which public sentiment regards as cruel
or obsolete. This refers, for instance, to those inflicted at the
whipping post or in the pillory, to burning at the stake, breaking on
the wheel, disemboweling and the like. The fact that the penalty is
severe provides insufficient basis to declare a law unconstitutional
and does not, by that circumstance alone, make it cruel and
inhuman.

Petitioners also argue that while PD 818 increased the

imposable penalties for estafa committed under Article 315, par. 2
(d) of the Revised Penal Code, it did not increase the amounts
corresponding to the said new penalties. Thus, the original amounts
provided for in the Revised Penal Code have remained the same
notwithstanding that they have become negligible and
insignificant compared to the present value of the peso.

This argument is without merit. The primary purpose of PD

818 is emphatically and categorically stated in the following:

WHEREAS, reports received of late indicate an upsurge of estafa

(swindling) cases committed by means of bouncing checks;

WHEREAS, if not checked at once, these criminal acts would erode

the peoples confidence in the use of negotiable instruments as a
medium of commercial transaction and consequently result in the
retardation of trade and commerce and the undermining of the
banking system of the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this

kind of estafa cases by increasing the existing penalties provided
therefor.

Clearly, the increase in the penalty, far from being cruel and
degrading, was motivated by a laudable purpose, namely, to
effectuate the repression of an evil that undermines the countrys
commercial and economic growth, and to serve as a necessary
precaution to deter people from issuing bouncing checks. The fact
that PD 818 did not increase the amounts corresponding to the new
penalties only proves that the amount is immaterial and
inconsequential. What the law sought to avert was the proliferation
of estafa cases committed by means of bouncing checks.Taking into
account the salutary purpose for which said law was decreed, we
conclude that PD 818 does not violate Section 19 of Article III of
the Constitution.

Moreover, when a law is questioned before the Court, the

presumption is in favor of its constitutionality. To justify its
nullification, there must be a clear and unmistakable breach of the
Constitution, not a doubtful and argumentative one.[4] The burden
of proving the invalidity of a law rests on those who challenge it. In
this case, petitioners failed to present clear and convincing proof to
defeat the presumption of constitutionality of PD 818.

With respect to the issue of whether PD 818 infringes on

Section 1 of Article III of the Constitution, petitioners claim that PD
818 is violative of the due process clause of the Constitution as it
was not published in the Official Gazette. This claim is incorrect and
must be rejected. Publication, being an indispensable part of due
process, is imperative to the validity of laws, presidential decrees
and executive orders.[5] PD 818 was published in the Official
Gazette on December 1, 1975.[6]

714
G.R. No. 180016 April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule
45 of the Rules of Court, dated November 5, 2007, of petitioner Lito
Corpuz (petitioner), seeking to reverse and set aside the
Decision1 dated March 22, 2007 and Resolution2 dated September
5, 2007 of the Court of Appeals (CA), which affirmed with
modification the Decision3 dated July 30, 2004 of the Regional Trial
Court (RTC), Branch 46, San Fernando City, finding the petitioner
guilty beyond reasonable doubt of the crime of Estafa under Article
315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the
Admiral Royale Casino in Olongapo City sometime in 1990. Private
complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces
of jewelry for sale, petitioner approached him on May 2, 1991 at
the same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an
18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of
₱98,000.00, as evidenced by a receipt of even date. They both
agreed that petitioner shall remit the proceeds of the sale, and/or,
if unsold, to return the same items, within a period of 60 days. The
period expired without petitioner remitting the proceeds of the sale
or returning the pieces of jewelry. When private complainant was
able to meet petitioner, the latter promised the former that he will
pay the value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of
estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
₱45,000.00; one (1) three-baht men's bracelet, 22k, worth
₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos
(₱98,000.00), Philippine currency, under expressed obligation on
the part of said accused to remit the proceeds of the sale of the
said items or to return the same, if not sold, said accused, once in
possession of the said items, with intent to defraud, and with
unfaithfulness and abuse of confidence, and far from complying
with his aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate, misapply and convert to
his own personal use and benefit the aforesaid jewelries (sic) or the
proceeds of the sale thereof, and despite repeated demands, the
accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine
currency, to the damage and prejudice of said Danilo Tangcoy in
the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel,
entered a plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the
lone testimony of Danilo Tangcoy. On the other hand, the defense
715
presented the lone testimony of petitioner, which can be
summarized, as follows:
Petitioner and private complainant were collecting agents of
Antonio Balajadia, who is engaged in the financing business of
extending loans to Base employees. For every collection made, they
earn a commission. Petitioner denied having transacted any
business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in
1989 for which he was made to sign a blank receipt. He claimed
that the same receipt was then dated May 2, 1991 and used as
evidence against him for the supposed agreement to sell the
subject pieces of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt
of the crime charged in the Information. The dispositive portion of
the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315,
paragraph one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary
mitigating circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty
of deprivation of liberty consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM,
to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Temporal in its minimum period AS MAXIMUM; to indemnify private
complainant Danilo Tangcoy the amount of ₱98,000.00 as actual
damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the
appeal of petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment
dated July 30, 2004 of the RTC of San Fernando City (P), Branch
46, is hereby AFFIRMED with MODIFICATION on the imposable
prison term, such that accused-appellant shall suffer the
indeterminate penalty of 4 years and 2 months of prision
correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional ₱10,000.00, or a total of
7 years. The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed
with this Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING
THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR
ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE
SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF
UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE
INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT
FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT
WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS
PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS
PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS
OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED
TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE
STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor
General (OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed
to object to their admissibility.
The information was not defective inasmuch as it sufficiently
established the designation of the offense and the acts complained
of.
The prosecution sufficiently established all the elements of the
crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive,
and carry even more weight when said court affirms the findings of
the trial court, absent any showing that the findings are totally
devoid of support in the records, or that they are so glaringly
erroneous as to constitute grave abuse of discretion.4 Petitioner is
of the opinion that the CA erred in affirming the factual findings of
the trial court. He now comes to this Court raising both procedural
and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the
trial court, admitting in evidence a receipt dated May 2, 1991
marked as Exhibit "A" and its submarkings, although the same was
merely a photocopy, thus, violating the best evidence rule.
However, the records show that petitioner never objected to the
admissibility of the said evidence at the time it was identified,
marked and testified upon in court by private complainant. The CA
also correctly pointed out that petitioner also failed to raise an
objection in his Comment to the prosecution's formal offer of
evidence and even admitted having signed the said receipt. The
established doctrine is that when a party failed to interpose a timely
objection to evidence at the time they were offered in evidence,
such objection shall be considered as waived.5
Another procedural issue raised is, as claimed by petitioner, the
formally defective Information filed against him. He contends that
the Information does not contain the period when the pieces of
716
jewelry were supposed to be returned and that the date when the
crime occurred was different from the one testified to by private
complainant. This argument is untenable. The CA did not err in
finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance
in the Information cannot be made for the first time on appeal. It
is true that the gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the appropriation or
conversion of money or property received to the prejudice of the
owner6 and that the time of occurrence is not a material ingredient
of the crime, hence, the exclusion of the period and the wrong date
of the occurrence of the crime, as reflected in the Information, do
not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states
the statutory designation of the offense and the acts or omissions
constitutive thereof. Then Section 6, Rule 110 of the Rules of Court
provides that a complaint or information is sufficient if it states the
name of the accused;
the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a
reading of the subject Information shows compliance with the
foregoing rule. That the time of the commission of the offense was
stated as " on or about the fifth (5th) day of July, 1991" is not
likewise fatal to the prosecution's cause considering that Section 11
of the same Rule requires a statement of the precise time only when
the same is a material ingredient of the offense. The gravamen of
the crime of estafa under Article 315, paragraph 1 (b) of the
Revised Penal Code (RPC) is the appropriation or conversion of
money or property received to the prejudice of the offender. Thus,
aside from the fact that the date of the commission thereof is not
an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also
near the due date within which accused-appellant should have
delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance
with the rules. Accused-appellant, therefore, cannot now be
allowed to claim that he was not properly apprised of the charges
proferred against him.7
It must be remembered that petitioner was convicted of the crime
of Estafa under Article 315, paragraph 1 (b) of the RPC, which
reads:
ART. 315. Swindling (estafa). – Any person who shall defraud
another by any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x
The elements of estafa with abuse of confidence are as follows: (a)
that money, goods or other personal property is received by the
offender in trust, or on commission, or for administration, or under
any other obligation involving the duty to make delivery of, or to
return the same; (b) that there be misappropriation or conversion
of such money or property by the offender or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial
is to the prejudice of another; and (d) that there is a demand made
by the offended party on the offender.8
Petitioner argues that the last element, which is, that there is a case, property], would be tantamount to a demand.12 As
demand by the offended party on the offender, was not proved. expounded in Asejo v. People:13
This Court disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner after almost two (2)
With regard to the necessity of demand, we agree with the CA that
months from the time he gave the pieces of jewelry and asked
demand under this kind of estafa need not be formal or written.
petitioner about the same items with the latter promising to pay
The appellate court observed that the law is silent with regard to
them. Thus:
the form of demand in estafa under Art. 315 1(b), thus:

PROS. MARTINEZ
When the law does not qualify, We should not qualify. Should a
written demand be necessary, the law would have stated so.
q Now, Mr. Witness, this was executed on 2 May 1991, and this Otherwise, the word "demand" should be interpreted in its general
transaction could have been finished on 5 July 1991, the question meaning as to include both written and oral demand. Thus, the
is what happens (sic) when the deadline came? failure of the prosecution to present a written demand as evidence
is not fatal.
a I went looking for him, sir.
In Tubb v. People, where the complainant merely verbally inquired
about the money entrusted to the accused, we held that the query
q For whom?
was tantamount to a demand, thus:

a Lito Corpuz, sir.

x x x [T]he law does not require a demand as a condition precedent
to the existence of the crime of embezzlement. It so happens only
q Were you able to look (sic) for him? that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same
way, however, be established by other proof, such as that
a I looked for him for a week, sir. introduced in the case at bar.14

q Did you know his residence? In view of the foregoing and based on the records, the prosecution
was able to prove the existence of all the elements of the crime.
a Yes, sir. Private complainant gave petitioner the pieces of jewelry in trust,
or on commission basis, as shown in the receipt dated May 2, 1991
with an obligation to sell or return the same within sixty (60) days,
q Did you go there? if unsold. There was misappropriation when petitioner failed to
remit the proceeds of those pieces of jewelry sold, or if no sale took
a Yes, sir. place, failed to return the same pieces of jewelry within or after the
agreed period despite demand from the private complainant, to the
prejudice of the latter.
q Did you find him?

