Republic of the Philippines PEOPLE OF THE PHILIPPINES, Respondent.

SUPREME COURT
Manila x-----------------------x

SPECIAL SECOND DIVISION G.R. Nos. 178057 & 178080

G.R. No. 151258 December 1, 2014 GERARDA H. VILLA, Petitioner,

ARTEMIO VILLAREAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. No. 154954
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM,
JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO
GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II,
ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO,
JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA,
PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS,
JOSEPH LLEDO, and RONAN DE GUZMAN, Respondents.
x-----------------------x
G.R. No. 155101
FIDELITO DIZON, Petitioner,
vs.
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ
SARUCA, JR., and ANSELMO ADRIANO, Respondents.
RESOLUTION
SERENO, CJ:
We are asked to revisit our Decision in the case involving the death of Leonardo "Lenny" Villa due to
fraternity hazing. While there is nothing new in the arguments raised by the parties in their respective
Motions for Clarification or Reconsideration, we find a few remaining matters needing to be clarified
and resobed. Sorne oJ' these matters include the effect of our Decision on the finality of the Court of
Appeals judgments insofar as respondents Antonio Mariano A!meda (Almeda), June] Anthony D. Arna
(Arna), Renato Bantug, Jr. (Bantug), and Vincent Tecson (Tecson) are concerned; the question of who
are eligible to seek probation; and the issue of the validity of the probation proceedings and the
concomitant orders of a court that allegedly had no jurisdiction over the case.
Before the Court are the respective Motions for Reconsideration or Clarification filed by petitioners
People of the Philippines, through the Office of the Solicitor General (OSG), and Gerarda H. Villa
(Villa); and by respondents Almeda, Ama, Bantug, and Tecson (collectively, Tecson et al.) concerning
the Decision of this Court dated 1 February 2012.1 The Court modified the assailed judgments2 of the
Court of Appeals (CA) in CA-G.R. CR No. 15520 and found respondents Fidelito Dizon (Dizon),
Almeda, Ama, Bantug, and Tecson guilty beyond reasonable doubt of the crime of reckless imprudence
resulting in homicide. The modification had the effect of lowering the criminal liability of Dizon from
the crime of homicide, while aggravating the verdict against Tecson et al. from slight physical injuries.
The CA Decision itself had modified the Decision of the Caloocan City Regional Trial Court (RTC)
Branch 121 finding all of the accused therein guilty of the crime of homicide.3
Also, we upheld another CA Decision4 in a separate but related case docketed as CA-G.R. S.P. Nos.
89060 & 90153 and ruled that the CA did not commit grave abuse of discretion when it dismissed the
criminal case against Manuel Escalona II (Escalona), Marcus Joel Ramos (Ramos), Crisanto Saruca, Jr.
(Saruca), and Anselmo Adriano (Adriano) on the ground that their right to speedy trial was violated.
Reproduced below is the dispositive portion of our Decision:5
WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding petitioner Fidelito Dizon guilty of
homicide is hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No.
154954 – finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent
Tecson guilty of the crime of slight physical injuries – is also MODIFIED and SET ASIDE IN PART.
Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent
Tecson are found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide
defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code. They are
hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. In
addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa civil indemnity ex
delicto in the amount of 50,000, and moral damages in the amount of 1,000,000, plus legal interest on
all damages awarded at the rate of 12% from the date of the finality of this Decision until satisfaction.
Costs de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The
appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89(1) of
the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case
against Artemio Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate President and the Speaker of the House of
Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact
of intoxication and the presence of non-resident or alumni fraternity members during hazing as
aggravating circumstances that would increase the applicable penalties.
SO ORDERED.
To refresh our memories, we quote the factual antecedents surrounding the present case:6
In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law
signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert"
Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity
(Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have
dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the
neophytes on what to expect during the initiation rites. The latter were informed that there would be
physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for
three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for the
commencement of their initiation.
Even before the neophytes got off the van, they had already received threats and insults from the
Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then
subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run," which
required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to
the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs;
the "Rounds," in which the neophytes were held at the back of their pants by the "auxiliaries" (the
Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the
latter were being hit with fist blows on their arms or withknee blows on their thighs by two Aquilans;
and the "Auxies’ Privilege Round," in which the auxiliaries were given the opportunity to inflict
physical pain on the neophytes. During this time, the neophytes were also indoctrinated with the
fraternity principles. They survived their first day of initiation. 2. Artemio Villareal (Villareal)

On the morning of their second day – 9 February 1991 – the neophytes were made to present comic 3. Efren de Leon (De Leon)
plays and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or 4. Vincent Tecson (Tecson)
legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to the same manner of hazing that 5. Junel Anthony Ama (Ama)
they endured on the first day of initiation. After a few hours, the initiation for the day officially ended.
6. Antonio Mariano Almeda (Almeda)
After a while, accused non-resident or alumni fraternity members Fidelito Dizon (Dizon) and Artemio
Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino 7. Renato Bantug, Jr. (Bantug)
(Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the
initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to 8. Nelson Victorino (Victorino)
"paddling" and to additional rounds of physical pain. Lenny received several paddle blows, one of
which was so strong it sent him sprawling to the ground. The neophytes heard him complaining of 9. Eulogio Sabban (Sabban)
intense pain and difficulty in breathing. After their last session of physical beatings, Lenny could no
longer walk. He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was 10. Joseph Lledo (Lledo)
officially ended, and the neophytes started eating dinner. They then slept at the carport.
11. Etienne Guerrero (Guerrero)
After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent
mumblings.1avvphi1 Initially, Villareal and Dizon dismissed these rumblings, as they thought he was 12. Michael Musngi (Musngi)
just overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans
started helping him. They removed his clothes and helped him through a sleeping bag to keep him 13. Jonas Karl Perez (Perez)
warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced
dead on arrival. 14. Paul Angelo Santos (Santos)

Consequently, a criminal case for homicide was filed against the following 35 Aquilans: 15. Ronan de Guzman (De Guzman)

In Criminal Case No. C-38340(91) 16. Antonio General (General)

1. Fidelito Dizon (Dizon) 17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)
19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)
26. Percival Brigola (Brigola)
In Criminal Case No. C-38340
1. Manuel Escalona II (Escalona)
2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
5. Reynaldo Concepcion (Concepcion)
6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)
8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)
Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the other
hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in abeyance
due to certain matters that had to be resolved first.
On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the
26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal
under Article 249 of the Revised Penal Code. A few weeks after the trial court rendered its judgment, or
on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced
anew.
On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the finding of conspiracy by the trial
court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then passed away, so the following
Decision applied only to the remaining 25 accused, viz:
1. Nineteen of the accused-appellants– Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman,
Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas,
and Brigola (Victorino et al.) – were acquitted,as their individual guilt was not established by proof
beyond reasonable doubt.
2. Four of the accused-appellants– Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and
Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight physical injuriesand
sentenced to 20 days of arresto menor. They were also ordered to jointly pay the heirs of the victim the
sum of ₱30,000 as indemnity.
3. Two of the accused-appellants– Fidelito Dizonand Artemio Villareal– were found guilty beyond
reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found
no mitigating or aggravating circumstance, the CA sentenced them to an indeterminate sentence of 10
years of prision mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly
and severally, the heirs of Lenny Villa in the sum of ₱50,000 and to pay the additional amount of
₱1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused
Concepcion on the ground of violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused
Escalona, Ramos, Saruca, and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 &
90153 reversed the trial court’s Orders and dismissed the criminal case against Escalona, Ramos,
Saruca, and Adriano on the basis of violation of their right to speedy trial.
From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before
this Court. (Citations omitted)
Motion for Partial Reconsideration
filed by Petitioner Gerarda H. Villa
Petitioner Villa filed the present Motion for Partial Reconsideration7 in connection with G.R. Nos.
178057 & 178080 (Villa v. Escalona) asserting that the CA committed grave abuse of discretion when it
dismissed the criminal case against Escalona, Ramos,Saruca, and Adriano (collectively, Escalona et al.)
in its assailed Decision and Resolution.8 Villa reiterates her previous arguments that the right to speedy
trial of the accused was not violated, since they had failed to assert that right within a reasonable period
of time. She stresses that, unlike their co-accused Reynaldo Concepcion, respondents Escalona et al.did
not timely invoke their right to speedy trial during the time that the original records and pieces of
evidence were unavailable. She again emphasizes that the prosecution cannot be faulted entirely for the
lapse of 12 years from the arraignment until the initial trial, as there were a number of incidents
attributable to the accused themselves that caused the delay of the proceedings. She then insists that we
apply the balancing test in determining whether the right to speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101 (Dizon v. People) and 154954
(People v. Court of Appeals), agrees with the findings of this Court that accused Dizon and Tecson et al.
had neither the felonious intent to kill (animus interficendi) nor the felonious intent to injure (animus
iniuriandi) Lenny Villa. In fact, it concedes that the mode in which the accused committed the crime
was through fault (culpa). However, it contends that the penalty imposed should have been equivalent to
that for deceit (dolo) pursuant to Article 249 (Homicide) of the Revised Penal Code. It argues that the
nature and gravity of the imprudence or negligence attributable to the accused was so gross that it
shattered the fine distinction between dolo and culpaby considering the act as one committed with
malicious intent. It maintains that the accused conducted the initiation rites in such a malevolent and
merciless manner that it clearly endangered the lives of the initiates and was thus equivalent to malice
aforethought.
With respect to the 19 other accused, or Victorino et al., the OSG asserts that their acquittal may also be
reversed despite the rule on double jeopardy, as the CA also committed grave abuse of discretion in
issuing its assailed Decision (CA-G.R. No. 15520). The OSG insists that Victorino et al. should have
been similarly convicted like their other co-accused Dizon, Almeda, Ama, Bantug, and Tecson, since
the former also participated in the hazing of Lenny Villa, and their actions contributed to his death.
Motions for Clarification or Reconsideration of Tecson et al.
Respondents Tecson et al.,10 filed their respective motions pertaining to G.R. No. 154954 (People v.
Court of Appeals). They essentially seek a clarification as to the effect of our Decision insofar as their
criminal liability and service of sentence are concerned. According to respondents, they immediately
applied for probation after the CA rendered its Decision (CAG.R. No. 15520) lowering their criminal
liability from the crime of homicide, which carries a non-probationable sentence, to slight physical
injuries, which carries a probationable sentence. Tecson et al.contend that, as a result, they have already
been discharged from their criminal liability and the cases against them closed and terminated. This
outcome was supposedly by virtue of their Applications for Probation on various dates in January
200211 pursuant to Presidential Decree No. 968, as amended, otherwise known as the Probation Law.
They argue that Branch 130 of Caloocan City Regional Trial Court (RTC) had already granted their
respective Applications for Probation on 11 October 200212 and, upon their completion of the terms
and conditions thereof, discharged them from probation and declared the criminal case against them
terminated on various dates in April 2003.13
To support their claims, respondents attached14 certified true copies of their respective Applications for
Probation and the RTC Orders granting these applications, discharging them from probation, and
declaring the criminal case against them terminated. Thus, they maintain that the Decision in CA-G.R.
No. 15520 had already lapsed into finality, insofar as they were concerned, whenthey waived their right
to appeal and applied for probation.
ISSUES
I. Whether the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of their right to
speedy trial
II. Whether the penalty imposed on Tecson et al. should have corresponded to that for intentional
felonies
III. Whether the completion by Tecson et al. of the terms and conditions of their probation discharged
them from their criminal liability, and closed and terminated the cases against them DISCUSSION
Findings on the Motion for Partial Reconsideration of
Petitioner Gerarda H. Villa
As regards the first issue, we take note that the factual circumstances and legal assertions raised by
petitioner Villa in her Motion for Partial Reconsideration concerning G.R. Nos. 178057 & 178080 have
already been thoroughly considered and passed uponin our deliberations, which led to our Decision
dated 1 February 2012. We emphasize that in light of the finding of violation of the right of Escalona et
al. to speedy trial, the CA’s dismissal of the criminal case against them amounted to an acquittal,15 and
that any appeal or reconsideration thereof would result in a violation of their right against double
jeopardy.16 Though we have recognized that the acquittal of the accused may be challenged where there
has been a grave abuse of discretion,17 certiorari would lie if it is convincingly established that the
CA’s Decision dismissing the case was attended by a whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction. It must be shown that the assailed judgment constitutes "a patent and
gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a
duty imposed by law or toact in contemplation of law; an exercise of power in an arbitrary and despotic
manner by reason of passion and hostility; or a blatant abuse of authority to a point so grave and so
severe as to deprive the court of its very power to dispense justice."18 Thus, grave abuse of discretion
cannot be attributed to a court simply because it allegedly misappreciated the facts and the evidence.19
We have taken a second look at the court records, the CA Decision, and petitioner’s arguments and
found no basis to rule that the CA gravely abused its discretion in concluding that the right to speedy
trial of the accused was violated. Its findings were sufficiently supported by the records of the case and
grounded in law. Thus, we deny the motion of petitioner Villa with finality.
Ruling on the Motion for Reconsideration filed by the OSG
We likewise deny with finality the Motion for Reconsideration filed by the OSG with respect to G.R.
Nos. 155101 (Dizon v. People) and 154954 (People v. Court of Appeals). Many of the arguments raised
therein are essentially a mere rehash of the earlier grounds alleged in its original Petition for Certiorari.
Furthermore, we cannot subscribe to the OSG’s theory that even if the act complained of was born of
imprudence or negligence, malicious intent can still be appreciated on account of the gravity of the
actions of the accused. We emphasize that the finding of a felony committed by means of culpa is
legally inconsistent with that committed by means of dolo. Culpable felonies involve those wrongs done
as a result of an act performed without malice or criminal design. The Revised Penal Code expresses
thusly:
ARTICLE 365. Imprudence and Negligence. — Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto
mayorin its maximum period toprisión correccional in its medium period; if it would have constituted a
less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayorin its medium and maximum periods;
if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period
shall be imposed.
xxxx
Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the person performing
or failing to perform suchact, taking into consideration his employment or occupation, degree of
intelligence, physical condition and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest. (Emphases supplied)
On the other hand, intentional felonies concern those wrongs in which a deliberate malicious intent to
do an unlawful act is present. Below is our exhaustive discussion on the matter:20 Our Revised Penal
Code belongs tothe classical school of thought. x x x The identity of mens rea– defined as a guilty mind,
a guilty or wrongful purpose or criminal intent – is the predominant consideration. Thus, it is not
enough to do what the law prohibits. In order for an intentional felony to exist, it is necessary that the
act be committed by means of doloor "malice."
The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and
intent. x x x x The element of intent – on which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the resolve
with which a person proceeds.It does not refer to mere will, for the latter pertains to the act, while
intentconcerns the result of the act. While motive is the "moving power" that impels one to action for a
definite result, intent is the "purpose" of using a particular means to produce the result. On the other
hand, the term "felonious"means, inter alia, malicious, villainous, and/or proceeding from an evil heart
or purpose.With these elements taken together, the requirement of intent in intentional felony must refer
to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act.
Stated otherwise, intentional felony requires the existence of dolus malus– that the act or omission be
done "willfully," "maliciously," "with deliberate evil intent," and "with malice aforethought." The
maxim is actus non facit reum, nisi mens sit rea– a crime is not committed if the mind of the person
performing the act complained of is innocent. As is required of the other elements of a felony, the
existence of malicious intent must be proven beyond reasonable doubt.
xxxx
The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing
the commission of the intentional felony of homicide. Being mala in se, the felony of homicide requires
the existence of malice or dolo immediately before or simultaneously with the infliction of injuries.
Intent to kill – or animus interficendi– cannot and should not be inferred, unless there is proof beyond
reasonable doubt of such intent. Furthermore, the victim’s death must not have been the product of
accident, natural cause, or suicide. If death resulted from an act executed without malice or criminal
intent – but with lack of foresight, carelessness, or negligence – the act must be qualified as reckless or
simple negligence or imprudence resulting in homicide.
xxxx
In order to be found guilty ofany of the felonious acts under Articles 262 to 266 of the Revised Penal
Code, the employment of physical injuries must be coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental, since injury arises from the mental state of the
wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be
found guilty of an intentional felony. Thus, incase of physical injuries under the Revised Penal Code,
there must be a specific animus iniuriandi or malicious intention to do wrong against the physical
integrity or wellbeing of a person, so as to incapacitate and deprive the victim of certain bodily
functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per semerely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions
are.
Thus, we have ruled in a number of instances that the mere infliction of physical injuries,
absentmalicious intent, does not make a person automatically liable for an intentional felony.x x x.