Anent the credibility of the prosecution's sole witness, which is

a No, sir. questioned by petitioner, the same is unmeritorious. Settled is the
rule that in assessing the credibility of witnesses, this Court gives
q Were you able to talk to him since 5 July 1991? great respect to the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and their
deportment on the witness stand, an opportunity denied the
a I talked to him, sir. appellate courts, which merely rely on the records of the
case.15 The assessment by the trial court is even conclusive and
q How many times? binding if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence, especially when such finding
is affirmed by the CA.16 Truth is established not by the number of
a Two times, sir. witnesses, but by the quality of their testimonies, for in determining
the value and credibility of evidence, the witnesses are to be
weighed not numbered.17
q What did you talk (sic) to him?

As regards the penalty, while this Court's Third Division was

a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I
asked him where the items are and he promised me that he will
pay these amount, sir.
q Up to this time that you were here, were you able to collect from
him partially or full?
a No, sir.9
No specific type of proof is required to show that there was
demand.10 Demand need not even be formal; it may be
verbal.11 The specific word "demand" need not even be used to
show that it has indeed been made upon the person charged, since
even a mere query as to the whereabouts of the money [in this
deliberating on this case, the question of the continued validity of
imposing on persons convicted of crimes involving property came
up. The legislature apparently pegged these penalties to the value
of the money and property in 1930 when it enacted the Revised
Penal Code. Since the members of the division reached no
unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en banc for
consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions
on the matter. Among those that graciously complied were Dean
Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo
F. Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments
before the Court en banc, with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the
matter, this Court finds the following:

717
There seems to be a perceived injustice brought about by the range
of penalties that the courts continue to impose on crimes against
property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932.
However, this Court cannot modify the said range of penalties
because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided
for in the said crimes cannot be remedied through this Court's
decisions, as that would be encroaching upon the power of another
branch of the government. This, however, does not render the
whole situation without any remedy. It can be appropriately
presumed that the framers of the Revised Penal Code (RPC) had
anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable
by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons
which induce the court to believe that said act should be made the
subject of penal legislation.
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the sentence,
when a strict enforcement of the provisions of this Code would
result in the imposition of a clearly excessive penalty, taking into
consideration the degree of malice and the injury caused by the
offense.18
The first paragraph of the above provision clearly states that for
acts bourne out of a case which is not punishable by law and the
court finds it proper to repress, the remedy is to render the proper
decision and thereafter, report to the Chief Executive, through the
Department of Justice, the reasons why the same act should be the
subject of penal legislation. The premise here is that a deplorable
act is present but is not the subject of any penal legislation, thus,
the court is tasked to inform the Chief Executive of the need to
make that act punishable by law through legislation. The second
paragraph is similar to the first except for the situation wherein the
act is already punishable by law but the corresponding penalty is
deemed by the court as excessive. The remedy therefore, as in the
first paragraph is not to suspend the execution of the sentence but
to submit to the Chief Executive the reasons why the court
considers the said penalty to be non-commensurate with the act
committed. Again, the court is tasked to inform the Chief Executive,
this time, of the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo
B. Guevara opined that in Article 5, the duty of the court is merely
to report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes
to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla
poena sige lege," that is, that there can exist no punishable act
except those previously and specifically provided for by penal
statute.
No matter how reprehensible an act is, if the law-making body does
not deem it necessary to prohibit its perpetration with penal
sanction, the Court of justice will be entirely powerless to punish
such act.
Under the provisions of this article the Court cannot suspend the
execution of a sentence on the ground that the strict enforcement
of the provisions of this Code would cause excessive or harsh
penalty. All that the Court could do in such eventuality is to report
the matter to the Chief Executive with a recommendation for an
amendment or modification of the legal provisions which it believes
to be harsh.20
718
Anent the non-suspension of the execution of the sentence, retired
Chief Justice Ramon C. Aquino and retired Associate Justice
Carolina C. Griño-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian
principle that justice must be tempered with mercy. Generally, the
courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by
law upon conviction of violations of particular statutes are too
severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the
courts to enforce the will of the legislator in all cases unless it
clearly appears that a given penalty falls within the prohibited class
of excessive fines or cruel and unusual punishment." A petition for
clemency should be addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against
property be based on the current inflation rate or at the ratio of
₱1.00 is equal to ₱100.00 . However, it would be dangerous as this
would result in uncertainties, as opposed to the definite imposition
of the penalties. It must be remembered that the economy
fluctuates and if the proposed imposition of the penalties in crimes
against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the
RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also
improper to presume why the present legislature has not made any
moves to amend the subject penalties in order to conform with the
present times. For all we know, the legislature intends to retain the
same penalties in order to deter the further commission of those
punishable acts which have increased tremendously through the
years. In fact, in recent moves of the legislature, it is apparent that
it aims to broaden the coverage of those who violate penal laws. In
the crime of Plunder, from its original minimum amount of
₱100,000,000.00 plundered, the legislature lowered it to
₱50,000,000.00. In the same way, the legislature lowered the
threshold amount upon which the Anti-Money Laundering Act may
apply, from ₱1,000,000.00 to ₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the
present penalties do not seem to be excessive compared to the
proposed imposition of their corresponding penalties. In Theft, the
provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be punished
by:
1. The penalty of prision mayor in its minimum and
medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but
if the value of the thing stolen exceeds the latter amount
the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty
which may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of
the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case
may be.
2. The penalty of prision correccional in its medium and
maximum periods, if the value of the thing stolen is more
than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and
medium periods, if the value of the property stolen is
more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision
correccional in its minimum period, if the value of the
 property stolen is over 50 pesos but does not exceed 200
pesos.
5. Arresto mayor to its full extent, if such value is over 5
pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if
such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the
theft is committed under the circumstances enumerated
in paragraph 3 of the next preceding article and the value
of the thing stolen does not exceed 5 pesos. If such value
exceeds said amount, the provision of any of the five
preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not
exceeding 50 pesos, when the value of the thing stolen is
not over 5 pesos, and the offender shall have acted under
the impulse of hunger, poverty, or the difficulty of earning
a livelihood for the support of himself or his family.
In a case wherein the value of the thing stolen is ₱6,000.00, the
above-provision states that the penalty is prision correccional in its
minimum and medium periods (6 months and 1 day to 4 years and
2 months). Applying the proposal, if the value of the thing stolen is
₱6,000.00, the penalty is imprisonment of arresto mayor in its
medium period to prision correccional minimum period (2 months
and 1 day to 2 years and 4 months). It would seem that under the
present law, the penalty imposed is almost the same as the penalty
proposed. In fact, after the application of the Indeterminate
Sentence Law under the existing law, the minimum penalty is still
lowered by one degree; hence, the minimum penalty is arresto
mayor in its medium period to maximum period (2 months and 1
day to 6 months), making the offender qualified for pardon or
parole after serving the said minimum period and may even apply
for probation. Moreover, under the proposal, the minimum penalty
after applying the Indeterminate Sentence Law is arresto menor in
its maximum period to arresto mayor in its minimum period (21
days to 2 months) is not too far from the minimum period under
the existing law. Thus, it would seem that the present penalty
imposed under the law is not at all excessive. The same is also true
in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value
of the thing stolen in the crime of Theft and the damage caused in
the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper
penalty to be imposed, would be too wide and the penalty
imposable would no longer be commensurate to the act committed
and the value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value
would be modified but the penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00
to ₱2,200,000.00, punished by prision mayor minimum to
prision mayor medium (6 years and 1 day to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punished by prision correccional medium
and to prision correccional maximum (2 years, 4 months
and 1 day to 6 years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to
₱600,000.00, punishable by prision correccional minimum
to prision correccional medium (6 months and 1 day to 4
years and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to
₱20,000.00, punishable by arresto mayor medium to
719
prision correccional minimum (2 months and 1 day to 2
years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00,
punishable by arresto mayor (1 month and 1 day to 6
months).
6. ₱5.00 will become ₱500.00, punishable by arresto
mayor minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value
would also be modified but the penalties are not changed, as
follows:
1st. ₱12,000.00 to ₱22,000.00, will become
₱1,200,000.00 to ₱2,200,000.00, punishable by prision
correccional maximum to prision mayor minimum (4
years, 2 months and 1 day to 8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00
to ₱1,200,000.00, punishable by prision correccional
minimum to prision correccional medium (6 months and
1 day to 4 years and 2 months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to
₱600,000.00, punishable by arresto mayor maximum to
prision correccional minimum (4 months and 1 day to 2
years and 4 months).
4th. ₱200.00 will become ₱20,000.00, punishable by
arresto mayor maximum (4 months and 1 day to 6
months).
An argument raised by Dean Jose Manuel I. Diokno, one of our
esteemed amici curiae, is that the incremental penalty provided
under Article 315 of the RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which
is determined according to a valid classification. The test developed
by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does
not rest on substantial distinctions as ₱10,000.00 may have been
substantial in the past, but it is not so today, which violates the
first requisite; the IPR was devised so that those who commit estafa
involving higher amounts would receive heavier penalties;
however, this is no longer achieved, because a person who steals
₱142,000.00 would receive the same penalty as someone who
steals hundreds of millions, which violates the second requisite;
and, the IPR violates requisite no. 3, considering that the IPR is
limited to existing conditions at the time the law was promulgated,
conditions that no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno
and declares the incremental penalty in Article 315 unconstitutional
for violating the equal protection clause, what then is the penalty
that should be applied in case the amount of the thing subject
matter of the crime exceeds ₱22,000.00? It seems that the DEAN DIOKNO:
proposition poses more questions than answers, which leads us
even more to conclude that the appropriate remedy is to refer these
....then....
matters to Congress for them to exercise their inherent power to
legislate laws.
JUSTICE PERALTA:
Even Dean Diokno was of the opinion that if the Court declares the
IPR unconstitutional, the remedy is to go to Congress. Thus: Ah, yeah. But if we declare the incremental penalty as
unsconstitutional, the court cannot fix the amount ...
xxxx
DEAN DIOKNO:
JUSTICE PERALTA:
No, Your Honor.
Now, your position is to declare that the incremental penalty should
be struck down as unconstitutional because it is absurd. JUSTICE PERALTA:

DEAN DIOKNO: ... as the equivalent of one, as an incremental penalty in excess of

Twenty-Two Thousand (₱22,000.00) Pesos.
Absurd, it violates equal protection, Your Honor, and cruel and
unusual punishment. DEAN DIOKNO:

JUSTICE PERALTA: No, Your Honor.

Then what will be the penalty that we are going to impose if the JUSTICE PERALTA:
amount is more than Twenty-Two Thousand (₱22,000.00) Pesos.
The Court cannot do that.
DEAN DIOKNO:
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the
void should be filled by Congress. Could not be.

JUSTICE PERALTA: JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One The only remedy is to go to Congress...
Hundred Thousand (₱100,000.00) Pesos ...
DEAN DIOKNO:
DEAN DIOKNO:
Yes, Your Honor.
Well, my presen ... (interrupted)
JUSTICE PERALTA:
JUSTICE PERALTA:
... and determine the value or the amount.
For every One Hundred Thousand (₱100,000.00) Pesos in excess
of Twenty-Two Thousand (₱22,000.00) Pesos you were suggesting DEAN DIOKNO:
an additional penalty of one (1) year, did I get you right?

Yes, Your Honor.

DEAN DIOKNO:

JUSTICE PERALTA:
Yes, Your Honor, that is, if the court will take the route of statutory
interpretation.
That will be equivalent to the incremental penalty of one (1) year
in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
JUSTICE PERALTA:

DEAN DIOKNO:
Ah ...

Yes, Your Honor.

DEAN DIOKNO:

JUSTICE PERALTA:
If the Court will say that they can go beyond the literal wording of
the law...
The amount in excess of Twenty-Two Thousand (₱22,000.00)
Pesos.
JUSTICE PERALTA:

Thank you, Dean.

But if we de ... (interrupted)

720
DEAN DIOKNO:
Thank you.
x x x x29
Dean Diokno also contends that Article 315 of the Revised Penal
Code constitutes cruel and unusual punishment. Citing Solem v.
Helm,30 Dean Diokno avers that the United States Federal Supreme
Court has expanded the application of a similar Constitutional
provision prohibiting cruel and unusual punishment, to the duration
of the penalty, and not just its form. The court therein ruled that
three things must be done to decide whether a sentence is
proportional to a specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the penalty; (2)
Compare the sentences imposed on other criminals in the same
jurisdiction, i.e., whether more serious crimes are subject to the
same penalty or to less serious penalties; and (3) Compare the
sentences imposed for commission of the same crime in other
jurisdictions.
However, the case of Solem v. Helm cannot be applied in the
present case, because in Solem what respondent therein deemed
cruel was the penalty imposed by the state court of South Dakota
after it took into account the latter’s recidivist statute and not the
original penalty for uttering a "no account" check. Normally, the
maximum punishment for the crime would have been five years
imprisonment and a $5,000.00 fine. Nonetheless, respondent was
sentenced to life imprisonment without the possibility of parole
under South Dakota’s recidivist statute because of his six prior
felony convictions. Surely, the factual antecedents of Solem are
different from the present controversy.
With respect to the crime of Qualified Theft, however, it is true that
the imposable penalty for the offense is high. Nevertheless, the
rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper
will essentially gravely abuse the trust and confidence reposed
upon her by her employer. After accepting and allowing the helper
to be a member of the household, thus entrusting upon such person
the protection and safekeeping of the employer’s loved ones and
properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the crime
and which, by adopting the proposal, may create serious
implications. For example, in the crime of Malversation, the penalty
imposed depends on the amount of the money malversed by the
public official, thus:
Art. 217. Malversation of public funds or property; Presumption of
malversation. — Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall
consent, through abandonment or negligence, shall permit any
other person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its minimum and
medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to
reclusion temporal in its minimum period, if the amount
721
involved is more than six thousand pesos but is less than
twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by
any duly authorized officer, shall be prima facie evidence that he
has put such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the offender.
Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and
the penalty is prision correccional in its medium and maximum
periods (2 years 4 months and 1 day to 6 years). The penalty may
not be commensurate to the act of embezzlement of ₱20,000.00
compared to the acts committed by public officials punishable by a
special law, i.e., Republic Act No. 3019 or the Anti-Graft and
Corrupt Practices Act, specifically Section 3,31 wherein the injury
caused to the government is not generally defined by any monetary
amount, the penalty (6 years and 1 month to 15 years)32 under the
Anti-Graft Law will now become higher. This should not be the case,
because in the crime of malversation, the public official takes
advantage of his public position to embezzle the fund or property
of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force
upon things (inhabited or uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are the bases of the
penalty imposable, and also, in Malicious Mischief, where the
penalty of imprisonment or fine is dependent on the cost of the
damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we
increase the value of the thing unlawfully taken, as proposed in the
ponencia, the sole basis of the penalty will now be the value of the
thing unlawfully taken and no longer the element of force employed
in entering the premises. It may likewise cause an inequity between
the crime of Qualified Trespass to Dwelling under Article 280, and
this kind of robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4
months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the
premises is with violence or intimidation, which is the main
justification of the penalty. Whereas in the crime of Robbery with
force upon things, it is punished with a penalty of prision mayor (6
years and 1 day to 12 years) if the intruder is unarmed without the
penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium
and maximum periods (2 months and 1 day to 6 months) if the
value of the damage caused exceeds ₱1,000.00, but under the
proposal, the value of the damage will now become ₱100,000.00
(1:100), and still punishable by arresto mayor (1 month and 1 day
to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less
than the value of the damage caused and not more than ₱200.00,
if the amount involved does not exceed ₱200.00 or cannot be
estimated. Under the proposal, ₱200.00 will now become
₱20,000.00, which simply means that the fine of ₱200.00 under the
existing law will now become ₱20,000.00. The amount of Fine under
this situation will now become excessive and afflictive in nature
despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC.33 Unless
we also amend Article 26 of the RPC, there will be grave
implications on the penalty of Fine, but changing the same through
Court decision, either expressly or impliedly, may not be legally and
constitutionally feasible.
There are other crimes against property and swindling in the RPC
that may also be affected by the proposal, such as those that
impose imprisonment and/or Fine as a penalty based on the value
of the damage caused, to wit: Article 311 (Theft of the property of
the National Library and National Museum), Article 312 (Occupation
of real property or usurpation of real rights in property), Article 313
(Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and
Article 331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be
affected, such as: Article 213 (Frauds against the public treasury
and similar offenses), Article 215 (Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer),
Article 218 (Failure of accountable officer to render accounts),
Article 219 (Failure of a responsible public officer to render accounts
before leaving the country).
In addition, the proposal will not only affect crimes under the RPC.
It will also affect crimes which are punishable by special penal laws,
such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34The law treats cutting, gathering,
collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with
the penalties imposed under Articles 309 and 31036 of the Revised
Penal Code, which means that the penalty imposable for the offense
is, again, based on the value of the timber or forest products
involved in the offense. Now, if we accept the said proposal in the
crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the
penalty is dependent on Articles 309 and 310 of the RPC? The
answer is in the negative because the soundness of this particular
law is not in question.
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these
laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some
provisions of the law that should be amended; nevertheless, this
Court is in no position to conclude as to the intentions of the
framers of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such
is not within the competence of the Court but of the Legislature
which is empowered to conduct public hearings on the matter,
consult legal luminaries and who, after due proceedings, can decide
whether or not to amend or to revise the questioned law or other
laws, or even create a new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to
amend the Revised Penal Code. During the oral arguments, counsel
for the Senate informed the Court that at present, fifty-six (56) bills
are now pending in the Senate seeking to amend the Revised Penal
Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political,
socio-economic, and cultural settings were far different from
today’s conditions.
Verily, the primordial duty of the Court is merely to apply the law
in such a way that it shall not usurp legislative powers by judicial
legislation and that in the course of such application or
construction, it should not make or supervise legislation, or under
the guise of interpretation, modify, revise, amend, distort, remodel,
or rewrite the law, or give the law a construction which is repugnant
722
to its terms.38 The Court should apply the law in a manner that
would give effect to their letter and spirit, especially when the law
is clear as to its intent and purpose. Succinctly put, the Court should
shy away from encroaching upon the primary function of a co-equal
branch of the Government; otherwise, this would lead to an
inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a
penalty or a Fine; hence, it can be increased by the Court when
appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though
there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the
time of his death;
(2) If the deceased was obliged to give support according
to the provisions of Article 291, the recipient who is not
an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support
from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by the
court;
(3) The spouse, legitimate and illegitimate descendants
and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the
deceased.
In our jurisdiction, civil indemnity is awarded to the offended party
as a kind of monetary restitution or compensation to the victim for
the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil
indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is
also ordered to pay the victim a sum of money as restitution.
Clearly, this award of civil indemnity due to the death of the victim
could not be contemplated as akin to the value of a thing that is
unlawfully taken which is the basis in the imposition of the proper
penalty in certain crimes. Thus, the reasoning in increasing the
value of civil indemnity awarded in some offense cannot be the
same reasoning that would sustain the adoption of the suggested
ratio. Also, it is apparent from Article 2206 that the law only
imposes a minimum amount for awards of civil indemnity, which is
₱3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the
amount awarded as civil indemnity can be validly modified and
increased when the present circumstance warrants it. Corollarily,
moral damages under Article 222039 of the Civil Code also does not
fix the amount of damages that can be awarded. It is discretionary
upon the court, depending on the mental anguish or the suffering
of the private offended party. The amount of moral damages can,
in relation to civil indemnity, be adjusted so long as it does not
exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the
offense committed as tantamount to cruel punishment. However,
all penalties are generally harsh, being punitive in nature. Whether
or not they are excessive or amount to cruel punishment is a matter
that should be left to lawmakers. It is the prerogative of the courts
to apply the law, especially when they are clear and not subject to
any other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio
Carpio’s opinions is that the incremental penalty provision should
be declared unconstitutional and that the courts should only impose xxxx
the penalty corresponding to the amount of ₱22,000.00, regardless
if the actual amount involved exceeds ₱22,000.00. As suggested,
JUSTICE PERALTA:
however, from now until the law is properly amended by Congress,
all crimes of Estafa will no longer be punished by the appropriate
penalty. A conundrum in the regular course of criminal justice Yeah, Just one question. You are suggesting that in order to
would occur when every accused convicted of the crime of estafa determine the value of Peso you have to take into consideration
will be meted penalties different from the proper penalty that several factors.
should be imposed. Such drastic twist in the application of the law
has no legal basis and directly runs counter to what the law
provides. PROFESSOR TADIAR:

It should be noted that the death penalty was reintroduced in the Yes.
dispensation of criminal justice by the Ramos Administration by
virtue of Republic Act No. 765940 in December 1993. The said law JUSTICE PERALTA:
has been questioned before this Court. There is, arguably, no
punishment more cruel than that of death. Yet still, from the time
the death penalty was re-imposed until its lifting in June 2006 by Per capita income.
Republic Act No. 9346,41 the Court did not impede the imposition
of the death penalty on the ground that it is a "cruel punishment" PROFESSOR TADIAR:
within the purview of Section 19 (1),42 Article III of the
Constitution. Ultimately, it was through an act of Congress
suspending the imposition of the death penalty that led to its non- Per capita income.
imposition and not via the intervention of the Court.
JUSTICE PERALTA:
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the proper Consumer price index.
penalty emanates unconstitutional in the present action. Not only
is it violative of due process, considering that the State and the
concerned parties were not given the opportunity to comment on PROFESSOR TADIAR:
the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues Yeah.
must be pleaded directly and not collaterally,43 more so in the
present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code. JUSTICE PERALTA:

Besides, it has long been held that the prohibition of cruel and Inflation ...
unusual punishments is generally aimed at the form or character of
the punishment rather than its severity in respect of duration or
PROFESSOR TADIAR:
amount, and applies to punishments which public sentiment has
regarded as cruel or obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on Yes.
the wheel, disemboweling, and the like. Fine and imprisonment
would not thus be within the prohibition.44
JUSTICE PERALTA:

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

... and so on. Is the Supreme Court equipped to determine those
proportion, or severe for a penalty to be obnoxious to the
factors?
Constitution. The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual. Expressed in
other terms, it has been held that to come under the ban, the PROFESSOR TADIAR:
punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral
There are many ways by which the value of the Philippine Peso can
sense of the community."45
be determined utilizing all of those economic terms.

Cruel as it may be, as discussed above, it is for the Congress to

JUSTICE PERALTA:
amend the law and adapt it to our modern time.

Yeah, but ...

The solution to the present controversy could not be solved by
merely adjusting the questioned monetary values to the present
value of money based only on the current inflation rate. There are PROFESSOR TADIAR:
other factors and variables that need to be taken into consideration,
researched, and deliberated upon before the said values could be
accurately and properly adjusted. The effects on the society, the And I don’t think it is within the power of the Supreme Court to
injured party, the accused, its socio-economic impact, and the likes pass upon and peg the value to One Hundred (₱100.00) Pesos to
must be painstakingly evaluated and weighed upon in order to ...
arrive at a wholistic change that all of us believe should be made
to our existing law. Dejectedly, the Court is ill-equipped, has no JUSTICE PERALTA:
resources, and lacks sufficient personnel to conduct public hearings
and sponsor studies and surveys to validly effect these changes in
our Revised Penal Code. This function clearly and appropriately Yeah.
belongs to Congress. Even Professor Tadiar concedes to this
conclusion, to wit: PROFESSOR TADIAR:

723
... One (₱1.00.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
PROFESSOR TADIAR:
That is my position that the Supreme Court ...
JUSTICE PERALTA:
Yeah, okay.
PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order
to adjust, to make the adjustment that is a power that belongs to
the legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A.
Sereno echoes the view that the role of the Court is not merely to
dispense justice, but also the active duty to prevent injustice. Thus,
in order to prevent injustice in the present controversy, the Court
should not impose an obsolete penalty pegged eighty three years
ago, but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in the past
taken into consideration "changed conditions" or "significant
changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not
delving into the validity of the substance of a statute. The issue is
no different from the Court’s adjustment of indemnity in crimes
against persons, which the Court had previously adjusted in light of
current times, like in the case of People v. Pantoja.47 Besides,
Article 10 of the Civil Code mandates a presumption that the
lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the
Chief Justice and my Colleagues, all the proposals ultimately lead
to prohibited judicial legislation. Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the
Court to legislate laws, such immense power belongs to Congress
and the Court should refrain from crossing this clear-cut divide.
With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of
monetary restitution. It is truly based on the value of money. The
same cannot be said on penalties because, as earlier stated,
penalties are not only based on the value of money, but on several
other factors. Further, since the law is silent as to the maximum
amount that can be awarded and only pegged the minimum sum,
increasing the amount granted as civil indemnity is not proscribed.
Thus, it can be adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the
CA modified the ruling of the RTC. The RTC imposed the
indeterminate penalty of four (4) years and two (2) months of
prision correccional in its medium period, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal in its
minimum period, as maximum. However, the CA imposed the
724
indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional
₱10,000.00, or a total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling
in Cosme, Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised
Penal Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum period to
prision mayor in its minimum period, if the amount of the fraud is
over 12,000 but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall
be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such case, and in
connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty
shall be termed prision mayor or reclusion temporal, as the case
may be.
The penalty prescribed by Article 315 is composed of only two, not
three, periods, in which case, Article 65 of the same Code requires
the division of the time included in the penalty into three equal
portions of time included in the penalty prescribed, forming one
period of each of the three portions. Applying the latter provisions,
the maximum, medium and minimum periods of the penalty
prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10
days49
To compute the maximum period of the prescribed penalty, prisión
correccional maximum to prisión mayor minimum should be divided
into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 6550 of the
RPC.51 In the present case, the amount involved is ₱98,000.00,
which exceeds ₱22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor. Article 315 also states that a
period of one year shall be added to the penalty for every additional
₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.
Considering that the amount of ₱98,000.00 is ₱76,000.00 more
than the ₱22,000.00 ceiling set by law, then, adding one year for
each additional ₱10,000.00, the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor minimum would
be increased by 7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7 years, the maximum
of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty
prescribed by law for the estafa charge against petitioner is prision
correccional maximum to prision mayor minimum, the penalty next
lower would then be prision correccional in its minimum and
medium periods.
Thus, the minimum term of the indeterminate sentence should be
anywhere from 6 months and 1 day to 4 years and 2 months.
One final note, the Court should give Congress a chance to perform
its primordial duty of lawmaking. The Court should not pre-empt
Congress and usurp its inherent powers of making and enacting
laws. While it may be the most expeditious approach, a short cut
by judicial fiat is a dangerous proposition, lest the Court dare
trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November

5, 2007 of petitioner Lito Corpuz is hereby DENIED. Consequently,
the Decision dated March 22, 2007 and Resolution dated
September 5, 2007 of the Court of Appeals, which affirmed with
modification the Decision dated July 30, 2004 of the Regional Trial
Court, Branch 46, San Fernando City, finding petitioner guilty
beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMED with MODIFICATION that the penalty imposed is
the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional,
as minimum, to FIFTEEN (15) YEARS of reclusion temporal as
maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this

Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the

Senate and the Speaker of the House of Representatives.

SO ORDERED.

725
[G.R. Nos. 137953-58. April 11, 2002]
PEOPLE OF THE PHILIPPINES, appellant,
vs.
WILFREDO DELA TORRE, appellee.
DECISION
PANGANIBAN, J.:
The prosecution cannot appeal a decision in a criminal case
whether to reverse an acquittal or to increase the penalty imposed
in a conviction.
The Case
The prosecution appeals the March 31, 1998 Decision[1] and
June 3, 1998 Order[2] issued by the Regional Trial Court (RTC) of
Iba, Zambales (Branch 69)[3]in Criminal Cases Nos. 2179-I, 2180-
I, 2181-I, 2182-I, 2183-I and 2184-I. The assailed Decision
convicted Wilfredo Dela Torre of two counts of acts of lasciviousness
and four counts of rape, while the challenged Order denied the
Motion for Reconsideration filed by plaintiff (now appellant).
The dispositive portion of the Decision is reproduced
hereunder:
WHEREFORE, premises considered, accused Wilfredo dela Torre is
found GUILTY beyond reasonable doubt as follows:
1) In Crim. Case No. RTC 2179-I of the crime of Acts of
Lasciviousness, defined and penalized under Article 336 of the
Revised Penal Code, is sentenced to suffer an imprisonment
of six (6) months and one (1) day to two (2) years of prision
correccional, and to indemnify Mary Rose dela Torre in the
amount of P10,000.00 as and by way of civil damages.
2) In Crim. Case No. RTC 2180-I of the crime of Acts of
Lasciviousness, defined and penalized under Article 336 of the
Revised Penal Code, is sentenced to suffer an imprisonment
of six (6) months and one (1) day to two (2) years of prision
correccional, and to indemnify Mary Rose dela Torre in the
amount of P10,000.00 as and by way of civil damages.
3) In Crim. Case No. RTC 2181-I of the crime of Rape, defined
and penalized under Article 335 of the Revised Penal Code, is
sentenced to suffer the penalty of reclusion perpetua, and to
indemnify Mary Rose dela Torre in the amount of P50,000.00
as and by way of civil damages.
4) In Crim. Case No. RTC 2182-I of the crime of Rape, defined
and penalized under Article 335 of the Revised Penal Code, is
sentenced to suffer the penalty of reclusion perpetua, and to
indemnify Mary Rose dela Torre in the amount of P50,000.00
as and by way of civil damages.
5) In Crim. Case No. RTC 2183-I of the crime of Rape, defined
and penalized under Article 335 of the Revised Penal Code, is
sentenced to suffer the penalty of reclusion perpetua, and to
indemnify Mary Rose dela Torre in the amount of P50,000.00
as and by way of civil damages.
6) In Crim. Case No. RTC 2184-I of the crime of Rape, defined
and penalized under Article 335 of the Revised Penal Code, is
sentenced to suffer the penalty of reclusion perpetua, and to
indemnify Mary Rose dela Torre in the amount of P50,000.00
as and by way of civil damages.[4]
The two Amended Informations for acts of lasciviousness,
dated July 1, 1997, were similarly worded as follows:
That on or about the 30th day of September, 1996 at Brgy.
Guisguis, municipality of Sta. Cruz, Province of Zambales,
Philippines, and within the jurisdiction of this Honorable Court, the
said accused, being the father of one Mary Rose de la Torre,
actuated by lust and by means of coercion, threats, intimidation
726
and other consideration, did then and there wilfully, unlawfully and
feloniously commit acts of lasciviousness on the person of Mary
Rose de la Torre, a minor of 11 years old, to the damage and
prejudice of the said Mary Rose de la Torre.[5]
The other Information[6] charged appellee with the same crime
against the same victim on a different date, October 10, 1996.
On the other hand, the four Informations charging him with
rape, dated July 1, 1997, similarly read as follows:
That on or about the 18th day of October, 1996 at Brgy. Guisguis,
municipality of Sta. Cruz, Province of Zambales, Philippine[s], and
within the jurisdiction of this Honorable Court, the said accused,
being the father of one Mary Rose de la Torre, with lewd design by
means of coercion, threats, intimidation and other consideration,
did then and there wilfully, unlawfully and feloniously, have carnal
knowledge with one Mary Rose de la Torre, a minor of 11 years old,
without her consent and against her will, to the damage and
prejudice of the latter.[7]
The three other Amended Informations recited the same
allegations on different dates: November 1,[8] November 12[9] and
December 23,[10] 1996. When arraigned on August 13, 1997,
appellee pleaded[11] not guilty[12] to all six (6) Informations. After
trial in due course, the RTC rendered the challenged Decision.
Appellee did not appeal, but the prosecution filed a Notice of
Appeal[13] dated June 9, 1998.
The Facts
Appellants Version
In its Brief,[14] the Office of the Solicitor General (OSG)
presents the prosecutions version of the facts as follows:
Appellee Wilfredo dela Torre had a common-law relationship with
Melinda dela Torre. The latter gave birth to three children, Mary
Rose, Mark Anthony, and Mark Domil. When Mary Rose was about
seven (7) years old, her mother left the conjugal abode with Mark
Domil, leaving her and sibling Mark Anthony in the care of appellee,
who resided with his progeny in a one-room hut in Sitio Pao, Guis-
guis, Sta. Cruz, Zambales.
Mary Rose and her brother Mark Anthony studied at the Guinabon
Elementary School. She was the brightest in her class, even though
because of their poverty, she had to walk from their hut to the
school everyday.
In January of 1997, Felita Sobrevilla, noticed a sudden change in
the behavior and performance of Mary Rose, who was twelve-
year[s] old at th[at] time. The latter appeared sleepy, hungry and
snobbish. She also urinated on her panty. When confronted by
Generosa Mayo, the head teacher, Mary Rose admitted to her that
she was abused repeatedly by appellee. Mayo informed Elpidia
Balindo, the aunt of Mary Rose, about the abuses. They then
decided to refer the matter to the Department of Social Welfare and
Development (DSWD), who took Mary Rose under its custody.
It turned out that on September 30, 1996, Mary Rose was about to
sleep when appellee told her, anak puwede ba nating subukan? She
did not understand what that meant and continued to
sleep. Appellee then placed himself on top of Mary Rose. After
removing her shorts as well as his shorts, he poked his penis into
her organ. He also kissed and embraced Mary Rose, who just
wept. The same incident was repeated in the evening of October
10, 1996.
In the evening of October 18, 1996, appellee was able to insert his
penis into the vagina of Mary Rose. After the act, her whole body
ached. She started to fear appellee. He also had sexual intercourse
with his minor daughter on three more occasions, that is, on
November 1 and 12 and December 23, 1996.
A medical examination conducted by Dr. Milagrina Mayor, Rural
Health Physician of Sta. Cruz, Zambales, on Mary Rose revealed
that her vagina admitted one finger with ease. She was no longer
a virgin. Her hymen was broken with healed lacerations at the 3:00,
6:00 and 9:00 nine oclock positions. The girl also suffered from
urinary tract infection.[15] (Citations omitted)
Appellees Version
On the other hand, appellees statement of facts,[16] as
contained in his Brief,[17] is reproduced as follows:
Appellee WILFREDO DELA TORRE had three (3) children with
Melinda Torre, namely: Mary Rose, Mark Anthony and Mark
Ronnil. Melinda left her family when Mary Rose was about seven
(7) years old bringing with her Mark Ronnil.The victim lived with
her father and brother Mark Anthony in Sta. Cruz, Zambales.
Felina Sobrevilla, teacher of Mary Rose, noticed sudden changes in
her behavior and when confronted, the latter admitted that she was
sexually abused by her father. Her head teacher informed her Aunt
Elpidia Balindo about the sexual abuses. They referred the case to
the DSWD who took her under its custody.
Mary Rose testified that her father committed sexual abuses on her
on the following dates: September 30, 1996, October 10, 1996,
October 18, 1996, November 01, 1996, November 12, 1996 and
December 23, 1996.
Appellee, on the other hand denies vehemently the charges being
imputed on him by her daughter and said that the only reason he
can think of why the daughter filed the charges is because he did
not allow her to stay with her teacher, Mrs. Sobrevilla.[18] (Citations
omitted)
Ruling of the Trial Court
The RTC ruled that it was duly established that accused
Wilfredo committed acts of lasciviousness against Mary Rose on 30
September 1996 and 10 October 1996, and had carnal knowledge
[of] Mary Rose on 18 October 1996, 01 November 1996, 12
November 1996 and 23 December 1996.[19] Further, the trial court
added that the moral ascendancy of appellee over the victim was
equivalent to intimidation. It did not give any probative value to his
uncorroborated and unsubstantiated defenses of denial and alibi.
However, the court a quo refused to impose the supreme
penalty of death on appellee. It maintained that there were
circumstances that mitigated the gravity of the offenses, as follows:
1. As testified to (supra) there was absence of any actual, physical
violence or intimidation in the commission of the acts complained
of.
xxxxxxxxx
2. The abandonement by Melinda (common-law wife of accused
Wilfredo and mother of Mary Rose) when Mary Rose was seven (7)
years old leaving behind Wilfredo, Mary Rose and her brother, Mark
Anthony.
3. The extreme poverty on the life of Wilfredo, Mary Rose and Mark
Anthony.
4. After the mother of Mary Rose left the conjugal home, for more
than five (5) years, Wilfredo, Mary Rose and Mark Anthony were
727
living together as a family and Mary Rose was never molested by
her father.
5. There is reason to deprive Wilfredo of the love of her daughter
Mary Rose but there is no reason to deprive Mark Anthony of the
love of his father considering that both Mary Rose and Mark
Anthony have no one to call as a mother.[20]
Hence, this appeal.[21]
The Issue
In this appeal, the solicitor general assigns this single error
for our consideration:
The Court a quo erred in penalizing appellee with reclusion perpetua
in each of the four indictments for rape, instead of imposing the
supreme penalty of death as mandated by R.A. No. 7659.[22]
The Courts Ruling
The appeal has no merit.
Lone Issue:
Propriety of Appeal by the Prosecution
The prosecution asks this Court to modify the RTC Decision
by imposing the supreme penalty of death on the accused. It
argues that it has proven that the victim is the daughter of the
accused, and that she was below eighteen (18) years old when the
rapes took place. As a consequence, the trial court should have
imposed the penalty of death pursuant to Section 11 of RA 7659.[23]
Under Section 1, Rule 122 of the 2000 Rules of Criminal
Procedure, any party may appeal from a judgment or final order,
unless the accused will be placed in double jeopardy. This provision
is substantially the same as that provided by the 1985 Rules.
The question now is whether an increase in the penalty
imposed by the lower court will violate the right of the accused
against double jeopardy.
In several cases, this Court has already definitively ruled on
this issue.Recently, in People v. Leones,[24] it unmistakably
declared that [w]hile it is true that this Court is the Court of last
resort, there are allegations of error committed by a lower court
which we ought not to look into to uphold the right of the
accused.Such is the case in an appeal by the prosecution seeking
to increase the penalty imposed upon the accused for this runs
afoul of the right of the accused against double jeopardy.[25] It
added:
This Court has not just once ruled that where the accused after
conviction by the trial court did not appeal his conviction, an appeal
by the government seeking to increase the penalty imposed by the
trial court places the accused in double jeopardy and should
therefore be dismissed.[26]
This doctrine was applied as early as 1904 in Kepner v. United
States[27](hereinafter Kepner), as follows:
The Court of First Instance, having jurisdiction to try the question
of the guilt or innocence of the accused, found Kepner not guilty;
to try him again upon the merits, even in an appellate court, is to
put him a second time in jeopardy for the same offense.[28]
The Kepner doctrine was clarified in a 1987 case.[29] Speaking
through Justice Isagani A. Cruz, the Court explained that an appeal
of the prosecution from a judgment of acquittal (or for the purpose
of increasing the penalty imposed upon the convict) would place
him in double jeopardy.[30]
 Double jeopardy provides three related protections: (1)
against a second prosecution for the same offense after acquittal,
(2) against a second prosecution for the same offense after
conviction, and (3) against multiple punishments for the same
offense.[31]