xxxx
The absence of malicious intent does not automatically mean, however, that the accused fraternity
members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that
are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done without malice, from which an
immediate personal harm, injury or material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In this case, the danger is visible and
consciously appreciated by the actor. In contrast, simple imprudence or negligence comprises an act
done without grave fault, from which an injury or material damage ensues by reason of a mere lack of
foresight or skill. Here, the threatened harm is not immediate, and the danger is not openly visible.
The test for determining whether or not a person is negligent in doing an act is as follows: Would a
prudent man in the position of the person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the
doer the duty to take precaution against the mischievous resultsof the act. Failure to do so constitutes
negligence.
As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of
precaution and diligence required varies with the degree of the danger involved. If, on account of a
certain line of conduct, the danger of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to be very careful, inorder to prevent or
avoid damage or injury. In contrast, if the danger is minor, not much care is required. It is thus possible
that there are countless degrees of precaution or diligence that may be required of an individual, "from a
transitory glance of care to the most vigilant effort." The duty of the person to employ more or less
degree of care will depend upon the circumstances of each particular case. (Emphases supplied, citations
omitted)
We thus reiterate that the law requires proof beyond reasonable doubt of the existence of malicious
intent or dolus malus before an accused can be adjudged liable for committing an intentional felony.
Since the accused were found to have committed a felony by means of culpa, we cannot agree with the
argument of the OSG. It contends that the imposable penalty for intentional felony can also be applied
to the present case on the ground that the nature of the imprudence or negligence of the accused was so
gross that the felony already amounted to malice. The Revised Penal Code has carefully delineated the
imposable penalties as regards felonies committed by means of culpaon the one hand and felonies
committed by means of doloon the other in the context of the distinctions it has drawn between them.
The penalties provided in Article 365 (Imprudence and Negligence) are mandatorily applied if the death
of a person occurs as a result of the imprudence or negligence of another. Alternatively, the penalties
outlined in Articles 246 to 261 (Destruction of Life) are automatically invoked if the death was a result
of the commission of a forbidden act accompanied by a malicious intent. These imposable penalties are
statutory, mandatory, and not subjectto the discretion of the court. We have already resolved – and the
OSG agrees – that the accused Dizon and Tecson et al. had neither animus interficendi nor animus
iniuriandi in inflicting physical pain on Lenny Villa. Hence, we rule that the imposable penalty is what
is applicable to the crime of reckless imprudence resulting in homicide as defined and penalized under
Article 365 of the Revised Penal Code.
Ruling on the Motions for Clarification or Reconsideration
filed by Tecson et al.
We clarify, however, the effect of our Decision in light of the motions of respondents Tecson et al. vis-
à-vis G.R. No. 154954 (People v. Court of Appeals).
The finality of a CA decision will not
bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.
In their separate motions,21 respondents insist that the previous verdict of the CA finding them guilty of
slight physical injuries has already lapsed into finality as a result of their respective availments of the
probation program and their ultimate discharge therefrom. Hence, they argue that they can no longer be
convicted of the heavier offense of reckless imprudence resulting in homicide.22 Respondents allude to
our Decision in Tan v. People23 to support their contention that the CA judgment can no longer be
reversed or annulled even by this Court.
The OSG counters24 that the CA judgment could not have attained finality, as the former had timely
filed with this Court a petition for certiorari. It argues that a Rule 65 petition is analogous to an appeal,
or a motion for new trial or reconsideration, in that a petition for certiorarialso prevents the case from
becoming final and executory until after the matter is ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the finality of a criminal judgment once the accused
applies for probation, viz:
SECTION 7. Modification of judgment. — A judgment of convictionmay, upon motion of the accused,
be modified or set aside before it becomes final or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes finalafter the lapse of the period for perfecting an appeal, or
whenthe sentence has been partially or totally satisfied or served, or when the accusedhas waived in
writing his right to appeal, or has applied for probation. (7a) (Emphases supplied)
Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it can be culled from the foregoing
provisions that only the accused may appeal the criminal aspect of a criminal case, especially if the
relief being sought is the correction or review of the judgment therein. This rule was instituted in order
to give life to the constitutional edict27 against putting a person twice in jeopardy of punishment for the
same offense. It is beyond contention that the accused would be exposed to double jeopardy if the state
appeals the criminal judgment in order to reverse an acquittal or even to increase criminal liability.
Thus, the accused’s waiver of the right to appeal – as when applying for probation – makes the criminal
judgment immediately final and executory. Our explanation in People v. Nazareno is worth
reiterating:28
Further prosecution via an appeal from a judgment of acquittal is likewise barred because the
government has already been afforded a complete opportunity to prove the criminal defendant’s
culpability; after failing to persuade the court to enter a final judgment of conviction, the underlying
reasons supporting the constitutional ban on multiple trials applies and becomes compelling. The reason
is not only the defendant’s already established innocence at the first trial where he had been placed in
peril of conviction, but also the same untoward and prejudicial consequences of a second trial initiated
by a government who has at its disposal all the powers and resources of the State.
Unfairness and prejudice would necessarily result, as the government would then be allowed another
opportunity to persuade a second trier of the defendant’s guilt while strengthening any weaknesses that
had attended the first trial, all in a process where the government’s power and resources are once again
employed against the defendant’s individual means. That the second opportunity comesvia an appeal
does not make the effects any less prejudicial by the standards of reason, justice and conscience.
(Emphases supplied, citations omitted)
It must be clarified, however, that the finality of judgment evinced in Section 7 of Rule 120 does not
confer blanket invincibility on criminal judgments. We have already explained in our Decision that the
rule on double jeopardy is not absolute, and that this rule is inapplicable to cases in which the state
assails the very jurisdiction of the court that issued the criminal judgment.29 The reasoning behind the
exception is articulated in Nazareno, from which we quote:30
In such instance, however, no review of facts and law on the merits, in the manner done in an appeal,
actually takes place; the focus of the review is on whether the judgment is per sevoid on jurisdictional
grounds, i.e., whether the verdict was rendered by a court that had no jurisdiction; or where the court has
appropriate jurisdiction, whether it acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. In other words, the review is on the question of whether there has been a validly rendered
decision, not on the question of the decision’s error or correctness. Under the exceptional nature of a
Rule 65 petition, the burden — a very heavy one — is on the shoulders of the party asking for the
review to show the presence of a whimsical or capricious exercise of judgment equivalent to lack of
jurisdiction; or of a patent and gross abuse of discretion amounting to an evasion of a positive duty or a
virtual refusal to perform a duty imposed by law or to act in contemplation of law; or to an exercise of
power in an arbitrary and despotic manner by reason of passion and hostility. (Emphases supplied,
citations omitted) While this Court’s Decision in Tan may have created an impression of the
unassailability of a criminal judgment as soon as the accused applies for probation, we point out that
what the state filed therein was a mere motion for the modification of the penalty, and not a Rule 65
petition. A petition for certiorari is a special civil action that is distinct and separate from the main case.
While in the main case, the core issue is whether the accused is innocent or guilty of the crime charged,
the crux of a Rule 65 petition is whether the court acted (a) without or in excess of its jurisdiction; or (b)
with grave abuse of discretion amounting to lack or excess of jurisdiction. Hence, strictly speaking,
there is nomodification of judgment in a petition for certiorari, whose resolution does not call for a re-
evaluation of the merits of the case in order to determine the ultimate criminal responsibility of the
accused. In a Rule 65 petition, any resulting annulment of a criminal judgment is but a consequence of
the finding of lack of jurisdiction.
In view thereof, we find that the proper interpretation of Section 7 of Rule 120 must be that it is
inapplicable and irrelevant where the court’s jurisdiction is being assailed through a Rule 65 petition.
Section 7 of Rule 120 bars the modification of a criminal judgment only if the appeal brought before the
court is in the nature of a regular appeal under Rule 41, or an appeal by certiorari under Rule 45, and if
that appeal would put the accused in double jeopardy. As it is, we find no irregularity in the partial
annulment of the CA Decision in CA-G.R. No. 15520 in spite of its finality, as the judgment therein was
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
The orders of Caloocan City RTC
Branch 130 have no legal effect, as
they were issued without jurisdiction.
First, Tecson et al. filed their Applications for Probation with the wrong court. Part and parcel of our
criminal justice system is the authority or jurisdiction of the court to adjudicate and decide the case
before it. Jurisdiction refers to the power and capacity of the tribunal to hear, try, and decide a particular
case or matter before it.31 That power and capacity includes the competence to pronounce a judgment,
impose a punishment,32 and enforce or suspend33 the execution of a sentencein accordance with law.
The OSG questions34 the entire proceedings involving the probation applications of Tecson et al. before
Caloocan City RTC Branch 130. Allegedly, the trial court did not have competence to take cognizance
of the applications, considering that it was not the court of origin of the criminal case. The OSG points
out that the trial court that originally rendered the Decision in Criminal Case No. C-38340(91) was
Branch 121 of the Caloocan City RTC.
The pertinent provision of the Probation Law is hereby quoted for reference:
SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction. x x x x (Emphases supplied)
It is obvious from the foregoing provision that the law requires that an application for probation be filed
withthe trial court that convicted and sentenced the defendant, meaning the court of origin. Here, the
trial court that originally convicted and sentenced Tecson et al.of the crime of homicide was Branch 121
– not Branch 130 – of the Caloocan City RTC.35 Neither the judge of Branch 130 in his Orders nor
Tecson et al.in their pleadings have presented any explanation or shown any special authority that would
clarify why the Applications for Probation had not been filed with or taken cognizance of by Caloocan
City RTC Branch 121. While we take note that in a previous case, the CA issued a Decision ordering
the inhibition of Branch 121 Judge Adoracion G. Angeles from hearing and deciding Criminal Case No.
C-38340(91), the ruling was made specifically applicable to the trial of petitioners therein, i.e. accused
Concepcion, Ampil, Adriano, and S. Fernandez.36
Tecson et al. thus committed a fatal error when they filed their probation applications with Caloocan
City RTC Branch 130, and not with Branch 121. We stress that applicants are not at liberty to choose
the forum in which they may seek probation, as the requirement under Section 4 of the Probation law is
substantive and not merely procedural. Considering, therefore, that the probation proceedings were
premised on an unwarranted exercise of authority, we find that Caloocan City RTC Branch 130 never
acquired jurisdiction over the case.
Second, the records of the casewere still with the CA when Caloocan City RTC Branch 130 granted the
probation applications. Jurisdiction over a case is lodged with the court in which the criminal action has
been properly instituted.37 If a party appeals the trial court’s judgment or final order,38 jurisdiction is
transferred to the appellate court. The execution of the decision is thus stayed insofar as the appealing
party is concerned.39 The court of origin then loses jurisdiction over the entire case the moment the
other party’s time to appeal has expired.40 Any residual jurisdiction of the court of origin shall cease –
including the authority to order execution pending appeal – the moment the complete records of the case
are transmitted to the appellate court.41 Consequently, it is the appellate court that shall have the
authority to wield the power to hear, try, and decide the case before it, as well as to enforce its decisions
and resolutions appurtenant thereto. That power and authority shall remain with the appellate court until
it finally disposes of the case. Jurisdiction cannot be ousted by any subsequent event, even if the nature
of the incident would have prevented jurisdiction from attaching in the first place.
According to Article 78 of the Revised Penal Code, "[n]o penalty shall be executed except by virtue of a
final judgment." A judgment of a court convicting or acquitting the accused of the offense charged
becomes final under any of the following conditions among others:42 after the lapse of the period for
perfecting an appeal; when the accused waives the right to appeal; upon the grant of a withdrawal ofan
appeal; when the sentence has already been partially or totally satisfied or served; or when the accused
applies for probation. When the decision attains finality, the judgment or final order is entered in the
book of entries of judgments.43 If the case was previously appealed to the CA, a certified true copy of
the judgment or final order must be attached to the original record, which shall then be remanded to the
clerk of the court from which the appeal was taken.44 The court of origin then reacquires jurisdiction
over the case for appropriate action. It is during this time that the court of origin may settle the matter of
the execution of penalty or the suspension of the execution thereof,45 including the convicts’
applications for probation.46
A perusal of the case records reveals that the CA had not yet relinquished its jurisdiction over the case
when Caloocan City RTC Branch 130 took cognizance of the Applications for Probation of Tecson et
al. It shows that the accused filed their respective applications47 while a motion for reconsideration was
still pending before the CA48 and the records were still with that court.49 The CA settled the motion
only upon issuing the Resolution dated 30 August 2002 denying it, or about seven months after Tecson
et al. had filed their applications with the trial court.50 In September 2002, or almost a month before the
promulgation of the RTC Order dated 11 October 2002 granting the probation applications,51 the OSG
had filed Manifestations of Intent to File Petition for Certiorari with the CA52 and this Court.53
Ultimately, the OSG assailed the CA judgments by filing before this Court a Petition for Certiorari on
25 November 2002.54 We noted the petition and then required respondents to file a comment
thereon.55 After their submission of further pleadings and motions, we eventually required all parties to
file their consolidated memoranda.56 The records of the case remained with the CA until they were
elevated to this Court in 2008.57
For the foregoing reasons, we find that RTC Branch 130 had no jurisdiction to act on the probation
applications of Tecson et al. It had neither the power nor the authority to suspend their sentence, place
them on probation, order their final discharge, and eventually declare the case against them terminated.
This glaring jurisdictional faux pasis a clear evidence of either gross ignorance of the law oran
underhanded one-upmanship on the part of RTC Branch 130 or Tecson et al., or both – to which this
Court cannot give a judicial imprimatur.
In any event, Tecson et al. were ineligible to seek probation at the time they applied for it. Probation58
is a special privilege granted by the state to penitent qualified offenders who immediately admit their
liability and thus renounce their right to appeal. In view of their acceptance of their fate and willingness
to be reformed, the state affords them a chance to avoid the stigma of an incarceration recordby making
them undergo rehabilitation outside of prison. Some of the major purposes of the law are to help
offenders to eventually develop themselves into law-abiding and self respecting individuals, as well as
to assist them in their reintegration with the community.
It must be reiterated that probation is not a right enjoyed by the accused. Rather, it is an act of grace
orclemency conferred by the state. In Francisco v. Court of Appeals,59 this Court explained thus:
It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all.
Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised
primarily for the benefit of organized society, and only incidentally for the benefit of the accused. The
Probation Law should not therefore be permitted to divest the state or its government of any of the
latter’s prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly
expressed, and no person should benefit from the terms of the law who is not clearly within them.
(Emphases supplied)
The OSG questions the validity of the grant of the probation applications of Tecson et al.60 It points out
that when they appealed to the CA their homicide conviction by the RTC, they thereby made themselves
ineligible to seek probation pursuant to Section 4 of Presidential Decree No. 968 (the Probation Law).
We refer again to the full text ofSection 4 of the Probation Law as follows:
SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed
a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. (Emphases supplied)
Indeed, one of the legal prerequisites of probation is that the offender must not have appealed the
conviction.61 In the 2003 case Lagrosa v. Court of Appeals,62 this Court was faced with the issue of
whether a convict may still apply for probation even after the trial court has imposed a non
probationable verdict, provided that the CA later on lowers the original penalty to a sentence within the
probationable limit. In that case, the trial court sentenced the accused to a maximum term of eight years
of prisión mayor, which was beyond the coverage of the Probation Law. They only became eligible for
probation after the CA reduced the maximum term of the penalty imposed to 1 year, 8 months and 21
days of prisión correccional.
In deciding the case, this Court invoked the reasoning in Francisco and ruled that the accused was
ineligiblefor probation, since they had filed an appeal with the CA. In Francisco, we emphasized that
Section 4 of the Probation Law offers no ambiguity and does not provide for any distinction,
qualification, or exception. What is clearis that all offenders who previously appealed their cases,
regardless of their reason for appealing, are disqualified by the law from seeking probation.
Accordingly, this Court enunciated in Lagrosathat the accused are disallowed from availing themselves
of the benefits of probation if they obtain a genuine opportunity to apply for probation only on appeal as
a result of the downgrading of their sentence from non-probationable to probationable.
While Lagrosa was promulgated three months after Caloocan City RTC Branch 130 issued its various
Orders discharging Tecson et al. from probation, the ruling in Lagrosa, however, was a mere reiteration
of the reasoning of this Court since the 1989 case Llamado v. Court of Appeals63 and Francisco. The
Applications for Probation of Tecson et al., therefore, should not have been granted by RTC Branch
130, as they had appealed their conviction to the CA. We recall that respondents were originally found
guilty of homicide and sentenced to suffer 14 years, 8 months, and 1 day of reclusion temporal as
maximum. Accordingly, even if the CA later downgraded their conviction to slight physical injuries and
sentenced them to 20 days of arresto menor, which made the sentence fall within probationable limits
for the first time, the RTC should have nonetheless found them ineligible for probation at the time.
The actions of the trial court must thus be adjudged as an arbitrary and despotic use of authority, so
gross that it divested the court of its very power to dispense justice. As a consequence, the RTC Orders
granting the Applications for Probation of Tecson et al. and thereafter discharging them from their
criminal liability must be deemed to have been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction.
Whether for lack of jurisdiction orfor grave abuse of discretion, amounting to lack or excess of
jurisdiction, we declare all orders, resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void for having been issued without
jurisdiction. We find our pronouncement in Galman v. Sandiganbayan64 applicable, viz:
A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights
can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds
nor bars anyone. All acts performed under it and all claims flowing out of it are void. (Emphasis
supplied)
The ultimate discharge of Tecson et
al. from probation did not totally
extinguish their criminal liability.
Accused Bantug asserts65 that, in any event, their criminal liability has already been extinguished as a
result of their discharge from probation and the eventual termination of the criminal case against them
by Caloocan City RTC Branch 130. To support his argument, he cites the following provision of the
Revised Penal Code:
ARTICLE 89. How Criminal Liability is Totally Extinguished. — Criminal liability is totally
extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the penalty and all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in article 344 of this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source of legal rights; legally speaking, it is as if
no judgment had been rendered at all. Considering our annulment of the Orders of Caloocan City RTC
Branch 130 in relation to the probation proceedings, respondents cannot claim benefits that technically
do not exist.
In any event, Tecson et al.cannot invoke Article89 of the Revised Penal Code, as we find it inapplicable
to this case. One of the hallmarks of the Probation Law is precisely to "suspend the execution of the
sentence,"66 and not to replace the original sentence with another, as we pointed out in our discussion in
Baclayon v. Mutia:67
An order placing defendant on "probation" is not a "sentence" but is rather in effect a suspension of the
imposition of sentence. It is not a final judgment but is rather an "interlocutory judgment"in the nature
of a conditional order placing the convicted defendant under the supervision of the court for his
reformation, to be followed by a final judgment of discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if the conditions are violated. (Emphases supplied)
Correspondingly, the criminal liability of Tecson et al.remains.
In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.
Very recently, in Colinares v. People,68 we revisited our ruling in Franciscoand modified our
pronouncements insofar as the eligibility for probation of those who appeal their conviction is
concerned. Through a majority vote of 9-6, the Court En Bancin effect abandoned Lagrosaand settled
the following once and for all:69
Secondly, it is true that under the probation law the accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the
regional trial court,now set aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More, the Supreme Court’s judgment
of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial court’s
judgment — even if this has been found in error. And, worse, Arnel will now also be made to pay for
the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo
ang nagkasala, ang hagupit ay sa kalabaw(the horse errs, the carabao gets the whip). Where is justice
there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of Appealsthat the probation law requires that an
accused must not have appealed his conviction before he can avail himself of probation. But there is a
huge difference between Franciscoand this case.
xxxx
Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. Hewas not in a position to say, "By
taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court imposed on
him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this
Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those
who will appeal from judgments of conviction, when they have the option to try for probation, forfeit
their right to apply for that privilege.
xxxx
In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months maximum. This would have
afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through no fault of his. The
underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not
served by a harsh and stringent interpretation of the statutory provisions. As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere privilege to
be given to the accused only where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be applied in favor of the accused
not because it is a criminal law but to achieve its beneficent purpose.
xxxx
At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he would havehad the right to apply for probation. No
one could say with certainty that he would have availed himself of the right had the RTC doneright by
him. The idea may not even have crossed his mind precisely since the penalty he got was not
probationable.
The question in this case is ultimately one of fairness.1âwphi1 Is it fair to deny Arnel the right to apply
for probation when the new penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation? (Emphases supplied)
In our Decision, we set aside the RTC and the CA judgments and found Tecson et al.ultimately liable
for the crime of reckless imprudence resulting in homicide. Pursuant to Article 365 of the Revised Penal
Code, the offense is punishable by arresto mayor in its maximum period (from 4 months and 1 day to 6
months) to prisión correccional in its medium period (from 2 years, 4 months, and 1 day to 4 years and 2
months). Considering that the new ruling in Colinares is more favorable to Tecson et al., we rule that
they are now eligible to apply for probation. Since Fidelito Dizon (Dizon) was convicted of the same
crime, we hereby clarify that Dizon is also eligible for probation.
While we cannot recognize the validityof the Orders of RTC Branch 130, which granted the
Applications for Probation, we cannot disregard the fact that Tecson et al. have fulfilled the terms and
conditions of their previous probation program and have eventually been discharged therefrom. Thus,
should they reapply for probation, the trial court may, at its discretion, consider their antecedent
probation service in resolving whether to place them under probation at this time and in determining the
terms, conditions, and period thereof.
Final clarificatory matters
We now take this opportunity to correct an unintentional typographical error in the minimum term of the
penalty imposed on the accused Dizon and Tecson et al. While this issue was not raised by any of the
parties before us, this Court deems it proper to discuss the matter ex proprio motuin the interest of
justice. In the first paragraph of the dispositive portion of our Decision dated 1 February 2012, the
fourth sentence reads as follows:
They are hereby sentenced to suffer anindeterminate prison term of four (4) months and one (1) day of
arresto mayor, as minimum, to four (4) years and two (2) months of prisión correccional, as maximum.
As we had intended to impose on the accused the maximum term of the "penalty next lower" than that
prescribed by the Revised Penal Code for the offense of reckless imprudence resulting in homicide, in
accordance with the Indeterminate Sentence Law (ISL),70 the phrase "and one (1) day," which had been
inadvertently added, must be removed. Consequently, in the first paragraph of the dispositive portion,
the fourth sentence should now read as follows:
They are hereby sentenced to suffer anindeterminate prison term of four (4) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prisión correccional, as maximum. In this instance,
we further find it important to clarify the accessory penalties inherent to the principal penalty imposed
on Dizon and Tecson et al.
By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a corresponding accessory penalty
automatically attaches every time a court lays down a principal penalty outlined in Articles 25 and 27
thereof.71 The applicable accessory penalty is determined by using as reference the principal
penaltyimposed by the court before the prison sentence is computed in accordance with the ISL.72 This
determination is made in spite of the two classes ofpenalties mentioned in an indeterminate sentence. It
must be emphasized that the provisions on the inclusion of accessory penalties specifically allude to the
actual "penalty"73 imposed, not to the "prison sentence"74 set by a court. We believe that the ISL did
not intend to have the effect of imposing on the convict two distinct sets of accessory penalties for the
same offense.75 The two penalties are only relevant insofar as setting the minimum imprisonment
period is concerned, after which the convict may apply for parole and eventually seek the shortening of
the prison term.76
Under Article 365 of the Revised Penal Code, the prescribed penalty for the crime of reckless
imprudence resulting in homicide is arresto mayor in its maximum period to prisión correccionalin its
medium period. As this provision grants courts the discretion tolay down a penalty without regard to the
presence of mitigating and aggravating circumstances, the imposable penaltymust also be within the
aforementioned range.77 Hence, before applying the ISL, we ultimately imposed on Dizon and Tecson
et al. the actual (straight) penalty78 of four years and two months of prisión correccional.79 Pursuant to
Article 43 of the Revised Penal Code, the penalty of prisión correccional automatically carries with it80
the following accessory penalties: ARTICLE 43. Prisión Correccional— Its accessory penalties. — The
penalty of prisión correccional shall carry with it that of suspension from public office, from the right
tofollow a profession or calling, and that of perpetual special disqualification from the right of suffrage,
if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
The duration of their suspension shall be the same as that of their principal penalty sans the ISL; that is,
for four years and two months81 or until they have served their sentence in accordance with law. Their
suspension takes effect immediately, once the judgment of conviction becomes final.82
We further point out that if the length of their imprisonment exceeds 18 months, they shall furthermore
suffer a perpetual special disqualification from the right of suffrage. Under Article 32 of the
RevisedPenal Code, if this accessory penalty attaches, it shall forever deprive them of the exercise of
their right (a) to vote in any popular election for any public office; (b) to be elected to that office; and
(c) to hold any public office.83 Any public office that they may be holding becomes vacant upon
finality of the judgment.84 The aforementioned accessory penalties can only be wiped out if expressly
remitted in a pardon.85
Of course, the aforementioned accessory penalties are without prejudice to a grant of probation,
shouldthe trial court find them eligible therefor. As we explained in Baclayon,86 the grant of probation
suspends the execution of the principal penalty of imprisonment, as well as that of the accessory
penalties. We have reiterated this point in Moreno v. Commission on Elections:87
In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence our recent ruling in Colinares v. People of the Philippines,88 without prejudice to their remaining civil
but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to liability, if any.
petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to follow a profession or calling, and that Furthermore, we issue a CORRECTION of the dispositive portion of our Decision dated 1 February
of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting 2012 and hereby delete the phrase "and one (1) day" located in the fourth sentence of the first paragraph
probation the paragraph which required that petitioner refrain from continuing with her teaching thereof. The sentence shall now read as follows: "They are hereby sentenced to suffer an indeterminate
profession. prison term of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of
prisi6n correccional, as maximum."
Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from
the right to follow a profession or calling, and that of perpetual special disqualification from the right of SO ORDERED.
suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its
minimum period imposed upon Moreno were similarly suspended upon the grant of probation. MARIA LOURDES P.A. SERENO
Chief Justice
It appears then that during the period of probation, the probationer is not even disqualified from running
for a public office because the accessory penalty of suspension from public office is put on hold for the WE CONCUR:
duration of the probation. x x x x. During the period of probation, the probationer does not serve the
penalty imposed upon him by the court but is merely required to comply with all the conditions ANTONIO T. CARPIO
prescribed in the probation order. Senior Associate Justice
Chairperson
WHEREFORE, premises considered, the Motion for Partial Reconsideration of petitioner Gerarda H.
Villa in connection with G.R. Nos. 178057 & 178080 is hereby DENIED. The Motion for MARTIN S. VILLARAMA, JR.*
Reconsideration filed by the Office of the Solicitor General concerning G.R. Nos. 155101 and 154954 is Associate Justice JOSE PORTUGAL PEREZ
also DENIED. Associate Justice
BIENVENIDO L. REYES
The respective Motions for Clarification or Reconsideration of Antonio Mariano Almeda, Junel Associate Justice
Anthony D. Arna, Renato Bantug, Jr., and Vincent Tecson are likewise DENIED. In light of the finding
that Caloocan City Regional Trial Court Branch 130 acted without or in excess of its jurisdiction in CERTIFICATION
taking cognizance of the aforementioned Applications for Probation, we hereby ANNUL the entire
probation proceedings and SET ASIDE all orders, resolutions, or judgments issued in connection Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
thereto. We, however, CLARIFY that Antonio Mariano Almeda, Junel Anthony D. Arna, Renato Resolution had been reached in consultation before the case was assigned to the writer of the opinion of
Bantug, Jr., Vincent Tecson, and Fidelito Dizon are eligible to apply or reapply for probation in view of the Court's Division.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
* Designated additional member in lieu of Assocciate Justice Arturo D. Brion per S.O. No. 1888 dated
28 November 2014.
1 Villareal v. People, G.R. Nos. 151258, 154954, 155101, 178057 & 178080, 1 February 2012, 664
SCRA 519.
2 CA Decision (People v. Dizon, CA-G.R. CR No. 15520, 10 January 2002), rollo(G.R. No. 154954,
Vol. I), pp. 221-249; CA Resolution (People v. Dizon, CA-G.R. CR No. 15520, 30 August 2002), rollo
(G.R. No. 154954, Vol. I), pp. 209-218. Both the Decision and the Resolution of the CA were penned
by Associate Justice Eubulo G. Verzola and concurred in by Associate Justices Rodrigo V. Cosico and
Eliezer R. de los Santos (with Concurring Opinion).
3 RTC Decision (People v. Dizon, Criminal Case No. C-38340[91], 8 November 1993), rollo (G.R. No.
154954, Vol. I), pp. 273-340. The Decision of the RTC was penned by Judge Adoracion G. Angeles.
4 CA Decision (Escalona v. Regional Trial Court, CA-G.R. S.P. Nos. 89060 & 90153, 25 October
2006), rollo (G.R. Nos. 178057 & 178080), pp. 12-51. The Decision was penned by Associate Justice
Mariflor P. Punzalan Castillo and concurred in by Associate Justices Andres B. Reyes Jr. and Hakim S.
Abdulwahid.
5 Villareal v. People, supra note 1, at 598-599.
6 Id. at 530-535.
7 Motion for Partial Reconsideration of petitioner Gerarda H. Villa (posted on 6 March 2012), rollo
(G.R. Nos. 178057 & 178080), pp. 1607-1660.
8 CA Decision dated 25 October 2006 (Escalona v. Regional Trial Court), supra note 4; CA Resolution
(Escalona v. Regional Trial Court, CA-G.R. S.P. Nos. 89060 & 90153, 17 May 2007), rollo (G.R. Nos.
178057 & 178080), pp. 53-58.
9 Motion for Reconsideration of OSG (posted on 7 March 2012), rollo (G.R. No. 155101), pp. 2085-
2117.
10 Manifestation and Motion for Clarification of Almeda (filed on 2 March 2012), rollo (G.R. No.
155101), pp. 1843-1860; Motion for Reconsideration of Ama (filed on 5 March 2012), rollo (G.R. No.
155101), pp. 1883-1896; Motion for Clarification of Bantug (filed on 6 March 2012), rollo (G.R. No.
155101), pp. 1953-1966; and Motion for Clarification of Tecson (filed on 6 March 2012), rollo (G.R.
No. 155101), pp. 1930-1941.
11 Rollo (G.R. No. 155101), pp. 1861, 1897, 1942, & 1967.
12 RTC Order (People v. Dizon, Criminal Case No. C-38340, 11 October 2002), rollo (G.R. No.
155101), pp. 1872-1873, 1904-1905, 1950-1951, 1977-1978.
13 RTC Order (People v. Dizon, Criminal Case No. C-38340, 29 April 2003), rollo (G.R. No. 155101),
p. 1875; RTC Order (People v. Dizon, Criminal Case No. C-38340, 10 April 2003), rollo (G.R. No.
155101), pp. 1906, 1952; RTC Order (People v. Dizon, Criminal Case No. C-38340, 3 April 2003),
rollo (G.R. No. 155101), p. 1979.
14 Rollo (G.R. No. 155101), pp. 1861-1875, 1897-1906, 1942-1952, 1967-1979.
15 Villareal v. People, supra note 1, at 545 (citing People v. Hernandez, 531 Phil. 289 [2006]; People v.
Tampal, 314 Phil. 35 [1995]; Philippine Savings Bank v. Bermoy, 508 Phil. 96 [2005]; People v. Bans,
239 SCRA 48 [1994]; People v. Declaro, 252 Phil. 139 [1989]; and People v. Quizada, 243 Phil. 658
[1988]).
16 See: People v. Hernandez, supra.