Although Kepner technically involved only a single

proceeding, the Court regarded the practice as equivalent to two
separate trials, and the evil that the Court saw in the procedure
was plainly that of multiple prosecution.[32]

The ban on double jeopardy is deeply rooted in

jurisprudence. The doctrine has several avowed
purposes. Primarily, it prevents the State from using its criminal
processes as an instrument of harassment to wear out the accused
by a multitude of cases with accumulated trials.[33] It also serves
the additional purpose of precluding the State, following an
acquittal, from successively retrying the defendant in the hope of
securing a conviction.[34] And finally, it prevents the State, following
conviction, from retrying the defendant again in the hope of
securing a greater penalty.[35]

Being violative of the right against double jeopardy, the

instant appeal filed by the prosecution cannot prosper. The rule is
clear -- the prosecution cannot appeal on the ground that the
accused should have been given a more severe penalty.[36]

Besides, even assuming that the penalties imposed by the

RTC were erroneous, these cannot be corrected by this Court on an
appeal by the prosecution. Said the Court:

Whatever error may have been committed by the lower court was
merely an error of judgment and not of jurisdiction. It did not affect
the intrinsic validity of the decision. This is the kind of error that
can no longer be rectified on appeal by the prosecution no matter
how obvious the error may be.[37]

The only way to nullify an acquittal or to increase the penalty

is through a proper petition for certiorari to show grave abuse of
discretion. This was explained in People v. CA and Maquiling[38] as
follows:

While certiorari may be used to correct an abusive acquittal, the

petitioner in such extraordinary proceeding must clearly
demonstrate that the lower court blatantly abused its authority to
a point so grave as to deprive it of its very power to dispense
justice. On the other hand, if the petition, regardless of its
nomenclature, merely calls for an ordinary review of the findings of
the court a quo, the constitutional right against double jeopardy
would be violated. Such recourse is tantamount to converting the
petition for certiorari into an appeal, contrary to the express
injunction of the Constitution, the Rules of Court and prevailing
jurisprudence on double jeopardy.[39]

WHEREFORE, the appeal is hereby DENIED. No pronouncement as

to costs.

SO ORDERED.

728
G.R. No. L-32485 October 22, 1970 From the aforesaid definition as well as classification of ex post
facto laws, the constitutional inhibition refers only to criminal laws
IN THE MATTER OF THE PETITION FOR THE DECLARATION which are given retroactive effect.4
OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8
OF R.A. No. 6132.
While it is true that Sec. 18 penalizes a violation of any provision
KAY VILLEGAS KAMI, INC., petitioner.
of R.A. No. 6132 including Sec. 8(a) thereof, the penalty is imposed
only for acts committed after the approval of the law and not those
MAKASIAR, J.: perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof,
shall apply to acts carried out prior to its approval. On the contrary,
This petition for declaratory relief was filed by Kay Villegas Kami,
See. 23 directs that the entire law shall be effective upon its
Inc., claiming to be a duly recognized and existing non-stock and
approval. It was approved on August 24, 1970.
non-profit corporation created under the laws of the land, and
praying for a determination of the validity of Sec. 8 of R.A. No. 6132
and a declaration of petitioner's rights and duties thereunder. In WHEREFORE, the prayer of the petition is hereby denied and
paragraph 7 of its petition, petitioner avers that it has printed paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not unconstitutional.
materials designed to propagate its ideology and program of Without costs.
government, which materials include Annex B; and that in
paragraph 11 of said petition, petitioner intends to pursue its
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
purposes by supporting delegates to the Constitutional Convention
who will propagate its ideology.

Petitioner, in paragraph 7 of its petition, actually impugns because

it quoted, only the first paragraph of Sec. 8(a) on the ground that
it violates the due process clause, right of association, and freedom
of expression and that it is an ex post facto law.

The first three grounds were overruled by this Court when it held
that the questioned provision is a valid limitation on the due
process, freedom of expression, freedom of association, freedom of
assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils,
namely, the prostitution of electoral process and denial of the equal
protection of the laws. Moreover, under the balancing-of-interests
test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates
who must be "beholden to no one but to God, country and
conscience," are interests that should be accorded primacy.1

The petitioner should therefore be accordingly guided by the

pronouncements in the cases of Imbong and Gonzales.2

The claim of petitioner that the challenged provision constitutes an

ex post facto law is likewise untenable.

An ex post facto law is one which:.

(1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;

(2) aggravates a crime, or makes it greater than it was, when

committed;

(3) changes the punishment and inflicts a greater punishment than

the law annexed to the crime when committed;

(4) alters the legal rules of evidence, and authorizes conviction

upon less or different testimony than the law required at the time
of the commission of the offense;

(5) assuming to regulate civil rights and remedies only, in effect

imposes penalty or deprivation of a right for something which when
done was lawful; and