17 Villareal v. People, supra note 1, at 550 (citing People v. Court of Appeals and Galicia, 545 Phil. 278
[2007]; People v. Serrano, 374 Phil. 302 [1999]; and People v. De Grano, G.R. No. 167710, 5 June
2009, 588 SCRA 550).
18 Villareal v. People, supra note 1, at 551 (citingPeople v. De Grano, supra note 17; and People v.
Maquiling, 368 Phil. 169 [1999]).
19 Villareal v. People, supra note 1, at 552 (citingPeople v. Maquiling, supra; and Teknika Skills and
Trade Services v. Secretary of Labor and Employment, 339 Phil. 218 [1997]).
20 Villareal v. People, supra note 1, at 556-593.
21 Supra note 10.
22 In the annulled CA Decision (supra note 2), Tecson et al. were sentenced to suffer the penalty of 20
days of arresto menor. On the other hand, in the Decision of this Court (supra note 1), they were
sentenced to suffer the indeterminate prison term of four (4) months and one (1) day of arresto mayor,
as minimum, to four (4) years and two (2) months of prisión correccional, as maximum.
23 430 Phil. 685 (2002). The accused was found guilty ofbigamy by the trial court, and was sentenced
to suffer a prison term of prisión correccional. He thereafter applied for probation, as the sentence
imposed on him was probationable. Subsequently however, the trial court withheld the order of release
from probation in view of the filing by the prosecution of a motion for modification of the penalty. The
prosecution pointed out that the trial court erred inimposing the sentence on the accused, as the legally
imposable penalty under the Revised Penal Code was prisión mayor, which is non-probationable. The
trial court reconsidered its order and amended the sentence from a maximum period of 4 years and 2
months to the maximum period of 8 years and 1 day, which had the effect of disqualifying accused from
applying for probation. This Court set aside the amendatory judgment of the trial court and reinstated its
original decision, and ruled that the trial court judgment canno longer be reversed, annulled,
reconsidered, or amended, as it has already lapsed into finality. It was then reiterated that the accused’s
waiver of appeal brought about by his application for probation amounted to a voluntary compliance
with the decision and wrote finisto the jurisdiction of the trial court over the judgment.
24 Reply of OSG dated 25 November 2004, rollo(G.R. No. 154954, Vol. I), pp. 1098-1132.
25 Rule 117 of the Rules of Court provides as follows:
SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient
in form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former complaint or
information. (Emphasis supplied)
26 Rules of Court, Rule 122, provides as follows:
SECTION 1. Who may appeal. — Any party may appealfrom a judgment or final order, unless the
accused will be placed in double jeopardy. (2a) (Emphases supplied)
27 1987 Constitution, Art. III, Sec. 21.
28 G.R. No. 168982, 5 August 2009, 595 SCRA 438, 450.
29 People v. Court of Appeals and Galicia, supra note 17 (citingPeople v. Serrano, supra note 17, at
306; and People v. De Grano, supra note 17).
30 Supra note 28, at 451.
31 People v. Mariano, 163 Phil. 625 (1976).
32 Id.; and Antiporda v. Garchitorena, 378 Phil. 1166 (1999).
33 See: Presidential Decree No. 968, otherwise known as the Probation Law, Sec. 4.
34 Reply of OSG dated 25 November 2004, rollo (G.R. No. 154954, Vol. I), pp. 1098-1132.
35 See: RTC Decision (People v. Dizon), supra note 3.
36 Concepcion v. Judge Angeles, CA-G.R. SP No. 32793 (CA, decided on 15 June 1994), slip. op., at
16.
37 See Batas Pambansa Blg. 129 (otherwise known as The Judiciary Reorganization Act of 1980), Sec.
20, for the applicable law on which court has subject-matter jurisdiction over criminal cases; and Rule
110, Sec. 15, for the applicable rule on where the criminal action must be instituted.
38 Rule 122, Sec. 1; Rule 121, Sec. 7.
39 Rule 122, Sec. 11(c).
40 Rule 41, Sec. 9 in relation to Rule 122, Sec. 6.
41 Rule 41, Sec. 9 in relation to Rule 122, Secs. 8 and 11(c).
42 Rule 120, Sec. 7; Rule 122, Sec. 12.
43 Rule 120, Sec. 8 in relation to Rule 36, Sec. 2; Rule 124, Sec. 17.
44 Rule 124, Sec. 17.
45 Revised Penal Code, Arts. 78 to 88 (in relation to Rule 124, Sec. 17; Rule 121, Sec. 8; Rule 36, Sec.
2; Rule 39, Sec. 1)
46 Probation Law, Sec. 4.
47 Tecson et al. filed their applications on various dates in January 2002. See: rollo (G.R. No. 155101),
pp. 1861-1863, 1897-1901, 1942-1944, & 1967-1969.
48 See: CA Resolution dated 30 August 2002, supra note 2 at 6, rollo (G.R. No. 154954, Vol. I), p. 214.
49 See: CA Resolution (People v. Dizon, CA-G.R. CR No. 15520, 14 February 2002), rollo (G.R. No.
155101), p. 1972. In the Resolution, the CA stated that "the records of this case cannot be remanded at
this stage considering the motions for reconsideration filed hereto." See also: Letter of Presiding Judge
Adoracion G. Angeles, CA rolloVol. II, pp. 2686-2688; Transmittal Letter from the CA dated 19
February 2008, rollo(G.R. No. 155101), p. 918.
50 CA Resolution dated 30 August 2002, supra note 2 at 6, rollo (G.R. No. 154954, Vol. I), p. 214.
51 RTC Order (People v. Dizon, Criminal Case No. C-38340, 11 October 2002), rollo (G.R. No.
155101), pp. 1872-1873, 1904-1905, 1950-1951, 1977-1978.
52 CA Resolution (People v. Dizon, CA-G.R. CR No. 15520, 29 October 2002), CA rolloVolume II, pp.
2724-2725.
53 Supreme Court Resolution dated 25 November 2002, rollo(G.R. No. 154954, Vol. I), p. 10-A.
54 The Supreme Court granted the Motion for Extension filed by the OSG. See: Supreme Court
Resolution dated 13 October 2003, rollo (G.R. No. 154954, Vol. I), p. 675.
55 Supreme Court Resolution dated 13 October 2003, rollo(G.R. No. 154954, Vol. I), p. 675.
56 Supreme Court Resolution dated 21 October 2009, rollo(G.R. No. 155101), pp. 1156-1160.
57 Transmittal Letter from the CA dated 19 February 2008, rollo(G.R. No. 155101), p. 918; See also
Letter of Presiding Judge Adoracion G. Angeles, Caloocan City RTC Branch 121, CA rolloVol. II, pp.
2686-2688. Judge Angeles informed the CAthat the records of the case had not yet been remanded to
Branch 121, thus preventing her from complying with the CA Resolution to release the cash bond
posted by one of the accused. The CA Third Division received the letter on 22 October 2002 – or 11
days after RTC Branch 130 granted the probation applications.
58 Probation Law; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Baclayon v. Mutia, 214
Phil. 126 (1984). See: Del Rosario v. Rosero, 211 Phil. 406 (1983).
59 Id. at 254-255.
60 Reply of OSG dated 25 November 2004, rollo (G.R. No. 154954, Vol. I), pp. 1098-1132.
61 Lagrosa v. Court of Appeals, 453 Phil. 270 (2003); and Francisco v. Court of Appeals, supra note 58.
62 Supra. See also: Francisco v. Court of Appeals, supra note 58.
63 256 Phil. 328 (1989).
64 228 Phil. 42, 90 (1986). E.g., People v. Jardin, 209 Phil. 134, 140 (1983) (citing Gomez v.
Concepcion, 47 Phil. 717 [1925]; Chavez v. Court of Appeals, 133 Phil. 661 [1968]; Paredes v. Moya,
158 Phil. 1150, [1974]).
65 Motion for Clarification of Bantug, supra note 10.
66 Probation Law, Sec. 4.
67 Supra note 58, at 132.
68 G.R. No. 182748, 13 December 2011, 662 SCRA 266.
69 Id. at 279-282.
70 See, e.g.: People v. Temporada, G.R. No. 173473, 17 December 2008, 574 SCRA 258; People v.
Gabres, 335 Phil. 242 (1997); and People v. Ducosin, 59 Phil. 109 (1933).
71 Revised Penal Code, Art. 73. People v. Silvallana, 61 Phil. 636, 644 (1935). According to Silvallana:
"It is therefore unnecessary to express the accessory penalties in the sentence."
72 See, e.g.: Moreno v. Commission on Elections, 530 Phil. 279 (2006); Baclayon v. Mutia, supra note
58.
73 Article 73 of the Revised Penal Code provides: "Presumption in Regard to the Imposition of
Accessory Penalties. — Whenever the courts shall imposea penalty which, by provision of law, carries
with it other penalties, according to the provisions of articles 40, 41, 42, 43, 44, and 45 of this Code, it
must be understood that the accessory penalties are also imposed upon the convict."
74 Section 1 of the Indeterminate Sentence Law, as amended, provides: "Hereafter, in imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence
the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code, and the minimum
which shall be within the range of the penalty next lower to that prescribed by the Code for the offense;
x x x."
75 The law should not apply if its application would be unfavorable to the accused. See generally
RAMON C. AQUINO, THE REVISED PENAL CODE – VOL. 1, 720-721 (1987).
76 See ISL, Sec. 5; RAMON C. AQUINO, THE REVISED PENAL CODE – VOL. 1, 718-720 (1987).
77 Article 365 provides: "In the imposition of these penalties, the courts shall exercise their sound
discretion, without regard to the rules prescribed in article sixty-four."
78 People v. Temporada, supra note 70; People v. Ducosin, supra. See, e.g.: Bongalon v. People, G.R.
No. 169533, 20 March 2013, 694 SCRA 12; Guinhawa v. People, 505 Phil. 383 (2005); People v. Dy,
425 Phil 608 (2002); People v. Darilay, 465 Phil. 747 (2004); People v. Bustamante, 445 Phil. 345
(2003); People v. Catuiran, 397 Phil. 325 (2000); People v. Barro, 392 Phil. 857 (2000); Austria v.
Court of Appeals, 384 Phil. 408 (2000); Ladino v. People, 333 Phil. 254 (1996); People v. Parohinog, 83 See: Jalosjos v. Commission on Elections, supra note 80 (citing Lacuna v. Abes, supra); Aratea v.
185 Phil. 266 (1980); People v. Dimalanta, 92 Phil. 239 (1952). Commission on Elections, supra note 80; People v. Silvallana, supra note 71.

79 People v. Temporada, supra note 70. The case explained the difference between a "prescribed
penalty," "imposable penalty," and "penalty actually imposed."
80 See: Jalosjos v. Commission on Elections, G.R. Nos. 193237 and 193536, 9 October 2012, 683
SCRA 1;Aratea v. Commission on Elections, G.R. No. 195229, 9 October 2012, 683 SCRA 105; and
People v. Silvallana, supra note 71.
84 Jalosjos v. Commission on Elections, supra note 80.
85 Revised Penal Code, Art. 36. See: Jalosjos v. Commission on Elections, G.R. No. 205033, 18 June
2013, 698 SCRA 742; Monsanto v. Factoran, 252 Phil. 192 (1989); Lacuna v. Abes, supra note 81.
86 Supra note 58.

81 SeeArt. 27 of the Revised Penal Code, which provides: "Prisión correccional, suspensión, and 87 Supra note 72.
destierro.
88 Supra note 68.
— The duration of the penalties of prisión correccional, suspensión, and destierro shall be from six
months and one day to six years, except when the suspension is imposed as an accessory penalty, in
which case, its duration shall be that of the principal penalty" and Art. 33, which states: "Effects of the
Penalties of cont.

Suspension from Any Public Office, Profession or Calling, or the Right of Suffrage. — The suspension
from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the
offender from holding such office or exercising such profession or calling or right of suffrage during the
term of the sentence. The person suspended from holding public office shall not hold another having
similar functions during the period of his suspension." (Emphases supplied). Cf:Lacuna v. Abes, 133
Phil. 770 (1968). The Court En Banc explained therein that then Mayor-elect Benjamin Abes was
released from confinement on 7 April 1959 by virtue of a conditional pardon granted by the President of
the Philippines, remitting only the unexpired portion of the prison term and fine. It then clarified that
without the pardon, his maximum sentence would have been served on 13 October 1961. Accordingly,
the Court said that the accessory penalty of temporary absolute disqualification would have barred him
for seeking public office and for exercising his right to vote until 13 October 1961.

82 Jalosjos v. Commission on Elections, supra note 80.

 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PARAS, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the
respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Quezon
City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg. 22, in
Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent appellate
Court under CA-G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the offense charged, have been clearly
illustrated, in the Comment of the Office of the Solicitor General as official counsel for the public
respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not have
complete equipment that could make his venture workable. He also had another problem, and that while
he was going into this entrepreneurship, he lacked funds with which to purchase the necessary
equipment to make such business operational. Thus, petitioner, representing Ultra Sources International
Corporation, approached Corazon Teng, (private complainant) Vice President of Mancor Industries
(hereinafter referred to as Mancor) for his needed car repair service equipment of which Mancor was a
distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared that he had no sufficient
funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and
Management Corporation (LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS Finance could
accommodate petitioner and provide him credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up a warranty deposit equivalent
to thirty per centum (30%) of the total value of the pieces of equipment to be purchased, amounting to
P29,790.00. Since petitioner could not come up with such amount, he requested Joey Gomez on a
personal level to look for a third party who could lend him the equivalent amount of the warranty
deposit, however, unknown to petitioner, it was Corazon Teng who advanced the deposit in question, on
condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the Lessee shall
deposit with the Lessor such sum or sums specified in Schedule A to serve as security for the faithful
performance of its obligations.
This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period of
Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS
Finance would lease the garage equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the equipment were delivered to
petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the
petitioner, delivered the same to Corazon Teng. When the check matured, Petitioner requested through
Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2)
checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were the subject
of the four counts of the aforestated charges subject of the petition, were held momentarily by Corazon
Teng, on the request of Magno as they were not covered with sufficient funds. These checks were a)
Piso Bank Check Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and 006860
dated September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated September 28, 1983, in
the amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that petitioner became aware that Corazon Teng was the one
who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and promised to
pay the latter but the payment never came and when the four (4) checks were deposited they were
returned for the reason "account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner was
convicted for violations of BP Blg. 22 on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of B.P.
Blg. 22 and sentencing the accused to imprisonment for one year in each Criminal Case Nos. Q-35693,
Q-35695 and Q-35696 and to pay to complainant the respective amounts reflected in subject checks.
(Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is
intrigued about the outcome of the checks subject of the cases which were intended by the parties, the
petitioner on the one hand and the private complainant on the other, to cover the "warranty deposit"
equivalent to the 30% requirement of the financing company. Corazon Teng is one of the officers of
Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the high financing
scheme undertaken by the petitioner as lessee of the repair service equipment, which was arranged at the
instance of Mrs. Teng from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the
"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out"
made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It would
have been different if petitioner opted to purchase the pieces of equipment on or about the termination
of the lease-purchase agreement in which case he had to pay the additional amount of the warranty
deposit which should have formed part of the purchase price. As the transaction did not ripen into a
purchase, but remained a lease with rentals being paid for the loaned equipment, which were pulled out
by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to economic
constraints or business failure, then it is lawful and just that the warranty deposit should not be charged
against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not
his own account, it having remained with LS Finance, is to even make him pay an unjust "debt", to say
the least, since petitioner did not receive the amount in question. All the while, said amount was in the
safekeeping of the financing company, which is managed, supervised and operated by the corporation
officials and employees of LS Finance. Petitioner did not even know that the checks he issued were
turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge on her
instruction. This fact alone evoke suspicion that the transaction is irregular and immoral per se, hence,
she specifically requested Gomez not to divulge the source of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the "warranty
deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry and doubtful
legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the equipment in the
name of her corporation, Mancor, would be able to "sell or lease" its goods as in this case, and at the
same time, privately financing those who desperately need petty accommodations as this one. This
modus operandi has in so many instances victimized unsuspecting businessmen, who likewise need
protection from the law, by availing of the deceptively called "warranty deposit" not realizing that they
also fall prey to leasing equipment under the guise of a lease-purchase agreement when it is a scheme
designed to skim off business clients.
This maneuvering has serious implications especially with respect to the threat of the penal sanction of
the law in issue, as in this case. And, with a willing court system to apply the full harshness of the
special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund of
said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue that
after the termination of the lease agreement, the warranty deposit should be refundable in full to Mrs.
Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal use, is to
stretch the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of the banking system and the
legitimate public checking account user. It did not intend to shelter or favor nor encourage users of the
system to enrich themselves through manipulations and circumvention of the noble purpose and
objective of the law. Least should it be used also as a means of jeopardizing honest-to-goodness
transactions with some color of "get-rich" scheme to the prejudice of well-meaning businessmen who
are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function
of punishment is the protective (sic) of society against actual and potential wrongdoers." It is not clear
whether petitioner could be considered as having actually committed the wrong sought to be punished in
the offense charged, but on the other hand, it can be safely said that the actuations of Mrs. Carolina
Teng amount to that of potential wrongdoers whose operations should also be clipped at some point in
time in order that the unwary public will not be failing prey to such a vicious transaction (Aquino, The
Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society. This disappropriation
is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the
moral opinions of all. . . . That which we call punishment is only an external means of emphasizing
moral disapprobation the method of punishment is in reality the amount of punishment," (Ibid., P. 11,
citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People v. Piosca
and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the
objective of retribution of a wronged society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for value" as
this was absent, and therefore petitioner should not be punished for mere issuance of the checks in
question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of the accused, however, by the
open admission of the appellate court below, oven when the ultimate beneficiary of the "warranty
deposit" is of doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had been
extinguished by the termination of the leasing agreement — by the terms of which the warranty deposit
advanced by complainant was refundable to the accused as lessee — and that as the lessor L.S. Finance
neither made any liquidation of said amount nor returned the same to the accused, it may he assumed
that the amount was already returned to the complainant. For these allegations, even if true, do not
change the fact, admitted by appellant and established by the evidence, that the four checks were
originally issued on account or for value. And as We have already observed, in order that there may be a
conviction under the from paragraph of Section 2 of B.P. Blg 22 — with respect to the element of said
offense that the check should have been made and issued on account or for value — it is sufficient, all
the other elements of the offense being present, that the check must have been drawn and issued in
payment of an obligation.
Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of the
obligation in consideration of which the checks were issued, would have resulted in placing the case at
bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no satisfactory proof that
there was such an extinguishment in the present case. Appellee aptly points out that appellant had not
adduced any direct evidence to prove that the amount advanced by the complainant to cover the
warranty deposit must already have been returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the accused
is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the same court even
expected the petitioner-appellant to adduce evidence to show that he was not guilty of the crime
charged. But how can be produce documents showing that the warranty deposit has already been taken
back by Mrs. Teng when she is an officer of Mancor which has interest in the transaction, besides being
personally interested in the profit of her side-line. Thus, even if she may have gotten back the value of
the accommodation, she would still pursue collecting from the petitioner since she had in her possession
the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:
And the trail court concluded that there is no question that the accused violated BP Blg. 22, which is a
special statutory law, violations of which are mala prohibita. The court relied on the rule that in cases of
mala prohibita, the only inquiry is whether or not the law had been violated, proof of criminal intent not
being necessary for the conviction of the accused, the acts being prohibited for reasons of public policy
and the defenses of good faith and absence of criminal intent being unavailing in prosecutions for said
offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner,
i.e., whether they were drawn or issued "to apply on account or for value", as required under Section 1
of B.P. Blg, 22. When viewed against the following definitions of the catch-terms "warranty" and
"deposit", for which the postdated checks were issued or drawn, all the more, the alleged crime could
not have been committed by petitioner:
a) Warranty — A promise that a proposition of fact is true. A promise that certain facts are truly as they
are represented to be and that they will remain so: . . . (Black's Law Dictionary, Fifth Edition, (1979) p.
1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to know any particular purpose for which the
goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish
suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for
such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest or security for the performance of some
contract, to be forfeited if the depositor fails in his undertaking. It may be deemed to be part payment
and to that extent may constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a pledge to
intrust to the care of another.
The act of placing money in the custody of a bank or banker, for safety or convenience, to be withdrawn
at the will of the depositor or under rules and regulations agreed on. Also, the money so deposited, or
the credit which the depositor receives for it. Deposit, according to its commonly accepted and generally
understood among bankers and by the public, includes not only deposits payable on demand and for
which certificates, whether interest-bearing or not, may be issued, payable on demand, or on certain
notice or at a fixed future time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been
dishonored for the same reason . . . is inversely applied in this case. From the very beginning, petitioner
never hid the fact that he did not have the funds with which to put up the warranty deposit and as a
matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to whom
petitioner was introduced by Mrs. Teng. It would have been different if this predicament was not
communicated to all the parties he dealt with regarding the lease agreement the financing of which was
covered by L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby
ACQUITTED of the crime charged.
SO ORDERED. German G. Vilgera for Defendants-Appellees.

Padilla and Regalado, JJ., concur. SYLLABUS

Narvasa, C.J.,, concurs in the result. 1. CRIMINAL LAW; FALSIFICATION OF PUBLIC DOCUMENTS UNDER ARTICLE 171, R.P.C.;
PERJURY UNDER SECTION 129 OF C.A. No. 141, AS AMENDED; PRESCRIPTION; CASE AT
Nocon, J., is on leave. BAR. — While the informations sufficiently alleged the commission of falsification of public
documents under Art. 171 of the Revised Penal Code, the offenses alleged to have been committed have
Footnotes already prescribed since the preparation and submission of false affidavits in support of a petition or
claim respecting lands of the public domain is also punishable as perjury under Sec. 129 of
* Penned by Associate Justice Lorna S. Lombos-De La Fuente and concurred in by Associate Justices Commonwealth Act No. 141, as amended. Public Act No.3326, as amended by Act 3585 and Act 3763,
Jesus M. Elbinias and Luis L. Victor. provides that "violations penalized by special laws shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules: . . . (c) after eight years for those punished by
SECOND DIVISION imprisonment for two years or more, but less than six years; . . . so that perjury which is punishable by
imprisonment of from four (4) months and one (1) day to two (2) years and four (4) months prescribes
[G.R. No. L-23625. November 25, 1983.] after eight years. As it would be more favorable to the herein accused to apply Section 129 of
Commonwealth Act 141 and Act 3326,as amended in connection with the prescriptive period of the
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. MARIANO TERRADO, PEDRO offenses charged, the same should be applied. Considering, therefore, that the offenses were alleged to
TERRADO, and CASIMIRO FLORES, Defendants-Appellees. have been committed during the period from May 15, 1953, with respect to Criminal Case No.7613;
from May to August 18, 1952, with respect to Criminal Case No. 7614; and from November 16, 1951
[G.R. No. L-23626. November 25, 1983.] February 21, 1952, with respect to Criminal Case No.7615, and the informations were filed only on
March 13,1962, or more than eight (8) years after the said offenses were allegedly committed, the lower
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. REMEDIOS GUNDRAN, PEDRO court correctly ruled that the crimes in question had already prescribed.
TERRADO, CASIMIRO FLORES, and BRUNO GUNDRAN, Defendants-Appellees.
2. ID.; PENAL STATUTES; STRICTLY APPLIED AGAINST THE GOVERNMENT, LIBERALLY
[G.R. No. L-23627. November 25, 1983.] IN FAVOR OF THE ACCUSED. — Penal statutes, substantive and remedial or procedural are, by
consecrated rule, to be strictly applied against the government and liberally in favor of the accused.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. GERTRUDES OBO, PEDRO
TERRADO, CASIMIRO FLORES, and BRUNO GUNDRAN, Defendants-Appellees. AQUINO, J., dissenting:chanrob1es virtual 1aw library

The Solicitor General for Plaintiff-Appellee.