(6) deprives a person accused of a crime of some lawful protection

to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.3

729
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court
of First Instance of Tarlac, Branch I), FELICIANO CO alias
LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-
Subversion
Act,1 which outlaws the Communist Party of the Philippines and
other "subversive associations," and punishes any person who
"knowingly, willfully and by overt acts affiliates himself with,
becomes or remains a member" of the Party or of any other similar
"subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of
the Anti-Subversion Act was filed against the respondent Feliciano
Co in the Court of First Instance of Tarlac. On March 10 Judge Jose
C. de Guzman conducted a preliminary investigation and, finding
a prima facie case against Co, directed the Government
prosecutors to file the corresponding information. The twice-
amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the
Municipality of Capas, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or
ranking leader of the Communist Party of the Philippines,
an outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence,
deceit, subversion, or any other illegal means for the
purpose of establishing in the Philippines a totalitarian
regime and placing the government under the control and
domination of an alien power, by being an instructor in the
Mao Tse Tung University, the training school of recruits of
the New People's Army, the military arm of the said
Communist Party of the Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or
with insult to public authorities;
(b) That the crime was committed by a band; and afford
impunity.
(c) With the aid of armed men or persons who insure or
afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is
a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed
with the same court, sharing the respondent Nilo Tayag and five
others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State
Prosecutors duly designated by the Secretary of Justice to
collaborate with the Provincial Fiscal of Tarlac, pursuant to
the Order dated June 5, above entitled case, hereby accuse
Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA,
730
MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still
unknown, for violation of REPUBLIC ACT No. 1700,
otherwise known as the Anti-Subversion Law, committed as
follows:
That in or about March 1969 and for sometime prior thereto
and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the
Philippines, the above-named accused knowingly, willfully
and by overt acts organized, joined and/or remained as
offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and
COMMANDER MELODY, in addition thereto, knowingly,
willfully and by over acts joined and/or remained as a
member and became an officer and/or ranking leader not
only of the Communist Party of the Philippines but also of
the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named
accused, as such officers and/or ranking leaders of the
aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then
and there knowingly, willfully and feloniously commit
subversive and/or seditious acts, by inciting, instigating and
stirring the people to unite and rise publicly and
tumultuously and take up arms against the government,
and/or engage in rebellious conspiracies and riots to
overthrow the government of the Republic of the Philippines
by force, violence, deceit, subversion and/or other illegal
means among which are the following:
1. On several occasions within the province of Tarlac, the
accused conducted meetings and/or seminars wherein the
said accused delivered speeches instigating and inciting the
people to unite, rise in arms and overthrow the Government
of the Republic of the Philippines, by force, violence, deceit,
subversion and/or other illegal means; and toward this end,
the said accused organized, among others a chapter of the
KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac
for the avowed purpose of undertaking or promoting an
armed revolution, subversive and/or seditious propaganda,
conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of
the Philippines and to established in the Philippines a
Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA,
together with FRANCISCO PORTEM alias KIKO Gonzales and
others, pursued the above subversive and/or seditious
activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the
people to organize and unite for the purpose of
overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion
and/or other illegal means, and establishing in the
Philippines a Communist Government.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons
to insure or afford impunity; and (b) craft, fraud, or disguise
was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of
the statute on the grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its
resolution of September 15, 1970, declared the statute void on the
grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two
accused. The Government appealed. We resolved to treat its appeal
as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex port facto law shall be enacted."2 A bill of attainder
is a legislative act which inflicts punishment without trial.3 Its
essence is the substitution of a legislative for a judicial
determination of guilt.4 The constitutional ban against bills of
attainder serves to implement the principle of separation of
powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the
judicial function.7 History in perspective, bills of attainder were
employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional
prohibition is directed. The singling out of a definite class, the
imposition of a burden on it, and a legislative intent, suffice to
stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the
court a quo as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present
and grave danger to the security of the Philippines.'" By means of
the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt
of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and
voluntary member, the law is still a bill of attainder because it has
expressly created a presumption of organizational guilt which the
accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that
it does not specify the Communist Party of the Philippines or the
members thereof for the purpose of punishment. What it does is
simply to declare the Party to be an organized conspiracy for the
overthrow of the Government for the purposes of the prohibition,
stated in section 4, against membership in the outlawed
organization. The term "Communist Party of the Philippines" issued
solely for definitional purposes. In fact the Act applies not only to
the Communist Party of the Philippines but also to "any other
organization having the same purpose and their successors." Its
focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of
1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of
attainder and therefore unconstitutional. Section 504 provided in
its pertinent parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board
or similar governing body, business agent, manager, organizer, or
other employee (other than as an employee performing exclusively
clerical or custodial duties) of any labor organization.
during or for five years after the termination of his membership in
the Communist Party....
(b) Any person who willfully violates this section shall be fined not
more than $10,000 or imprisoned for not more than one year, or
both.
This statute specified the Communist Party, and imposes disability
and penalties on its members. Membership in the Party, without
more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill
731
of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of
such positions to bring about political strikes. In section 504,
however, Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally applicable
rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which, in
Congress' view, make them likely to initiate political strikes) shall
not hold union office, and leaves to courts and juries the job of
deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no
uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without
incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1,
6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That
case involved an appeal from an order by the Control Board
ordering the Communist Party to register as a "Communist-action
organization," under the Subversive Activities Control Act of 1950,
64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of
"Communist-action organization" which the Board is to apply is set
forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or
foreign organization controlling the world Communist movement
referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64
Stat 989, 50 USC sec. 782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a
bill of attainder, reasoning that sec. 3 does not specify the persons
or groups upon which the deprivations setforth in the Act are to be
imposed, but instead sets forth a general definition. Although the
Board has determined in 1953 that the Communist Party was a
"Communist-action organization," the Court found the statutory
definition not to be so narrow as to insure that the Party would
always come within it:
In this proceeding the Board had found, and the Court of Appeals
has sustained its conclusion, that the Communist Party, by virtud
of the activities in which it now engages, comes within the terms of
the Act. If the Party should at anytime choose to abandon these
activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at
683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be
totally unnecessary to charge Communists in court, as the law
alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially
established. The Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and by overt acts, and
that they joined the Party, knowing its subversive character and
with specific intent to further its basic objective, i.e., to overthrow
the existing Government by force deceit, and other illegal means
and place the country under the control and domination of a foreign
power.
As to the claim that under the statute organizationl guilt is
nonetheless imputed despite the requirement of proof of knowing
membership in the Party, suffice it to say that is precisely the
nature of conspiracy, which has been referred to as a "dragneet
device" whereby all who participate in the criminal covenant are
liable. The contention would be correct if the statute were construed
as punishing mere membership devoid of any specific intent to
further the unlawful goals of the Party. 13 But the statute
specifically required that membership must be knowing or active,
with specific intent to further the illegal objectives of the Party. That
is what section 4 means when it requires that membership, to be
unlawful, must be shown to have been acquired "knowingly,
willfully and by overt acts." 14 The ingredient of specific intent to
pursue the unlawful goals of the Party must be shown by "overt
acts." 15 This constitutes an element of "membership" distinct from
the ingredient of guilty knowledge. The former requires proof of
direct participation in the organization's unlawful activities, while
the latter requires proof of mere adherence to the organization's
illegal objectives.
2. Even assuming, however, that the Act specifies individuals and
not activities, this feature is not enough to render it a bill of
attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national
banks on the basis of a legislative finding that the persons
mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to
be a bill of attainder. 16 Similarly, a statute requiring every secret,
oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such
society which fails to register or remains a member thereof, was
declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial
Peace Act, 18 requiring labor unions to file with the Department of
Labor affidavits of union officers "to the effect that they are not
members of the Communist Party and that they are not members
of any organization which teaches the overthrow of the Government
by force or by any illegal or unconstitutional method," was upheld
by this Court. 19
Indeed, it is only when a statute applies either to named individuals
or to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial trial does it become a
bill of attainder. 20 It is upon this ground that statutes which
disqualified those who had taken part in the rebellion against the
Government of the United States during the Civil War from holding
office, 21 or from exercising their profession, 22 or which prohibited
the payment of further compensation to individuals named in the
Act on the basis of a finding that they had engages in subversive
activities, 23 or which made it a crime for a member of the
Communist Party to serve as an officer or employee of a labor
union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the
legislature may apply its own rules, and judicial hearing is not
needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York
legislature passed a law requiring every secret, oath-bound society
with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing
to register. While the statute did not specify the Ku Klux Klan, in its
operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux
Klan while exempting other secret, oath-bound organizations like
masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just
cited and reached the conclusion that the classification was justified
by a difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding
its purpose and membership a cloak for acts and conduct inimical
to personal rights and public welfare, and (b) in the absence of such
a tendency on the part of the other class. In pointing out this
difference one of the courts said of the Ku Klux Klan, the principal
association in the included class: "It is a matter of common
knowledge that this organization functions largely at night, its
members disguised by hoods and gowns and doing things
calculated to strike terror into the minds of the people;" and later
said of the other class: "These organizations and their purposes are
well known, many of them having been in existence for many years.
732
Many of them are oath-bound and secret. But we hear no complaint
against them regarding violation of the peace or interfering with
the rights of others." Another of the courts said: "It is a matter of
common knowledge that the association or organization of which
the relator is concededly a member exercises activities tending to
the prejudice and intimidation of sundry classes of our citizens. But
the legislation is not confined to this society;" and later said of the
other class: "Labor unions have a recognized lawful purpose. The
benevolent orders mentioned in the Benevolent Orders Law have
already received legislative scrutiny and have been granted special
privileges so that the legislature may well consider them beneficial
rather than harmful agencies." The third court, after recognizing
"the potentialities of evil in secret societies," and observing that
"the danger of certain organizations has been judicially
demonstrated," — meaning in that state, — said: "Benevolent
orders, labor unions and college fraternities have existed for many
years, and, while not immune from hostile criticism, have on the
whole justified their existence."
We assume that the legislature had before it such information as
was readily available including the published report of a hearing,
before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the
Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an
earlier time with additional features borrowed from the Know
Nothing and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant
whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the
Constitution of the United States; in another exacted of its member
an oath to shield and preserve "white supremacy;" and in still
another declared any person actively opposing its principles to be
"a dangerous ingredient in the body politic of our country and an
enemy to the weal of our national commonwealth;" that it was
conducting a crusade against Catholics, Jews, and Negroes, and
stimulating hurtful religious and race prejudices; that it was striving
for political power and assuming a sort of guardianship over the
administration of local, state and national affairs; and that at times
it was taking into its own hands the punishment of what some of
its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been
the object of continuing scrutiny by this Court. In 1932 we found
the Communist Party of the Philippines to be an illegal
association. 28 In 1969 we again found that the objective of the
Party was the "overthrow of the Philippine Government by armed
struggle and to establish in the Philippines a communist form of
government similar to that of Soviet Russia and Red China." 29 More
recently, in Lansang vs. Garcia, 30 we noted the growth of the
Communist Party of the Philippines and the organization of
Communist fronts among youth organizations such as the
Kabataang Makabayan (KM) and the emergence of the New
People's Army. After meticulously reviewing the evidence, we said:
"We entertain, therefore, no doubts about the existence of a
sizeable group of men who have publicly risen in arms to overthrow
the government and have thus been and still are engaged in
rebellion against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in
order that it may fall within the ambit of the prohibition against bills
of attainder. It is also necessary that it must apply retroactively
and reach past conduct. This requirement follows from the nature
of a bill of attainder as a legislative adjudication of guilt. As Justice
Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.'
... Therefore, if [a statute] is a bill of attainder it is also an ex post
facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme
Court upheld the validity of the Charter of the City of Los Angeles
which provided:
... [N]o person shall hold or retain or be eligible for any public office
or employment in the service of the City of Los Angeles, in any
office or department thereof, either elective or appointive, who has
within five (5) years prior to the effective date of this section
advised, advocated, or taught, or who may, after this section
becomes effective, become a member of or affiliated with any
group, society, association, organization or party which advises,
advocates or teaches or has within said period of five (5) years
advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of
California.
In upholding the statute, the Court stressed the prospective
application of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-
year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it
bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow
of the Government or who are or become affiliated with any group
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the State and
the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not
declare general and prospectively operative standards of
qualification and eligibility for public employment. Rather, by its
terms it prohibited any further payment of compensationto named
individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress
thereby assumed judicial magistracy, them it mustbe demonstrated
that the statute claimed to be a bill of attainderreaches past
conduct and that the penalties it imposesare inescapable. As the
U.S. Supreme Court observedwith respect to the U.S. Federal
Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the
fact that the conduct which it regulates is describedwith such
particularity that, in probability, few organizationswill come within
the statutory terms. Legislatures may act tocurb behaviour which
they regard as harmful to the public welfare,whether that conduct
is found to be engaged in by manypersons or by one. So long as
the incidence of legislation issuch that the persons who engage in
the regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there
can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-
Subversion Act. Section 4 thereof expressly statesthat the
prohibition therein applies only to acts committed"After the
approval of this Act." Only those who "knowingly,willfully and by
overt acts affiliate themselves with,become or remain members of
the Communist Party of thePhilippines and/or its successors or of
any subversive association"after June 20, 1957, are punished.
Those whowere members of the Party or of any other subversive
associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in
writing and under oath their membershipin the Party. The law
expressly provides that such renunciationshall operate to exempt
such persons from penalliability. 34 The penalties prescribed by the
Act are thereforenot inescapable.
733
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the
Act that the Communist Party of the Philippinesis an organized
conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of
the Party butrather to justify the proscription spelled out in section
4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional
values. 35 Accordingly, any limitation on their exercise mustbe
justified by the existence of a substantive evil. This isthe reason
why before enacting the statute in question Congressconducted
careful investigations and then stated itsfindings in the preamble,
thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for
the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty
of the Philippines constitutes a clear, present andgrave danger to
the security of the Philippines;
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question
if, instead of making these findings in enactingthe statute,
Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the
distinction between legislative fact and adjudicative fact. Professor
Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2
per cent of alcohol would raise a question of legislativefact, i.e.,
whether this standard has a reasonable relationto public health,
morals, and the enforcement problem. Alaw forbidding the sale of
intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of
adjudicative fact, i.e., whether thisor that beverage is intoxicating
within the meaning of the statuteand the limits on governmental
action imposed by the Constitution. Of course what we mean by
fact in each case is itselfan ultimate conclusion founded on
underlying facts and oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts — those facts
which are relevant to the legislative judgment — will not be
canvassed save to determine whether there is a rationalbasis for
believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated
and found according to the ordinarystandards prevailing for judicial
trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this
Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a
court functus officio." The recital of legislative findings implements
this test.
With respect to a similar statement of legislative findingsin the U.S.
Federal Subversive Activities Control Actof 1950 (that "Communist-
action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist
movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive
investigation by Committes of Congress over morethan a decade
and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We
certainly cannot dismiss them as unfoundedirrational imaginings.
... And if we accept them, as we mustas a not unentertainable
appraisal by Congress of the threatwhich Communist organizations
pose not only to existing governmentin the United States, but to
the United States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist
organizations of thisnature
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative
findings articulated in the Anti-Subversion Act.
Moreover, the word "overthrow' sufficiently connotesthe use of
violent and other illegal means. Only in a metaphoricalsense may
one speak of peaceful overthrow ofgovernments, and certainly the
law does not speak in metaphors.In the case of the Anti-Subversion
Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol
and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the
appellant clearly imported anoverthrow of the Government by
violence, and it should beinterpreted in the plain and obvious sense
in which it wasevidently intended to be understood. The word
'overthrow'could not have been intended as referring to an
ordinarychange by the exercise of the elective franchise. The useof
the whip [which the accused exhorted his audience to useagainst
is
the Constabulary], an instrument designed toleave marks on the
sides of adversaries, is inconsistentwith the mild interpretation
which the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression

That the Government has a right to protect itself againstsubversion

As already pointed out, the Act is aimed against conspiracies to
is a proposition too plain to require elaboration.Self-preservation is
overthrow the Government by force, violence orother illegal means.
the "ultimate value" of society. It surpasses and transcendes every
Whatever interest in freedom of speechand freedom of association
other value, "forif a society cannot protect its very structure from
is infringed by the prohibitionagainst knowing membership in the
armedinternal attack, ...no subordinate value can be
Communist Party ofthe Philippines, is so indirect and so
protected" 40 As Chief Justice Vinson so aptly said in Dennis vs.
insubstantial as to beclearly and heavily outweighed by the
United States: 41
overriding considerationsof national security and the preservartion
of democraticinstitutions in his country.
Whatever theoretical merit there may be to the argumentthat there
is a 'right' to rebellion against dictatorial governmentsis without
The membership clause of the U.S. Federal Smith Actis similar in
force where the existing structure of government provides for
many respects to the membership provision ofthe Anti-Subversion
peaceful and orderly change. We rejectany principle of
Act. The former provides:
governmental helplessness in the face of preparationfor revolution,
which principle, carried to its logical conclusion,must lead to
anarchy. No one could conceive that it isnot within the power of Whoever organizes or helps or attempts to organize anysociety,
Congress to prohibit acts intended tooverthrow the government by group, or assembly of persons who teach, advocate, orencourage
force and violence. the overthrow or destruction of any such governmentby force or
violence; or becomes or is a member of, or affiliatedwith, any such
society, group or assembly of persons, knowingthe purpose thereof
2. By carefully delimiting the reach of the Act to conduct (as
—
explicitly described in sectin 4 thereof), Congressreaffirmed its
respect for the rule that "even throughthe governmental purpose
be legitimate and substantial,that purpose cannot be pursued by Shall be fined not more than $20,000 or imprisoned notmore than
means that broadly stiflefundamental personal liberties when the twenty years, or both, and shall be ineligible for emplymentby the
end can be more narrowly achieved." 42 The requirement United States or any department or agencythereof, for the five
of knowing membership,as distinguished years next following his conviction.... 46
from nominal membership, hasbeen held as a sufficient basis for
penalizing membershipin a subversive organization. 43 For, as has
In sustaining the validity of this provision, the "Court said in Scales
been stated:
vs. United States: 47

Membership in an organization renders aid and encouragement to

It was settled in Dennis that advocacy with which we arehere
the organization; and when membership is acceptedor retained
concerned is not constitutionally protected speech, and itwas
with knowledge that the organization is engaged inan unlawful
further established that a combination to promote suchadvocacy,
purpose, the one accepting or retaining membershipwith such
albeit under the aegis of what purports to be a politicalparty, is not
knowledge makes himself a party to the unlawfulenterprise in which
such association as is protected by the firstAmendment. We can
it is engaged. 44
discern no reason why membership, whenit constitutes a
purposeful form of complicity in a group engagingin this same
3. The argument that the Act is unconstitutionally overbroad forbidden advocacy, should receive anygreater degree of protection
because section 2 merely speaks of "overthrow" of the Government from the guarantees of that Amendment.
and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in
Moreover, as was held in another case, where the problemsof
section 4. Section 2 is merely a legislative declaration; the
accommodating the exigencies of self-preservationand the values
definitionsof and the penalties prescribed for the different acts
of liberty are as complex and intricate as inthe situation described
prescribedare stated in section 4 which requires that membershipin
in the legislative findings stated inthe U.S. Federal Subversive
the Communist Party of the Philippines, to be unlawful, must be
Activities Control Act of 1950,the legislative judgment as to how
acquired "knowingly, willfully and by overt acts." Indeed, the first
that threat may best bemet consistently with the safeguards of
"whereas" clause makes clear thatthe overthrow contemplated is
personal freedomsis not to be set aside merely because the
"overthrow not only by forceand violence but also be deceit,
judgment of judgeswould, in the first instance, have chosen other
subversion and other illegalmeans." The absence of this qualificatio
methods. 48 For in truth, legislation, "whether it restrains freedom
in section 2 appearsto be due more to an oversight rather than to
tohire or freedom to speak, is itself an effort at compromisebetween
deliberateomission.
the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test

734
the court stands one step removedfrom the conflict and its
resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no
bill which may be enacted into law shall embrace more than one
subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the
Act is the last proviso of section 4 which reads:
(2) In the case of the Communist Party of the Philippines,(a) that
the CPP continues to pursue the objectiveswhich led Congress in
1957 to declare it to be an organizedconspiracy for the overthrow
of the Government by illegalmeans for the purpose of placing the
country under thecontrol of a foreign power; (b) that the accused
joined theCPP; and (c) that he did so willfully, knowingly and
byovert acts.
We refrain from making any pronouncement as to thecrime or
remaining a member of the Communist Party ofthe Philippines or
of any other subversive association: weleave this matter to future
determination.

And provided, finally, That one who conspires with anyother ACCORDINGLY, the questioned resolution of September15, 1970 is
person to overthrow the Government of the Republic ofthe set aside, and these two cases are herebyremanded to the court a
Philippines, or the government of any of its political quo for trial on the merits.
subdivisionsby force, violence, deceit, subversion or illegal
means,for the purpose of placing such Government or
Costs de oficio.
political subdivisionunder the control and domination of any
lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory
penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly

membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means,
even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation
under an aliencommunist power, but under an alien democratic
power likethe United States or England or Malaysia or even an anti-
communistpower like Spain, Japan, Thailand or Taiwanor
Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe

Communist Party of the Philippines and SimilarAssociations,
Penalizing Membership Therein, and forOther Purposes"), has a
short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of
the statuteunequivocally indicates that the subject matter is
subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting
Government and not merely subversion by
Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents,

and need not recite the details of the Act. 51 It is a valid title if it
indicates in broad but clear termsthe nature, scope, and
consequences of the proposed lawand its operation. 52 A narrow or
technical construction isto be avoided, and the statute will be read
fairly and reasonablyin order not to thwart the legislative intent.
We holdthat the Anti-Subversion Act fully satisfies these
requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion

Act, we cannot overemphasize the needfor prudence and
circumspection in its enforcement, operatingas it does in the
sensitive area of freedom of expressionand belief. Accordingly, we
set the following basic guidelines to be observed in any prosecution
under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following
elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe

Communist Party of the Philippines, (a) that thepurpose of the
organization is to overthrow the presentGovernment of the
Philippines and to establish in thiscountry a totalitarian regime
under the domination of aforeign power; (b) that the accused
joined such organization;and (c) that he did so knowingly, willfully
and byovert acts; and
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