1. CRIMINAL LAW; PERJURY UNDER ARTICLE 183, RPC; UNDER ARTICLE 90 OF RPC,
CRIME PRESCRIBES IN TEN YEARS. — The crime is perjury under Article 183 of the Revised
Penal Code punished by arresto mayor maximum to prision correccional minimum, a correccional
penalty. The crime prescribes in ten-years under Article 90 of the Revised Penal Code. Therefore, the
ten-year prescriptive period under Article 90 should be applied, not the eight-year period prescribed in
Act No.3326 as amended by Acts Nos. 3585 and 3763. The crimes alleged in Criminal Cases Nos.7613
and 7614 were committed from May 15,1952 to February 2, 1953 and from May 28 to August 18, 1952,
respectively. As the information in those two cases were filed on March 13,1962, the ten-year period
had not yet elapsed. Said ten-year period had elapsed with respect to the crime alleged in Criminal Case
No.7615. Only that crime had prescribed.
DECISION
CONCEPCION, JR., J.:
APPEAL from the orders of the Court of First Instance of Camarines Sur, all dated April 15, 1963,
which dismissed Criminal Case No. 7613 of said court, entitled, "The People of the Philippines,
plaintiff, versus Mariano Terrado, Et Al., defendants" ; Criminal Case No. 7614, entitled: "The People
of the Philippines, plaintiff, versus Remedios Gundran, Et Al., defendants" ; and Criminal Case No.
7615, entitled: "The People of the Philippines, plaintiff, versus Gertrudes Obo, Et Al., defendants", on
the ground that "the crimes committed by the accused are either perjury defined under Section 129 of
the Commonwealth Act No. 141 and punished under Art. 183 of the Revised Penal Code, or offenses
relating to ‘unlawful occupation and destruction of public forest’ defined and punished under Section
2751 of the Revised Administrative Code, as amended by Acts 115 and 171" and had already
prescribed.
The appellant maintains that the facts charged in the informations constitute the crimes of falsification
of public documents, defined and penalized under Art. 171, par. 4, of the Revised Penal Code, and that
the criminal actions have not yet prescribed.
The records of the cases show that in November, 1951 and May, 1952, Gertrudes Obo, Remedios
Gundran, and Mariano Terrado applied for, and were issued free patents for contiguous parcels of land
situated in Barrio Paculago, Ragay, Camarines Sur, each containing an area of more than 23 hectares,
and more particularly known as Lots 7, 8 and 9 of Plan Psu-125902, respectively. As the said parcels of
land were allegedly forest land and, hence, not disposable, Mariano Terrado, Remedios Gundran, and
Gertrudes Obo were charged before the Court of First Instance of Camarines Sur on March 13, 1962, in
three separate informations for falsification of public documents, defined and penalized under Art. 171
of the Revised Penal Code, docketed therein as Criminal Case Nos. 7613, 7614, and 7615, respectively,
together with Pedro Terrado, a licensed private land surveyor; Casimiro Flores, a public land inspector
of the Bureau of Lands; and Bruno Gundran, the District Land Officer of District No. 10 of the Bureau
of Lands, for having conspired, confederated, cooperated together, and helped one another, through
false and fraudulent misrepresentations in wilfully, unlawfully, and feloniously with full knowledge of
their falsity, preparing or causing to be prepared, documents containing false narration of facts, more
particularly, the (1) applications for free patent; (2) notices of application for free patent; (3) final
inspection reports; and (4) first indorsements of District Land Officer Bruno Gundran, wherein they
made it appear to the Director of Lands and the Secretary of Agriculture and Natural Resources that the
applicants possessed all the necessary qualifications and had complied with all the requirements of law
to entitle them to a free patent, when in truth and in fact, as they all fully well knew, all their
manifestations were false and fraudulent and that the said applicants had not complied with any or all of
the requirements of the law to entitle them to a free patent. The informations further alleged that
Casimiro Flores and Bruno Gundran had taken advantage of their respective official positions in making
the untruthful statements. Before the arraignment, the defendants filed separate motions to quash the
informations on the ground that the crimes charged in the informations do not constitute the offense of
falsification of public documents, and that the same had already prescribed. After proper hearing, the
trial court dismissed the informations as aforesaid. Hence, the present
recourse.chanrobles.com:cralaw:red
While the informations sufficiently alleged the commission of falsification of public documents under
Art. 171 of the Revised Penal Code, the offenses alleged to have been committed have already
prescribed since the preparation and submission of false affidavits in support of a petition or claim
respecting lands of the public domain is also punishable as perjury under Sec. 129 of Commonwealth
Act No. 141, as amended, which reads, as follows:jgc:chanrobles.com.ph
"Sec. 129. Any person who present or causes to be presented, or cooperates in the presentation of, any
false application, declaration, or evidence, or makes or causes to be made or cooperates in the making of
a false affidavit in support of any petition, claim, or objection respecting lands of the public domain,
shall be deemed guilty of perjury and punished as such."cralaw virtua1aw library
Falsification of public documents is punishable by prision mayor and a fine not to exceed P5,000.00. 1
Prision mayor is an afflictive penalty, 2 and hence, prescribes in 15 years. 3 Perjury, upon the other
hand, is punishable by arresto mayor in its maximum period to prision correccional in its minimum
period, 4 or from four (4) months and one (1) day to two (2) years and four (4) months, which is
correctional in nature, 5 and prescribes in ten (10) years. 6 However, Public Act No. 3326, as amended
by Act 3585 and Act 3763, provides that "violations penalized by special laws shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules: (a) after a year for offenses
punished only by a fine or by imprisonment for not more than one month, or both; (b) after four years
for those punished by imprisonment for more than one month, but less than two years; (c) after eight
years for those punished by imprisonment for two years or more, but less than six years; and (d) after
twelve years for any other offense punished by imprisonment for six years or more, except the crime of
treason, which shall prescribe after twenty years", so that perjury which is punishable by imprisonment
of from four (4) months and one (1) day to two (2) years and four (4) months prescribes after eight
years.
Penal statutes, substantive and remedial or procedural are, by consecrated rule, to be strictly applied
against the government and liberally in favor of the accused. 7 As it would be more favorable to the
herein accused to apply Section 129 of Commonwealth Act 141 and Act 3326, as amended, in
connection with the prescriptive period of the offenses charged, the same should be applied.
Considering, therefore, that the offenses were alleged to have been committed during the period from
May 15, 1952 to February 2, 1953, with respect to Criminal Case No. 7613; from May 28, 1952 to
August 18, 1952, with respect to Criminal Case No. 7614; and from November 16, 1951 to February 21,
1952, with respect to Criminal Case No. 7615, and the informations were filed only on March 13, 1962,
or more than eight (8) years after the said offenses were allegedly committed, the lower court correctly
ruled that the crimes in question had already prescribed.
WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED. Without costs.
SO ORDERED.
Makasiar, Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.
Separate Opinions
AQUINO, J., dissenting:chanrob1es virtual 1aw library
I dissent with all due deference to Mr. Justice Concepcion’s opinion.
The crime is perjury under article 183 of the Revised Penal Code punished by arresto mayor maximum
to prision correccional minimum, a correccional penalty. The crime prescribes in ten years under article
90 of the Revised Penal Code.chanrobles lawlibrary : rednad
Therefore, the ten-year prescriptive period under article 90 should be applied, not the eight-year period
prescribed in Act No. 3326 as amended by Acts Nos. 3585 and 3763.
The crimes alleged in Criminal Cases Nos. 7613 and 7614 were committed from May 15, 1952 to
February 2, 1983 and from May 28 to August 18, 1952, respectively. As the informations in those two
cases were filed on March 13, 1962, the ten-year period had not yet elapsed.
Said ten year period had elapsed with respect to the crime alleged in Criminal Case No. 7615. Only that
crime had prescribed.
Endnotes:
1. Art. 171, Revised Penal Code.
2. Art. 25, Ibid
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44896 July 31, 1936
RODOLFO A. SCHNECKENBURGER, petitioner,
vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.
Cardenas and Casal for petitioner.
Office of the Solicitor-General Hilado for respondent.
ABAD SANTOS, J.:
The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June
11, 1934. He was subsequently charged in the Court of First Instance of Manila with the crime of
falsification of a private document. He objected to the jurisdiction of the court on the ground that both
under the Constitution of the United States and the Constitution of the Philippines the court below had
no jurisdiction to try him. His objection having been overruled, he filed this petition for a writ of
prohibition with a view to preventing the Court of First Instance of Manila from taking cognizance of
the criminal action filed against him.
In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of
Manila is without jurisdiction to try the case filed against the petitioner for the reason that under Article
III, section 2, of the Constitution of the United States, the Supreme Court of the United States has
original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and such
jurisdiction excludes the courts of the Philippines; and (2) that even under the Constitution of the
Philippines original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, is
conferred exclusively upon the Supreme Court of the Philippines.
This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to
the privileges and immunities of an ambassador or minister, but is subject to the laws and regulations of
the country to which he is accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not
exempt from criminal prosecution for violations of the laws of the country where he resides. (U. S. vs.
Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.) The substantial
question raised in this case is one of jurisdiction.
1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States
governs this case. We do not deem it necessary to discuss the question whether the constitutional
provision relied upon by the petitioner extended ex propio vigore over the Philippines. Suffice it to say
that the inauguration of the Philippine Commonwealth on November 15, 1935, has brought about a
fundamental change in the political and legal status of the Philippines. On the date mentioned the
Constitution of the Philippines went into full force and effect. This Constitution is the supreme law of
the land. Not only the members of this court but all other officers, legislative, executive and judicial, of
the Government of the Commonwealth, are bound by oath to support the Constitution. (Article XIII,
section 2.) This court owes its own existence to the great instrument, and derives all its powers
therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the
Constitution. The Constitution provides that the original jurisdiction of this court "shall include all cases
affecting ambassadors, other public ministers, and consuls." In deciding the instant case this court
cannot go beyond this constitutional provision.
2. It remains to consider whether the original jurisdiction thus conferred upon this court by the
Constitution over cases affecting ambassadors, other public ministers, and consuls, is exclusive. The
Constitution does not define the jurisdiction of this court in specific terms, but merely provides that "the
Supreme Court shall have such original and appellate jurisdiction as may be possessed and exercised by
the Supreme Court of the Philippine Islands at the time of the adoption of this Constitution." It then goes
on to provide that the original jurisdiction of this court "shall include all cases affecting ambassadors,
other public ministers, and consuls."
In the light of the constitutional provisions above adverted to, the question arises whether the original
jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the
adoption of the Constitution was exclusive.

The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the
time of the adoption of the Constitution was derived from section 17 of Act No. 136, which reads as
follows: The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari,
prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of
Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases
provided by law." Jurisdiction to issue writs of quo warranto, certiorari, mandamus, prohibition, and
habeas corpus was also conferred on the Courts of First Instance by the Code of Civil Procedure. (Act
No. 190, secs. 197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and
exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution
was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is the
same original jurisdiction vested in this court by the Constitution and made to include all cases affecting
ambassadors, other public ministers, and consuls, it follows that the jurisdiction of this court over such
cases is not exclusive.
The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of
the Supreme Court of the United States. The Constitution of the United States provides that the Supreme
Court shall have "original jurisdiction" in all cases affecting ambassadors, other public ministers, and
consuls. In construing this constitutional provision, the Supreme Court of the United States held that the
"original jurisdiction thus conferred upon the Supreme Court by the Constitution was not exclusive
jurisdiction, and that such grant of original jurisdiction did not prevent Congress from conferring
original jurisdiction in cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara,
supra; Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)
3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon
the Courts of the First Instance original jurisdiction in all criminal cases to which a penalty of more than
six months' imprisonment or a fine exceeding one hundred dollars might be imposed. (Act No. 136, sec.
56.) Such jurisdiction included the trial of criminal actions brought against consuls for, as we have
already indicated, consuls, not being entitled to the privileges and immunities of ambassadors or
ministers, are subject to the laws and regulations of the country where they reside. By Article XV,
section 2, of the Constitution, all laws of the Philippine Islands in force at the time of the adoption of the
Constitution were to continue in force until the inauguration of the Commonwealth; thereafter, they
were to remain operative, unless inconsistent with the Constitution until amended, altered, modified, or
repealed by the National Assembly. The original jurisdiction granted to the Courts of First Instance to
try criminal cases was not made exclusively by any, law in force prior to the inauguration of the
Commonwealth, and having reached the conclusion that the jurisdiction conferred upon this court by the
Constitution over cases affecting ambassadors, other public ministers, and consuls, is not an exclusive
jurisdiction, the laws in force at the time of the adoption of the Constitution, granting the Courts of First
Instance jurisdiction in such cases, are not inconsistent with the Constitution, and must be deemed to
remain operative and in force, subject to the power of the National Assembly to amend alter, modify, or
repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S. Supreme Court [Law. ed.], Adv.
Ops., vol. 80, No. 12, pp. 620, 623.)
We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner,
an that the petition for a writ of prohibition must be denied. So ordered.
Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.
Separate Opinions
LAUREL, J., concurring:
In my humble opinion, there are three reasons why the jurisdiction of this court over the petitioner in the
instant case is concurrent and not exclusive. The strictly legal reason is set forth in the preceding
illuminating opinion. The other reasons are (a) historical and based on what I consider is the (b) theory
upon which the grant of legislative authority under our Constitution is predicated.
(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors, other
public ministers, and consuls, has been taken from the Constitution of the United States, considerable
light would be gained by an examination of the history and interpretation thereof in the United States.
The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the Supreme
Court of the United States, the only national court under the plan, authority to hear and determine "by
way of appeal, in the dernier resort . . . all cases touching the rights of ambassadors . . . ." This clause,
however, was not approved. On July 18, the Convention of 1787 voted an extraordinarily broad
jurisdiction to the Supreme Court extending "to cases arising under laws passed by the general
legislature, and to such other questions as involve the national peace and harmony." This general
proposition was considerably narrowed by Randolph in his draft of May 29 which, however, did not
mention anything about ambassadors, other public ministers and consuls. But the Committee of Detail,
through Rutledge, reported on August 6 as follows: "Article XI, Section 3. The jurisdiction of the
Supreme Court shall extend . . . to all cases affecting ambassadors, other public ministers and consuls; . .
. In . . . cases affecting ambassadors, other public ministers and consuls, . . . this jurisdiction shall be
original . . . ."On September 12, the Committee on Style reported the provision as follows: "Article III,
Section 2. The judicial power shall extend . . . to all cases affecting ambassadors, other public ministers
and consuls . . . In (all) cases affecting ambassadors, other public ministers and consuls . . . the Supreme
Court shall have original jurisdiction." This provision was approved in the convention with hardly any
amendment or debate and is now found in clause 2, section 2 of Article III of the Constitution of the
United States. (The Constitution and the Courts, Article on "Growth of the Constitution", by William M.
Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal Convention of
1787, Yale University Press, 1934, 3 vols.; Warren, The Making of the Constitution, Boston, 1928, pp.
534-537.)
The word "original", however, was early interpreted as not exclusive. Two years after the adoption of
the Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24, 1789, 1 Stat., c. 20,
687) was approved by the first Congress creating the United States District and Circuit Courts which
were nisi prius courts, or courts of first instance which dealt with different items of litigation. The
district courts are now the only federal courts of first instance, the circuit courts having been abolished
by the Act of March 3, 1911, otherwise known as the Judicial Code. The Judiciary Act of 1787 invested
the district courts with jurisdiction, exclusively of the courts of the several states, of all suits against
consuls or vice-consuls and the Supreme Court of the United States with original but not exclusive
jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of the Act of
February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive jurisdiction was
repealed and, since then state courts have had concurrent jurisdiction with the federal courts over civil
or criminal proceedings against a consul or vice-consul. At the present time, the federal courts exercise
exclusive jurisdiction "of suits or proceedings against ambassadors or other or other public ministers, or
their domestics or domestic servants, as a court of law can have consistently with the law of nations; and
original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or
in which a consul or vice-consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting sec. 687
of the Act of September 24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial Code, 4th ed., by
Babbit, 1934, sec. 233.) The district courts now have original jurisdiction of all suits against consuls and
vice-consuls." (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A., sec. 41, subsec. 18; Hopkins'
Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par. 18.)
The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the Congress of the
United States. It has remained essentially unchanged for more than 145 years. It was prepared chiefly by
Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7, 1789) one of the ablest jurists in the
Constitutional Convention, who was later Chief Justice of the Supreme Court of the United States
(1796-1800). It is interesting to note that 10 of the 18 senators and 8 of the members of the House of the
first Congress had been among the 55 delegates who actually attended the Convention that adopted the
federal Constitution (Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99).
When, therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme Court
original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall be a party,
express legislative interpretation as to the meaning of the word "original" as not being exclusive was
definitely made and this interpretation has never been repudiated. As stated by the Supreme Court of the
United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437; 28 Law. ed., 482):
In view of the practical construction put on this provision of the Constitution by Congress, at the very
moment of the organization of the government, and of the significant fact that, from 1789 until now, no
court of the United States has ever in its actual adjudications determined to the contrary, we are unable
to say that it is not within the power of Congress to grant to the inferior courts of the United States
jurisdiction in cases where the Supreme Court has been vested by the Constitution with original
jurisdiction. It rests with the legislative department of the government to say to what extent such grants
shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high
privileges of those for whose protection the constitutional provision was intended. At any rate, we are
unwilling to say that the power to make the grant does not exist.
Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as observed by
Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the
question has given rise to some differences of opinion among the earlier members of the Supreme Court
of the United States. (See, for instance, dissenting opinion of Iredell, J., in U. S. vs. Ravara [1793], 2
Dall., 297; 1 Law. ed., 388.) Reliance was had on more or less general expressions made by Chief
Justice Marshall in the case of Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it
was said:
"If congress remains at liberty to give this court appellate jurisdiction, where the constitution has
declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared
it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance."
But Chief Justice Marshall who penned the decision in this case in 1803 had occasion later, in 1821, to
explain the meaning and extent of the pronouncements made in the Marbury case. He said:
In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed., 60), the single
question before the court, so far as that case can be applied to this, was, whether the legislature could
give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in
which no doubt respecting the construction of the article could possibly be raised. The court decided,
and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in
the reasoning of the court in support of this decision, some expressions are used which go far beyond it.
The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment
of the judicial power; and it is against this argument that the reasoning of the court is directed. They say
that, if such had been the intention of the article, "it would certainly have been useless to proceed farther
than to define the judicial power, and the tribunals in which it should be vested." The court says, that
such a construction would render the clause, dividing the jurisdiction of the court into original and
appellate, totally useless; that "affirmative words are often, in their operation, negative of other objects
than those which are affirmed; and, in this case (in the case of Marbury vs. Madison), a negative or
exclusive sense must be given to them, or they have no operation at all." "It cannot be presumed," adds
the court, "that any clause in the Constitution is intended to be without effect; and, therefore, such a
construction is inadmissible, unless the words require it." The whole reasoning of the court proceeds
upon the idea that the affirmative words of the clause giving one sort of jurisdiction, must imply a
negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and
this reasoning is advanced in a case to which it was strictly applicable. If in that case original
jurisdiction could have been exercised, the clause under consideration would have been entirely useless.
Having such cases only in its view, the court lays down a principle which is generally correct, in terms
much broader than the decision, and not only much broader than the reasoning with which that decision
is supported, but in some instances contradictory to its principle. The reasoning sustains the negative
operation of the words in that case, because otherwise the clause would have no meaning whatever, and
because such operation was necessary to give effect to the intention of the article. The effort now made
is, to apply the conclusion to which the court was conducted by that reasoning in the particular case, to
one in which the words have their full operation when understood affirmatively, and in which the
negative, or exclusive sense, is to be so used as to defeat some of the great objects of the article. To this
construction the court cannot give its assent. The general expressions in the case of Marbury vs.
Madison must be understood with the limitations which are given to them in this opinion; limitations
which in no degree affect the decision in that case, or the tenor of its reasoning. (Cohens vs. Virginia
[1821], 6 Wheat., 264, 400; 5 Law. ed., 257.)
What the Supreme Court in the case of Marbury vs. Madison held then was that Congress could not
extend its original jurisdiction beyond the cases expressly mentioned in the Constitution, the rule of
construction being that affirmative words of the Constitution declaring in what cases the Supreme Court
shall have original jurisdiction must be construed negatively as to all other cases. (See Ex parte
Vallandigham [1864], 1 Wall., 243, 252; 17 Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1 Wheat.,
305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.
It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis vs.
Packard (11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the state court of New
York over a civil suit against a foreign consul was denied solely on the ground that jurisdiction had been
conferred in such a case upon the district courts of the United States exclusively of the state courts. Such
a ground, says Justice Harlan in Bors vs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed.,
419), would probably not have been given had it been believed that the grant of original jurisdiction to
the Supreme Court deprived Congress of the power to confer concurrent original jurisdiction in such
cases upon subordinate courts of the Union, concluding that the decision in the case "may be regarded,
as an affirmance of the constitutionality of the Act of 1789, giving original jurisdiction in such cases,
also, to District Courts of the United States." Of the seven justices who concurred in the judgment in the
case of Davis, five participated in the decision of Osborn vs. Bank of the United States ([1824], 9
Wheat., 738; 6 Law. ed., 204), also penned by Chief Justice Marshall and relied upon as authority
together with Marbury vs. Madison, supra.
The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The question
involved in that case was whether the Circuit Court then existing had jurisdiction under the Constitution
and laws of the United States to hear and determine any suit whatever against the consul of a foreign
government. Justice Harlan said:
The Constitution declares that "The judicial power of the United States shall extend . . . to all cases
affecting ambassadors or other public ministers and consuls;" to controversies between citizens of a
state and foreign citizens or subjects; that "In all cases affecting ambassadors, other public ministers and
consuls, . . . the Supreme Court shall have original jurisdiction;" and that in all other cases previously
mentioned in the same clause "The Supreme Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions and under such regulations as the Congress shall make." The Judiciary Act of
1789 invested the District Courts of the United States with jurisdiction, exclusively of the courts of the
several States, of all suits against consuls or vice-consuls, except for offenses of a certain character; this
court, with "Original, but not exclusive, jurisdiction of all suits . . . in which a consul or vice-consul
shall be a party;" and the circuit courts with jurisdiction of civil suits in which an alien is a party. (l Stat.
at L., 76-80.) In this act we have an affirmance, by the first Congress — many of whose members
participated in the Convention which adopted the Constitution and were, therefore, conversant with the
purposes of its framers — of the principle that the original jurisdiction of this court of cases in which a
consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the
Union may be invested with jurisdiction of cases affecting such representatives of foreign governments.
On a question of constitutional construction, this fact is entitled to great weight.
In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the earlier
case of Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of Gittings, it was held
that neither public policy nor convenience would justify the Supreme Court in implying that Congress is
prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of
the United States. Chief Justice Taney said:
If the arrangement and classification of the subjects of jurisdiction into appellate and original, as
respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where
original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as
respects other courts whose jurisdiction is not there limited or prescribed, but left for the future
regulation of Congress? The true rule in this case is, I think, the rule which is constantly applied to
ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court,
does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is
nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate
jurisdiction of other courts of the United States on the same subject-matter. (See also U.S. vs. Ravara
[1793], 2 Dall., 297; 1 Law. ed., 388; United States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17; 31
Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct., 854; 34 Law. ed., 222, denying writ of
prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41 Fed., 732; Iasigi vs. Van de Carr [1897], 166
U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045; Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58;
Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St. Luke's Hospital vs. Barclay [C. C. N.
Y., 1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed., 65; State of Alabama
vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco [D. C. Cal., 1896], 76 Fed., 146.)
It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the jurisdiction of
circuit courts exclusive of state courts over aliens, no exception being made as to those who were
consuls, was maintained. (See 1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.)
From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III of the
Constitution of the United States it seems clear that the word "original" in reference to the jurisdiction
of Supreme Court of the United States over cases affecting ambassadors, other public ministers and
consuls, was never intended to be exclusive as to prevent the Congress from vesting concurrent
jurisdiction over cases affecting consuls and vice-consuls in other federal courts.
It should be observed that the Philadelphia Convention of 1787 placed cases affecting the official
representatives of foreign powers under the jurisdiction of Federal Supreme Court to prevent the public
peace from being jeopardized. Since improper treatment of foreign ambassadors, other public ministers
and consuls may be a casus belli, it was thought that the federal government, which is responsible for
their treatment under international law, should itself be provided with the means to meet the demands
imposed by international duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772;
vide, The Federalist, No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction
which international law establishes between ambassadors and other public ministers, on the one hand,
and consuls and other commercial representatives, on the other, Congress saw it fit to provide in one
case a rule different from the other, although as far as consuls and vice-consuls are concerned, the
jurisdiction of the Federal Supreme Court, as already observed, though original is not exclusive. But in
the United States, there are two judicial systems, independent one from the other, while in the
Philippines there is but one judicial system. So that the reason in the United States for excluding certain
courts — the state courts — from taking cognizance of cases against foreign representatives stationed in
the United States does not obtain in the Philippines where the court of the lowest grade is as much a part
of an integrated system as the highest court.
Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly Philippine courts are
not federal courts and they are not governed by the Judiciary Acts of the United States. We have a
judicial system of our own, standing outside the sphere of the American federal system and possessing
powers and exercising jurisdiction pursuant to the provisions of our own Constitution and laws.
The jurisdiction of our courts over consuls is defined and determined by our Constitution and laws
which include applicable treaties and accepted rules of the laws of nations. There are no treaties
between the United States and Uruguay exempting consuls of either country from the operation of local
criminal laws. Under the generally accepted principles of international law, declared by our Constitution
as part of the law of the nation (Art. II sec. 3, cl. 2), consuls and vice-consuls and other commercial
representatives of foreign nations do not possess the status and can not claim the privilege and
immunities accorded to ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent,
Commentaries, 44; Story on the Constitution, sec. 1660; Mathews, The American Constitutional System
[1932], 204, 205; Gittings vs. Crawford, C. C. Md., 1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal.,
639; 45 Pac., 676; 2 C. J., 9 R. C. L., 161.) The only provisions touching the subject to which we may
refer are those found in the Constitution of the Philippines. Let us trace the history of these provisions.
The report of the committee on the Judicial Power, submitted on September 29, 1934, did not contain
any provisions regarding cases affecting ambassadors, other public ministers and consuls. The draft of
the sub-committee of seven of the Sponsorship Committee, submitted on October 20, 1934, however,
contains the following provision:
Article X, Section 2. The Supreme Court shall have such original jurisdiction as may be possessed and
exercised by the present Supreme Court of the Philippine Islands at the time of the adoption of this
Constitution, which jurisdiction shall include all cases affecting ambassadors, other foreign ministers
and consuls . . . ." The Special Committee on the Judiciary, composed principally of Delegates Vicente
J. Francisco and Norberto Romualdez, included in its report the provisions which now appear in
sections 2 and 3 of Article VIII of the Constitution. Section 2 provides:
The National Assembly shall have the power to define, prescribed, and apportion the jurisdiction of the
various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting
ambassadors, other ministers and consuls . . . . And the second sentence of section 3 provides:
The original jurisdiction of the Supreme Court shall include all cases affecting ambassadors, other
public ministers and consuls.
The provision in our Constitution in so far as it confers upon our Supreme Court "original jurisdiction
over cases affecting ambassadors, other public ministers and consuls" is literally the same as that
contained in clause 2, section 2 of Article III of the United States Constitution.
In the course of the deliberation of the Constitutional Convention, some doubt was expressed regarding
the character of the grant of "original jurisdiction" to our Supreme Court. An examination of the records
of the proceedings of the Constitutional convention show that the framers of our Constitution were
familiar with the history of, and the judicial construction placed on, the same provision of the United
States Constitution. In order to end what would have been a protracted discussion on the subject, a
member of the Special Committee on the Judiciary gave the following information to the members of
the Convention:
. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer constar
que la interpretacion que debe dard a la ultima parte de dicho articulo es la misma interpretacion que
siempre se ha dado a semejante disposicion en la Constitucion de los Estados Unidos. (January
16,1935.) Without further discussion, the provision was then and there approved.

It thus appears that the provision in question has been given a well-settled meaning in the United States
— the country of its origin. It has there received definite and hitherto unaltered legislative and judicial
interpretation. And the same meaning was ascribed to it when incorporated in our own Constitution. To
paraphrase Justice Gray of the Supreme Court of the United States, we are justified in interpreting the
provision of the Constitution in the light of the principles and history with which its framers were
familiar. (United States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890,
cited with approval in Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49
Law. ed., 114.)
(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous adherence to
precedents. In referring to the history of this provision of our Constitution it is realized that historical
discussion while valuable is not necessarily decisive. Rationally, however, the philosophical reason for
the conclusion announced is not far to seek if certain principles of constitutional government are borne
in mind. The constitution is both a grant of, and a limitation upon, governmental powers. In the absence
of clear and unequivocal restraint of legislative authority, the power is retained by the people and is
exercisable by their representatives in their legislature. The rule is that the legislature possess plenary
power for all purposes of civil government. A prohibition to exercise legislative power is the exception.
(Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or restrictions are found
either in the language used, or in the purpose held in view as well as the circumstances which led to the
adoption of the particular provision as part of the fundamental law. (Ex parte Lewis, 45 Tex. Crim.
Rep., 1; 73 S. W., 811; 108 Am. St. Rep., 929.)
Subject to certain limitations, the Filipino people, through their delegates, have committed legislative
power in a most general way to the National Assembly has plenary legislative power in all matters of
legislation except as limited by the constitution. When, therefore, the constitution vests in the Supreme
Court original jurisdiction in cases affecting ambassadors, other public ministers and consuls, without
specifying the exclusive character of the grant, the National Assembly is not deprived of its authority to
make that jurisdiction concurrent. It has been said that popular government lives because of the
inexhaustible reservoir of power behind. It is unquestionable that the mass of powers of government is
vested in the representatives of the people, and that these representatives are no further restrained under
our system than by the express language of the instrument imposing the restraint, or by particular
provisions which, by clear intendment, have that effect. (Angara vs. Electoral Commission, p.139, ante.)
What the Constitution prohibits is merely the deprivation of the Supreme Court of its original
jurisdiction over cases affecting ambassadors, other public ministers and consuls and while it must be
admitted that original jurisdiction if made concurrent no longer remains exclusive, it is also true that
jurisdiction does not cease to be original merely because it is concurrent.
It is also quite true that concurrent original jurisdiction in this class of cases would mean the sharing of
the Supreme Court with the most inferior courts of cases affecting ambassadors, other public ministers
and consuls such that the Supreme Court would have concurrent jurisdiction with the lowest courts in
our judicial hierarchy, the justice of the peace of the courts, in a petty case for the instance, the violation
of a municipal ordinance affecting the parties just mentioned. However, no serious objection to these
result can be seen other that the misinterpreted unwillingness to share this jurisdiction with a court
pertaining to the lowest category in our judicial organization. Upon the other hand, the fundamental
reasoning would apply with equal force if the highest court of the land is made to take recognizance
exclusively of a case involving the violation of the municipal ordinance simply because of the character
of the parties affected. After alluding to the fact that the position of consul of a foreign government is
sometimes filled by a citizen of the United States (and this also true in the Philippines) Chief Justice
Taney, in Gittings vs. Crawford, supra, observed:
It could hardly have been the intention of the statesmen who framed our constitution to require that one
of our citizens who had a petty claim of even less than five dollars against another citizen, who had been
clothed by some foreign government with the consular office, should be compelled to go into the
Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been
intended, that the time of that court, with all its high duties to perform, should be taken up with the trial
of every petty offense that might be committed by a consul by any part of the United States; that consul,
too, being often one of our own citizens.
Probably, the most serious objection to the interpretation herein advocated is, that considering the actual
distribution of jurisdiction between the different courts in our jurisdiction, there may be cases where the
Supreme Court may not actually exercise either original — whether exclusive or concurrent — or
appellate jurisdiction, notwithstanding the grant of original jurisdiction in this class of cases to the
Supreme Court. If, for instance, a criminal case is brought either in a justice of the peace court or in a
Court of First Instance against a foreign consul and no question of law is involved, it is evident that in
case of conviction, the proceedings will terminate in the Court Appeals and will not reach the Supreme
Court. In this case, the Supreme Court will be deprived of all jurisdiction in a case affecting a consul
notwithstanding the grant thereto in the Constitution of original jurisdiction in all cases affecting
consuls. This is a situation, however, created not by the Constitution but by existing legislation, and the
remedy is in the hands of the National Assembly. The Constitution cannot deal with every casus
omissus, and in the nature of things, must only deal with fundamental principles, leaving the detail of
administration and execution to the other branches of the government. It rests with the National
Assembly to determine the inferior courts which shall exercise concurrent original jurisdiction with the
Supreme Court in cases affecting ambassadors, other public ministers and consuls, considering the
nature of the offense and irrespective of the amount of controversy. The National Assembly may as in
the United States (Cooley, Constitutional Law, 4th ed. [1931], sec. 4, p. 156), provide for appeal to the
Supreme Court in all cases affecting foreign diplomatic and consular representatives.
Before the approval of the Constitution, jurisdiction over consuls was exercisable by our courts. This is
more so now that the Independence Law and Constitution framed and adopted pursuant thereto are in
force. The fact that the National Assembly has not enacted any law determining what courts of the of
the Philippines shall exercise concurrent jurisdiction with the Supreme Court is of no moment. This can
not mean and should not be interpreted to mean that the original jurisdiction vested in the Supreme
Court by the Constitution is not concurrent with other national courts of inferior category.
The respondent judge of the Court of First Instance of the City of Manila having jurisdiction to take
cognizance of the criminal case brought against the petitioner, the writ of prohibition should be denied.
FIRST DIVISION
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and
one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge
followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the house of
Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to have been
seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who would, in due
time, become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge
Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges of
drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and
circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was
appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the
Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and
continued to stay in the Philippines. He headed the Iranian National Resistance Movement in the
Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose
Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several
Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from
plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and
other Iranian products was his business after the Khomeini government cut his pension of over
$3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff his
calling card, which showed that he is working at the US Embassy in the Philippines, as a special agent
of the Drug Enforcement Administration, Department of Justice, of the United States, and gave his
address as US Embassy, Manila. At the back of the card appears a telephone number in defendant’s own
handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for
the reason that the defendant was not yet there, he requested the restaurant people to x x x place the
same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was
paid. Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back
with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of
carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and
directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the
defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would
be leaving the Philippines very soon and requested him to come out of the house for a while so that he
can introduce him to his cousin waiting in a cab. Without much ado, and without putting on his shirt as
he was only in his pajama pants, he followed the defendant where he saw a parked cab opposite the
street. To his complete surprise, an American jumped out of the cab with a drawn high-powered gun. He
was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed
and after about 20 minutes in the street, he was brought inside the house by the defendant. He was made
to sit down while in handcuffs while the defendant was inside his bedroom. The defendant came out of
the bedroom and out from defendant's attaché case, he took something and placed it on the table in front
of the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and
likewise arrested Torabian, who was playing chess with him in the bedroom and both were handcuffed
together. Plaintiff was not told why he was being handcuffed and why the privacy of his house,
especially his bedroom was invaded by defendant. He was not allowed to use the telephone. In fact, his
telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up.’ He was
nevertheless told that he would be able to call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin,
his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and another
$8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a pair of
earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian
carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his TV and betamax
sets. He claimed that when he was handcuffed, the defendant took his keys from his wallet. There was,
therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified in
the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but
also in America and in Germany. His friends in said places informed him that they saw him on TV with
said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted the
motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on the
ground that he, not being a resident of the Philippines and the action being one in personam, was beyond
the processes of the court. The motion was denied by the court, in its order of 13 December 1988,
holding that the filing by Scalzo of a motion for extension of time to file an answer to the complaint was
a voluntary appearance equivalent to service of summons which could likewise be construed a waiver of
the requirement of formal notice. Scalzo filed a motion for reconsideration of the court order,
contending that a motion for an extension of time to file an answer was not a voluntary appearance
equivalent to service of summons since it did not seek an affirmative relief. Scalzo argued that in cases
involving the United States government, as well as its agencies and officials, a motion for extension was
peculiarly unavoidable due to the need (1) for both the Department of State and the Department of
Justice to agree on the defenses to be raised and (2) to refer the case to a Philippine lawyer who would
be expected to first review the case. The court a quo denied the motion for reconsideration in its order of
15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and
affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception of
evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit his
answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of
Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in the
discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the
United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order
of 25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No.
94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in
Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there
docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On 31 October 1990,
the Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and
ordering the dismissal of the complaint against him. Minucher filed a petition for review with this Court,
docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al."
(cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24
September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the
decision of the appellate court and remanded the case to the lower court for trial. The remand was
ordered on the theses (a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo for
lack of jurisdiction over his person without even considering the issue of the authenticity of Diplomatic
Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that Scalzo
committed the imputed acts in his personal capacity and outside the scope of his official duties and,
absent any evidence to the contrary, the issue on Scalzo’s diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in
the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was
a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or
not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R.
No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an entirely
different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of
the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter and
causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or not public
respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune from
civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal question
raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with
finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA records
on his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in
Manila. Having thus reserved his right to present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss
cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic
immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers in
the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having
ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual arrest."
Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila,
Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the case
pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to inform
the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were presented to
indicate that: (1) the Philippine government itself, through its Executive Department, recognizing and
respecting the diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic
status and his entitlement to all diplomatic privileges and immunities under the Vienna Convention; and
(2) the Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally
presented Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and
subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of the United
States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times
relevant to the complaint, and the special power of attorney executed by him in favor of his previous
counsel6 to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo
to be a member of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986, with the
cooperation of the Philippine law enforcement officials and in the exercise of his functions as member
of the mission, he investigated Minucher for alleged trafficking in a prohibited drug, and (c) that the
Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of duty in the
Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attaché of the
United States diplomatic mission and accredited with diplomatic status by the Government of the
Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of the United States
Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign
law enforcement agencies on narcotic and drug control programs upon the request of the host country,
2) to establish and maintain liaison with the host country and counterpart foreign law enforcement
officials, and 3) to conduct complex criminal investigations involving international criminal
conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and,
by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city
states of ancient Greece, among the peoples of the Mediterranean before the establishment of the Roman
Empire, and among the states of India, the person of the herald in time of war and the person of the
diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the 16th century,
when the earliest treatises on diplomatic law were published, the inviolability of ambassadors was
firmly established as a rule of customary international law.8 Traditionally, the exercise of diplomatic
intercourse among states was undertaken by the head of state himself, as being the preeminent
embodiment of the state he represented, and the foreign secretary, the official usually entrusted with the
external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in
the receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna
Convention, the functions of the diplomatic mission involve, by and large, the representation of the
interests of the sending state and promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of
states; and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff
of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and
service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the
members of the administrative, technical and service staff of the mission, are accorded diplomatic rank.
Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of
diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the
heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges
from all others. It might bear stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain administrative and notarial duties, such as the
issuance of passports and visas, authentication of documents, and administration of oaths, do not
ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the
reason that they are not charged with the duty of representing their states in political matters. Indeed, the
main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination
of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United
States diplomatic mission and was accredited as such by the Philippine Government. An attaché belongs
to a category of officers in the diplomatic establishment who may be in charge of its cultural, press,
administrative or financial affairs. There could also be a class of attaches belonging to certain ministries
or departments of the government, other than the foreign ministry or department, who are detailed by
their respective ministries or departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of
mission in his duties and are administratively under him, but their main function is to observe, analyze
and interpret trends and developments in their respective fields in the host country and submit reports to
their own ministries or departments in the home government.14 These officials are not generally
regarded as members of the diplomatic mission, nor are they normally designated as having diplomatic
rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791,
all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992.
The presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion
in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of
the diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting the
trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside
for the moment the issue of authenticity raised by the petitioner and the doubts that surround such claim,
in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days
from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a
first extension of time to file the Answer because the Departments of State and Justice of the United
States of America were studying the case for the purpose of determining his defenses, before he could
secure the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of argument
that such note is authentic, the complaint for damages filed by petitioner cannot be peremptorily
dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The
public respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it
should have been the most proper and appropriate recourse. It should not have been overwhelmed by the
self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet
been proved. The undue haste with which respondent Court yielded to the private respondent's claim is
arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attaché of the United States diplomatic mission and was, therefore, accredited
diplomatic status by the Government of the Philippines." No certified true copy of such "records," the
supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious
grant of immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the
Philippine government, specifically its Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post litem motam issuances. It might be recalled
that the privilege is not an immunity from the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.16 The
government of the United States itself, which Scalzo claims to be acting for, has formulated its
standards for recognition of a diplomatic agent. The State Department policy is to only concede
diplomatic status to a person who possesses an acknowledged diplomatic title and "performs duties of
diplomatic nature."17 Supplementary criteria for accreditation are the possession of a valid diplomatic
passport or, from States which do not issue such passports, a diplomatic note formally representing the
intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being over
twenty-one years of age, and performing diplomatic functions on an essentially full-time basis.18
Diplomatic missions are requested to provide the most accurate and descriptive job title to that which
currently applies to the duties performed. The Office of the Protocol would then assign each individual
to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to
conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If
it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he
committed the acts alleged in the complaint, the present controversy could then be resolved under the
related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign
from suit20 and, with the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.21 If the
acts giving rise to a suit are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium
- that all states are sovereign equals and cannot assert jurisdiction over one another.22 The implication,
in broad terms, is that if the judgment against an official would require the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being against the state itself, although it has not been
formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. x x x. It cannot for a moment be imagined that they were acting
in their private or unofficial capacity when they apprehended and later testified against the complainant.
It follows that for discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued. x x x As they
have acted on behalf of the government, and within the scope of their authority, it is that government,
and not the petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in
Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as
the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in
equity against a State officer or the director of a State department on the ground that, while claiming to
act for the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the
State within the constitutional provision that the State may not be sued without its consent. The rationale
for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an
injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and jurisdiction."27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as
it can be established that he is acting within the directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf
both involve officers and personnel of the United States, stationed within Philippine territory, under the
RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement between
the governments of the Philippines and of the United States (for the latter to send its agents and to
conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent or
imprimatur of the Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official
exchanges of communication between agencies of the government of the two countries, certifications
from officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as
well as the participation of members of the Philippine Narcotics Command in the "buy-bust operation"
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the Philippine government has
given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the
United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law
enforcers who would then be expected to make the arrest. In conducting surveillance activities on
Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal
witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope
of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to
help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur
Footnotes
1 Rollo, pp. 39-42.
2 Rollo. p. 51.
3 Linzag vs. CA, 291 SCRA 304.
4 Minucher vs. Court of Appeals, 214 SCRA 242.
5 For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155.
6 For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168.
7 Eileen Denza, "Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic Relations,"
2nd Edition, Claredon Press, Oxford, 1998, at 210.
8 Ibid.
9 Article 3 of the Vienna Convention enumerates the functions of the diplomatic mission as
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its nationals, within the
limits permitted by international law;
(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting
thereon to the Government of the sending State;
(e) promoting friendly relations between the sending State and the receiving State, and developing their
economic, cultural and scientific relations.
10 Ambassadors are diplomatic agents of the first class, who deal, as a rule with the Minister of Foreign
Affairs or the Secretary of State, as the case may be. (Melquiades J. Gamboa, "Elements of Diplomatic
and Consular Practice, A Glossary," Central Lawbook Publishing, Co., 1966, p. 19.)
11 Envoys are diplomatic agents of the second class. This is the title of the head of legation as
distinguished from an embassy, the head of which is called Ambassador Extraordinary and
Plenipotentiary. Like the Ambassador, the envoy is also accredited to the Head of State. (Gamboa, p.
190.)
12 Charges d' Affairs are either en titre or ad interim. Charges d' Affairs en titre are appointed on a
permanent basis and belong to the fourth class of diplomatic envoys, the other three being ambassadors,
ministers plenipotentiary and envoys extraordinary, and ministers resident. He is the head of the legation
in his own right and is not accredited to the head of State but to the foreign office. According to
Radloric, charges d' affairs are sometimes used to described a person who has been placed in custody of
the archives and other property of a mission in a country with which formal diplomatic relations are not
maintained. Charges d' affairs ad interim, in contrast are usually those second in command of the
diplomatic mission – minister, counselor or first secretary, who are only temporarily in charge of the
mission during the absence of the head of the mission. He is not accredited either to the Head of State or
the Foreign Office. (Gamboa, Ibid., pp. 51-52.)
13 The classification of diplomatic representatives was considered significant before because direct
communication with the head of state depended on the rank of the diplomat and, moreover, only
powerful states were regarded as entitled to send envoys of the highest rank. At present however,
diplomatic matters are usually discussed not with the head of state but with the foreign secretary
regardless of the diplomat's rank. Moreover, it has become the practice now for even the smallest and
the weakest states to send diplomatic representatives of the highest rank, even to the major powers.
(Cruz, International Law, 1985 Edition, p. 145.)
14 Gamboa, supra., pp. 32-33.
15 48 SCRA 242.
16 J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1963, p. 244.
17 Denza, supra., at 16.
18 Ibid.
19 Ibid., at 55.
20 Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 1948, p. 307-
308.
21 The international law on sovereign immunity of states from suit in the courts of another state has Republic of the Philippines
evolved from national court decisions with good deal of variance in perspectives. Even though national SUPREME COURT
cases have been the major source of pronouncements on sovereign immunity, it should be noted that Manila
these constitute evidence of customary international law now widely recognized. In the latter half of the
20th century, a great deal of consensus on what is covered by sovereign immunity appears to be EN BANC
emerging, i.e., that state immunity covers only acts which deal with the government functions of a state,
and excludes, any of its commercial activities, or activities not related to "sovereign acts." The G.R. No. L-5270 January 15, 1910
consensus involves a more defined differentiation between public acts (juri imperii) and private acts
(jure gestionis). (Gary L. Maris, "International Law, An Introduction," University Press of America, THE UNITED STATES, plaintiff-appellee,
1984, p. 119; D.W. Grieg, "International Law," London Butterworths, 1970, p. 221.) vs.
H. N. BULL, defendant-appellant.
The United States for example, does not claim immunity for its publicly owned or operated merchant
vessels. The Italian courts have rejected claims of immunity from the US Shipping Board, although a Bruce & Lawrence, for appellant.
state body, as it could not be identified with the American government on the ground that undertaking Office of the Solicitor-General Harvey, for appellee.
maritime navigation and business as a commercial enterprise do not constitute a sovereign act. (D.W.
Grieg, "International Law," London Butterworths, 1970, p. 221.) ELLIOTT, J.:

22 See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in Charles G. Fenwick, The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as
"International Law," New York, 3rd Edition (1948), p. 307. amended by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court,
where under proper assignments of error he contends: (1) that the complaint does not state facts
23 United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26 February 1990. sufficient to confer jurisdiction upon the court; (2) that under the evidence the trial court was without
jurisdiction to hear and determine the case; (3) that Act No. 55 as amended is in violation of certain
24 182 SCRA 644. provisions of the Constitution of the United States, and void as applied to the facts of this case; and (4)
that the evidence is insufficient to support the conviction.
25 At pp. 653-659.
The information alleges:
26 191 SCRA 713
That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then and
27 At pp. 727-728. there master of a steam sailing vessel known as the steamship Standard, which vessel was then and there
engaged in carrying and transporting cattle, carabaos, and other animals from a foreign port and city of
Manila, Philippine Islands; that the said accused H. N. Bull, while master of said vessel, as aforesaid, on
or about the 2d day of December, 1908, did then and there willfully, unlawfully, and wrongly carry,
transport, and bring into the port and city of Manila, aboard said vessel, from the port of Ampieng,
Formosa, six hundred and seventy-seven (677) head of cattle and carabaos, without providing suitable
means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to the
said animals, in this, to wit, that the said H. N. Bull, master, as aforesaid, did then and there fail to
provide stalls for said animals so in transit and suitable means for trying and securing said animals in a
proper manner, and did then and there cause some of said animals to be tied by means of rings passed
through their noses, and allow and permit others to be transported loose in the hold and on the deck of
said vessel without being tied or secured in stalls, and all without bedding; that by reason of the
aforesaid neglect and failure of the accused to provide suitable means for securing said animals while so
in transit, the noses of some of said animals were cruelly torn, and many of said animals were tossed
about upon the decks and hold of said vessel, and cruelly wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.
Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —
The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine,
or other animals, from one port in the Philippine Islands to another, or from any foreign port to any port
within the Philippine Islands, shall carry with them, upon the vessels carrying such animals, sufficient
forage and fresh water to provide for the suitable sustenance of such animals during the ordinary period
occupied by the vessel in passage from the port of shipment to the port of debarkation, and shall cause
such animals to be provided with adequate forage and fresh water at least once in every twenty-four
hours from the time that the animals are embarked to the time of their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof the
following:
The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine,
or other animals from one port in the Philippine Islands to another, or from any foreign port to any port
within the Philippine Islands, shall provide suitable means for securing such animals while in transit so
as to avoid all cruelty and unnecessary suffering to the animals, and suitable and proper facilities for
loading and unloading cattle or other animals upon or from vessels upon which they are transported,
without cruelty or unnecessary suffering. It is hereby made unlawful to load or unload cattle upon or
from vessels by swinging them over the side by means of ropes or chains attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to
comply with the provisions of section one, shall, for every such failure, be liable to pay a penalty of not
less that one hundred dollars nor more that five hundred dollars, United States money, for each offense.
Prosecution under this Act may be instituted in any Court of First Instance or any provost court
organized in the province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that the court was sitting at
a port where the cattle were disembarked, or that the offense was committed on board a vessel registered
and licensed under the laws of the Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any
provost court organized in the province or port in which such animals are disembarked, and there is
nothing inconsistent therewith in Act No. 136, which provides generally for the organization of the
courts of the Philippine Islands. Act No. 400 merely extends the general jurisdiction of the courts over
certain offenses committed on the high seas, or beyond the jurisdiction of any country, or within any of
the waters of the Philippine Islands on board a ship or water craft of any kind registered or licensed in
the Philippine Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This
jurisdiction may be exercised by the Court of First Instance in any province into which such ship or
water upon which the offense or crime was committed shall come after the commission thereof. Had
this offense been committed upon a ship carrying a Philippine registry, there could have been no doubt
of the Jurisdiction of the court, because it is expressly conferred, and the Act is in accordance with well
recognized and established public law. But the Standard was a Norwegian vessel, and it is conceded that
it was not registered or licensed in the Philippine Islands under the laws thereof. We have then the
question whether the court had jurisdiction over an offense of this character, committed on board a
foreign ship by the master thereof, when the neglect and omission which constitutes the offense
continued during the time the ship was within the territorial waters of the United States. No court of the
Philippine Islands had jurisdiction over an offenses or crime committed on the high seas or within the
territorial waters of any other country, but when she came within 3 miles of a line drawn from the
headlines which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of
principles became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int.,
sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction
of the territorial sovereign subject through the proper political agency. This offense was committed
within territorial waters. From the line which determines these waters the Standard must have traveled at
least 25 miles before she came to anchor. During that part of her voyage the violation of the statue
continued, and as far as the jurisdiction of the court is concerned, it is immaterial that the same
conditions may have existed while the vessel was on the high seas. The offense, assuming that it
originated at the port of departure in Formosa, was a continuing one, and every element necessary to
constitute it existed during the voyage across the territorial waters. The completed forbidden act was
done within American waters, and the court therefore had jurisdiction over the subject-matter of the
offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the objection to
the jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the
nationality of the ship. Every. Every state has complete control and jurisdiction over its territorial
waters. According to strict legal right, even public vessels may not enter the ports of a friendly power
without permission, but it is now conceded that in the absence of a prohibition such ports are considered
as open to the public ship of all friendly powers. The exemption of such vessels from local jurisdiction
while within such waters was not established until within comparatively recent times. In 1794,
Attorney-General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the effect that "the
laws of nations invest the commander of a foreign ship of war with no exemption from the jurisdiction
of the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also supported
by Lord Stowell in an opinion given by him to the British Government as late as 1820. In the leading
case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief Justice Marshall said
that the implied license under which such vessels enter a friendly port may reasonably be construed as
"containing exemption from the jurisdiction of the sovereign within whose territory she claims the rights
of hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which announced that
"the priviledge of exterritoriality accorded to vessels of war has been admitted in the law of nations; not
as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual
deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256; Ortolan,
Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and go freely. Local official exercise
but little control over their actions, and offenses committed by their crew are justiciable by their own
officers acting under the laws to which they primarily owe allegiance. This limitation upon the general
principle of territorial sovereignty is based entirely upon comity and convenience, and finds its
justification in the fact that experience shows that such vessels are generally careful to respect local laws
and regulation which are essential to the health, order, and well-being of the port. But comity and
convenience does not require the extension of the same degree of exemption to merchant vessels. There
are two well-defined theories as to extent of the immunities ordinarily granted to them, According to the
French theory and practice, matters happening on board a merchant ship which do not concern the
tranquillity of the port or persons foreign to the crew, are justiciable only by the court of the country to
which the vessel belongs. The French courts therefore claim exclusive jurisdiction over crimes
committed on board French merchant vessels in foreign ports by one member of the crew against
another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338,
339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has never
been admitted or claim by Great Britain as a right, although she has frequently conceded it by treaties.
(Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.) Writers who consider
exterritoriality as a fact instead of a theory have sought to restrict local jurisdiction, but Hall, who is
doubtless the leading English authority, says that —
It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so soon
as the latter enter the ports of a foreign state they become subject to the local jurisdiction on all points in
which the interests of the country are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel enters a foreign port
it is subject to the jurisdiction of the local authorities, unless the local sovereignty has by act of
acquiescence or through treaty arrangements consented to waive a portion of such jurisdiction. (15 Op.
Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review,
Vol. II, No. 5.) Chief Justice Marshall, in the case of the Exchange, said that —
When merchant vessels enter for the purpose of trade, in would be obviously in convinient and
dangerous to society and would subject the laws to continual infraction and the government to
degradation if such individual merchants did not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.
The Supreme Court of the United States has recently said that the merchant vessels of one country
visiting the ports of another for the purpose of trade, subject themselves to the laws which govern the
ports they visit, so long as they remain; and this as well in war as in peace, unless otherwise provided by
treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of
commerce and navigation between Sweden and Norway and the United States, of July 4, 1827, which
concedes to the consul, vice-consuls, or consular agents of each country "The right to sit as judges and
arbitrators in such differences as may arise between the captains and crews of the vessels belonging to
the nation whose interests are committed to their charge, without the interference of the local
authorities, unless the conduct of the crews or of the captains should disturb the order or tranquillity of
the country." (Comp. of Treaties in Force, 1904, p. 754.) This exception applies to controversies
between the members of the ship's company, and particularly to disputes regarding wages. (2 Moore,
Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the
country are affected by many events which do not amount to a riot or general public disturbance. Thus
an assault by one member of the crew upon another, committed upon the ship, of which the public may
have no knowledge whatever, is not by this treaty withdrawn from the cognizance of the local
authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the
vessel in the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the
United States district attorney was instructed by the Government to take the necessary steps to have the
proceedings dismissed, and the aid of the governor of Texas was invoked with the view to "guard
against a repetition of similar proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and
Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not appear that this "quarrel" was of
such a nature as to amount to a breach of the criminal laws of Texas, but when in 1879 the mate for the
Norwegian bark Livingston was prosecuted in the courts of Philadelphia County for an assault and
battery committed on board the ship while lying in the port of Philadelphia, it was held that there was
nothing in the treaty which deprived the local courts of jurisdiction. (Commonwealth vs. Luckness, 14
Phila. (Pa.), 363.) Representations were made through diplomatic channels to the State Department, and
on July 30, 1880, Mr. Evarts, Secretary of State, wrote to Count Lewenhaupt, the Swedish and
Norwegian minister, as follows:
I have the honor to state that I have given the matter careful consideration in connection with the views
and suggestion of your note and the provisions of the thirteenth article of the treaty of 1827 between the
United States and Sweden and Norway. The stipulations contained in the last clause of that article . . .
are those under which it is contended by you that jurisdiction is conferred on the consular officers, not
only in regard to such differences of a civil nature growing out of the contract of engagement of the
seamen, but also as to disposing of controversies resulting from personal violence involving offense for
which the party may be held amenable under the local criminal law.
This Government does not view the article in question as susceptible of such broad interpretation. The
jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges or
abitrators in such differences as may arise between captains and crews of the vessels, where such
differences do not involve on the part of the captain or crew a disturbance of the order or tranquillity of
the country. When, however, a complaint is made to a local magistrate, either by the captain or one or
more of the crew of the vessel, involving the disturbance of the order or tranquillity of the country, it is
competent for such magistrate to take cognizance of the matter in furtherance of the local laws, and
under such circumstances in the United States it becomes a public duty which the judge or magistrate is
not at liberty voluntarily to forego. In all such cases it must necessarily be left to the local judicial
authorities whether the procedure shall take place in the United States or in Sweden to determine if in
fact there had been such disturbance of the local order and tranquillity, and if the complaint is supported
by such proof as results in the conviction of the party accused, to visit upon the offenders such
punishment as may be defined against the offense by the municipal law of the place." (Moore, Int. Law
Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on board a
merchant vessel by one member of the crew against another which amount to a disturbance of the order
or tranquillity of the country, and a fair and reasonable construction of the language requires un to hold
that any violation of criminal laws disturbs the order or traquillity of the country. The offense with
which the appellant is charged had nothing to so with any difference between the captain and the crew.
It was a violation by the master of the criminal law of the country into whose port he came. We thus
find that neither by reason of the nationality of the vessel, the place of the commission of the offense, or
the prohibitions of any treaty or general principle of public law, are the court of the Philippine Islands
deprived of jurisdiction over the offense charged in the information in this case.
It is further contended that the complaint is defective because it does not allege that the animals were
disembarked at the port of Manila, an allegation which it is claimed is essential to the jurisdiction of the
court sitting at that port. To hold with the appellant upon this issue would be to construe the language of
the complaint very strictly against the Government. The disembarkation of the animals is not necessary
in order to constitute the completed offense, and a reasonable construction of the language of the statute
confers jurisdiction upon the court sitting at the port into which the animals are bought. They are then
within the territorial jurisdiction of the court, and the mere fact of their disembarkation is immaterial so
far as jurisdiction is concerned. This might be different if the disembarkation of the animals constituted
a constitutional element in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that the defendant
knowingly and willfully failed to provide suitable means for securing said animals while in transit, so as
to avoid cruelty and unnecessary suffering. The allegation of the complaint that the act was committed
willfully includes the allegation that it was committed knowingly. As said in Woodhouse vs. Rio
Grande R.R. Company (67 Texas, 416), "the word 'willfully' carries the idea, when used in connection
with an act forbidden by law, that the act must be done knowingly or intentionally; that, with
knowledge, the will consented to, designed, and directed the act." So in Wong vs. City of Astoria (13
Oregon, 538), it was said: "The first one is that the complaint did not show, in the words of the
ordinance, that the appellant 'knowingly' did the act complained of. This point, I think, was fully
answered by the respondent's counsel — that the words 'willfully' and 'knowingly' conveyed the same
meaning. To 'willfully' do an act implies that it was done by design — done for a certain purpose; and I
think that it would necessarily follow that it was 'knowingly' done." To the same effect is Johnson vs.
The People (94 Ill., 505), which seems to be on all fours with the present case.
The evidence shows not only that the defendant's acts were knowingly done, but his defense rests upon
the assertion that "according to his experience, the system of carrying cattle loose upon the decks and in
the hold is preferable and more secure to the life and comfort of the animals." It was conclusively
proven that what was done was done knowingly and intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary to
state the act or omission complained of as constituting a crime or public offense in ordinary and concise
language, without repitition. It need not necessarily be in the words of the statute, but it must be in such
form as to enable a person of common understanding to know what is intended and the court to
pronounce judgment according to right. A complaint which complies with this requirement is good.
(U.S. vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty to "provide
suitable means for securing such animals while in transit, so as to avoid all cruelty and unnecessary
suffering to the animals." The allegation of the complaint as it reads in English is that the defendant
willfully, unlawfully, and wrongfully carried the cattle "without providing suitable means for securing
said animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals in this .
. . that by reason of the aforesaid neglect and failure of the accused to provide suitable means for
securing said animals were cruelty torn, and many of said animals were tossed about upon the decks and
hold of said vessels, and cruelty wounded, bruised, and killed."
The appellant contends that the language of the Spanish text of the information does not charge him
with failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes" and
"medios adecuados." In view of the fact that the original complaint was prepared in English, and that the
word "suitable" is translatable by the words "adecuado," "suficiente," and "conveniente," according to
the context and circumstances, we determine this point against the appellant, particularly in view of the
fact that the objection was not made in the court below, and that the evidence clearly shows a failure to
provide "suitable means for the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto
seems to rest upon a fundamentally erroneous conception of the constitutional law of these Islands. The
statute penalizes acts and ommissions incidental to the transportation of live stock between foreign ports
and ports of the Philippine Islands, and had a similar statute regulating commerce with its ports been
enacted by the legislature of one of the States of the Union, it would doubtless have been in violation of
Article I, section 3, of the Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N.
S., 1071.)
But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The importance of the
question thus presented requires a statement of the principles which govern those relations, and
consideration of the nature and extent of the legislative power of the Philippine Commission and the
Legislature of the Philippines. After much discussion and considerable diversity of opinion certain
applicable constitutional doctrines are established.
The Constitution confers upon the United States the express power to make war and treaties, and it has
the power possessed by all nations to acquire territory by conquest or treaty. Territory thus acquired
belongs to the United States, and to guard against the possibility of the power of Congress to provide for
its government being questioned, the framers of the Constitution provided in express terms that
Congress should have the power "to dispose of and make all needful rules and regulations respecting
territory and other property belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the
acquisition of the territory by the United States, and until it is formally incorporated into the Union, the
duty of providing a government therefor devolves upon Congress. It may govern the territory by its
direct acts, or it may create a local government, and delegate thereto the ordinary powers required for
local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure. Congress has
provided such governments for territories which were within the Union, and for newly acquired territory
not yet incorporated therein. It has been customary to organize a government with the ordinary
separation of powers into executive, legislative, and judicial, and to prescribe in an organic act certain
general conditions in accordance with which the local government should act. The organic act thus
became the constitution of the government of the territory which had not been formally incorporated
into the Union, and the validity of legislation enacted by the local legislature was determined by its
conformity with the requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U. S.),
129.) To the legislative body of the local government Congress has delegated that portion of legislative
power which in its wisdom it deemed necessary for the government of the territory, reserving, however,
the right to annul the action of the local legislature and itself legislate directly for the territory. This
power has been exercised during the entire period of the history of the United States. The right of
Congress to delegate such legislative power can no longer be seriously questioned. (Dorr vs. U. S., 195
U. S., 138; U. S. vs. Heinszen, 206 U. S., 370, 385.)
The Constitution of the United States does not by its own force operate within such territory, although
the liberality of Congress in legislating the Constitution into contiguous territory tended to create an
impression upon the minds of many people that it went there by its own force. (Downes vs. Bidwell,
182 U. S., 289.) In legislating with reference to this territory, the power of Congress is limited only by
those prohibitions of the Constitution which go to the very root of its power to act at all, irrespective of
time or place. In all other respects it is plenary. (De Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell,
182 U. S., 244; Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U.
S., 197 U. S., 516.)
This power has been exercised by Congress throughout the whole history of the United States, and
legislation founded on the theory was enacted long prior to the acquisition of the present Insular
possessions. Section 1891 of the Revised Statutes of 1878 provides that "The Constitution and all laws
of the United States which are not locally inapplicable shall have the same force and effect within all the
organized territories, and in every Territory hereafter organized, as elsewhere within the United States."
When Congress organized a civil government for the Philippines, it expressly provided that this section
of the Revised Statutes should not apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United States as a result of
the war with Spain, the executive and legislative authorities have consistently proceeded in conformity
with the principles above state. The city of Manila was surrendered to the United States on August 13,
1898, and the military commander was directed to hold the city, bay, and harbor, pending the conclusion
of a peace which should determine the control, disposition, and government of the Islands. The duty
then devolved upon the American authorities to preserve peace and protect person and property within
the occupied territory. Provision therefor was made by proper orders, and on August 26 General Merritt
assumed the duties of military governor. The treaty of peace was signed December 10, 1898. On the 22d
of December, 1898, the President announced that the destruction of the Spanish fleet and the surrender
of the city had practically effected the conquest of the Philippine Islands and the suspension of the
Spanish sovereignty therein, and that by the treaty of peace the future control, disposition, and
government of the Islands had been ceded to the United States. During the periods of strict military
occupation, before the treaty of peace was ratified, and the interim thereafter, until Congress acted
(Santiago vs. Noueral, 214 U.S., 260), the territory was governed under the military authority of the
President as commander in chief. Long before Congress took any action, the President organized a civil
government which, however, had its legal justification, like the purely military government which it
gradually superseded, in the war power. The military power of the President embraced legislative,
executive personally, or through such military or civil agents as he chose to select. As stated by
Secretary Root in his report for 1901 —
The military power in exercise in a territory under military occupation includes executive, legislative,
and judicial authority. It not infrequently happens that in a single order of a military commander can be
found the exercise of all three of these different powers — the exercise of the legislative powers by
provisions prescribing a rule of action; of judicial power by determination of right; and the executive
power by the enforcement of the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as rapidly as conditions would
permit. After full investigation, the organization of civil government was initiated by the appointment of
a commission to which civil authority was to be gradually transferred. On September 1, 1900, the
authority to exercise, subject to the approval of the President. "that part of the military power of the
President in the Philippine Islands which is legislative in its character" was transferred from the military
government to the Commission, to be exercised under such rules and regulations as should be prescribed
by the Secretary of War, until such time as complete civil government should be established, or
congress otherwise provided. The legislative power thus conferred upon the Commission was declared
to include "the making of rules and orders having the effect of law for the raising of revenue by taxes,
customs duties, and imposts; the appropriation and expenditure of public funds of the Islands; the
establishment of an educational system to secure an efficient civil service; the organization and
establishment of courts; the organization and establishment of municipal and departmental government,
and all other matters of a civil nature which the military governor is now competent to provide by rules
or orders of a legislative character." This grant of legislative power to the Commission was to be
exercised in conformity with certain declared general principles, and subject to certain specific
restrictions for the protection of individual rights. The Commission were to bear in mind that the
government to be instituted was "not for our satisfaction or for the expression of our theoretical views,
but for the happiness, peace, and prosperity of the people of the Philippine Island, and the measures
adopted should be made to conforms to their customs, their habits, and even their prejudices, to the
fullest extent consistent with the accomplishment of the indispensable requisites of just and effective
government." The specific restrictions upon legislative power were found in the declarations that "no
person shall be deprived of life, liberty, or property without due process of law; that private property
shall not be taken for public use without just compensation; that in all criminal prosecutions the accused
shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the
accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person
shall be put twice in jeopardy for the same offense or be compelled in any criminal case to be a witness
against himself; that the right to be secure against unreasonable searches and seizures shall not be
violated; that neither slavery nor involuntary servitude shall exist except as a punishment for crime; that
no bill of attainder or ex post facto law shall be passed; that no law shall be passed abridging the
freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for a redress of grievances; that no law shall be made respecting an establishment of
religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner amendment to
the Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and judicial
powers necessary to govern the Philippine Islands . . . shall until otherwise provided by Congress be
vested in such person and persons, and shall be exercised in such manner, as the President of the United
States shall direct, for the establishment of civil government, and for maintaining and protecting the
inhabitants of said Islands in the free enjoyment of their liberty, property, and religion." Thereafter, on
July 4, 1901, the authority, which had been exercised previously by the military governor, was
transferred to that official. The government thus created by virtue of the authority of the President as
Commander in Chief of the Army and Navy continued to administer the affairs of the Islands under the
direction of the President until by the Act of July 1, 1902, Congress assumed control of the situation by
the enactment of a law which, in connection with the instructions of April 7, 1900, constitutes the
organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government which the President
had erected. Congress adopted the system which was in operation, and approved the action of the
President in organizing the government. Substantially all the limitations which had been imposed on the
legislative power by the President's instructions were included in the law, Congress thus extending to
the Islands by legislative act nor the Constitution, but all its provisions for the protection of the rights
and privileges of individuals which were appropriate under the conditions. The action of the President in
creating the Commission with designated powers of government, in creating the office of the Governor-
General and Vice-Governor-General, and through the Commission establishing certain executive
departments, was expressly approved and ratified. Subsequently the action of the President in imposing
a tariff before and after the ratification of the treaty of peace was also ratified and approved by
Congress. (Act of March 8, 1902; Act of July 1, 1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs.
U.S., 197 U.S., 419.) Until otherwise provided by law the Islands were to continue to be governed "as
thereby and herein provided." In the future the enacting clause of all statutes should read "By authority
of the United States" instead of "By the authority of the President." In the course of time the legislative
authority of the Commission in all parts of the Islands not inhabited by Moros or non-Christian tribes
was to be transferred to a legislature consisting of two houses — the Philippine Commission and the
Philippine Assembly. The government of the Islands was thus assumed by Congress under its power to
govern newly acquired territory not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional relation which
unites the States and Territories into the Union. The authority for its creation and maintenance is derived
from the Constitution of the United States, which, however, operates on the President and Congress, and
not directly on the Philippine Government. It is the creation of the United States, acting through the
President and Congress, both deriving power from the same source, but from different parts thereof. For
its powers and the limitations thereon the Government of the Philippines looked to the orders of the
President before Congress acted and the Acts of Congress after it assumed control. Its organic laws are
derived from the formally and legally expressed will of the President and Congress, instead of the
popular sovereign constituency which lies upon any subject relating to the Philippines is primarily in
Congress, and when it exercise such power its act is from the viewpoint of the Philippines the legal
equivalent of an amendment of a constitution in the United States.
Within the limits of its authority the Government of the Philippines is a complete governmental
organism with executive, legislative, and judicial departments exercising the functions commonly
assigned to such departments. The separation of powers is as complete as in most governments. In
neither Federal nor State governments is this separation such as is implied in the abstract statement of
the doctrine. For instance, in the Federal Government the Senate exercises executive powers, and the
President to some extent controls legislation through the veto power. In a State the veto power enables
him to exercise much control over legislation. The Governor-General, the head of the executive
department in the Philippine Government, is a member of the Philippine Commission, but as executive
he has no veto power. The President and Congress framed the government on the model with which
Americans are familiar, and which has proven best adapted for the advancement of the public interests
and the protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt the general constitutional
doctrined which are inherent in the system. Hence, under it the Legislature must enact laws subject to
the limitations of the organic laws, as Congress must act under the national Constitution, and the States
under the national and state constitutions. The executive must execute such laws as are constitutionally
enacted. The judiciary, as in all governments operating under written constitutions, must determine the
validity of legislative enactments, as well as the legality of all private and official acts. In performing
these functions it acts with the same independence as the Federal and State judiciaries in the United
States. Under no other constitutional theory could there be that government of laws and not of men
which is essential for the protection of rights under a free and orderly government.
Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that the
courts must consider the question of the validity of an act of the Philippine Commission or the
Philippine Legislature, as a State court considers an act of the State legislature. The Federal Government
exercises such powers only as are expressly or impliedly granted to it by the Constitution of the United
States, while the States exercise all powers which have not been granted to the central government. The
former operates under grants, the latter subject to restrictions. The validity of an Act of Congress
depends upon whether the Constitution of the United States contains a grant of express or implied
authority to enact it. An act of a State legislature is valid unless the Federal or State constitution
expressly or impliedly prohibits its enaction. An Act of the legislative authority of the Philippines
Government which has not been expressly disapproved by Congress is valid unless its subject-matter
has been covered by congressional legislation, or its enactment forbidden by some provision of the
organic laws.
The legislative power of the Government of the Philippines is granted in general terms subject to
specific limitations. The general grant is not alone of power to legislate on certain subjects, but to
exercise the legislative power subject to the restrictions stated. It is true that specific authority is
conferred upon the Philippine Government relative to certain subjects of legislation, and that Congress
has itself legislated upon certain other subjects. These, however, should be viewed simply as enactments
on matters wherein Congress was fully informed and ready to act, and not as implying any restriction
upon the local legislative authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16,
1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the Government of the
Philippine tends strongly to confirm the view that for purposes of construction the Government of the
Philippines should be regarded as one of general instead of enumerated legislative powers. The situation
was unusual. The new government was to operate far from the source of its authority. To relieve
Congress from the necessity of legislating with reference to details, it was thought better to grant
general legislative power to the new government, subject to broad and easily understood prohibitions,
and reserve to Congress the power to annul its acts if they met with disapproval. It was therefore
provided "that all laws passed by the Government of the Philippine Islands shall be reported to
Congress, which hereby reserves the power and authority to annul the same." (Act of Congress, July 1,
1902, sec. 86.) This provision does not suspend the acts of the Legislature of the Philippines until
approved by Congress, or when approved, expressly or by acquiescence, make them the laws of
Congress. They are valid acts of the Government of the Philippine Islands until annulled. (Miners Bank
vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has been
expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the United
States operated only upon the States of the Union. It has no application to the Government of the
Philippine Islands. The power to regulate foreign commerce is vested in Congress, and by virtue of its
power to govern the territory belonging to the United States, it may regulate foreign commerce with
such territory. It may do this directly, or indirectly through a legislative body created by it, to which its
power in this respect if delegate. Congress has by direct legislation determined the duties which shall be
paid upon goods imported into the Philippines, and it has expressly authorized the Government of the
Philippines to provide for the needs of commerce by improving harbors and navigable waters. A few
other specific provisions relating to foreign commerce may be found in the Acts of Congress, but its
general regulation is left to the Government of the Philippines, subject to the reserved power of
Congress to annul such legislation as does not meet with its approval. The express limitations upon the
power of the Commission and Legislature to legislate do not affect the authority with respect to the
regulation of commerce with foreign countries. Act No. 55 was enacted before Congress took over the
control of the Islands, and this act was amended by Act No. 275 after the Spooner amendment of March
2, 1901, was passed. The military government, and the civil government instituted by the President, had
the power, whether it be called legislative or administrative, to regulate commerce between foreign
nations and the ports of the territory. (Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin,
21 Wall. (U.S.), 73, 87.) This Act has remained in force since its enactment without annulment or other
action by Congress, and must be presumed to have met with its approval. We are therefore satisfied that
the Commission had, and the Legislature now has, full constitutional power to enact laws for the
regulation of commerce between foreign countries and the ports of the Philippine Islands, and that Act
No. 55, as amended by Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be left
to the judgment of the master of the ship. It is a question which must be determined by the court from
the evidence. On December 2, 1908, the defendant Bull brought into and disembarked in the port and
city of Manila certain cattle, which came from the port of Ampieng, Formosa, without providing
suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary
suffering to said animals, contrary to the provisions of section 1 of Act No. 55, as amended by section 1
of Act No. 275. The trial court found the following facts, all of which are fully sustained by the
evidence:
That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as the Standard,
for a period of six months or thereabouts prior to the 2d day of December, 1908, was engaged in the
transportation of cattle and carabaos from Chines and Japanese ports to and into the city of Manila,
Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid, brought The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with
into the city of Manila, aboard said ship, a large number of cattle, which ship was anchored, under the subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is
directions of the said defendant, behind the breakwaters in front of the city of Manila, in Manila Bay, affirmed. So ordered.
and within the jurisdiction of this court; and that fifteen of said cattle then and there had broken legs and
three others of said cattle were dead, having broken legs; and also that said cattle were transported and Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.
carried upon said ship as aforesaid by the defendant, upon the deck and in the hold of said ship, without
suitable precaution and care for the transportation of said animals, and to avoid danger and risk to their
lives and security; and further that said cattle were so transported abroad said ship by the defendant and
brought into the said bay, and into the city of Manila, without any provisions being made whatever upon
said decks of said ship and in the hold thereof to maintain said cattle in a suitable condition and position
for such transportation.

That a suitable and practicable manner in which to transport cattle abroad steamship coming into Manila
Bay and unloading in the city of Manila is by way of individual stalls for such cattle, providing
partitions between the cattle and supports at the front sides, and rear thereof, and cross-cleats upon the
floor on which they stand and are transported, of that in case of storms, which are common in this
community at sea, such cattle may be able to stand without slipping and pitching and falling,
individually or collectively, and to avoid the production of panics and hazard to the animals on account
or cattle were transported in this case. Captain Summerville of the steamship Taming, a very intelligent
and experienced seaman, has testified, as a witness in behalf of the Government, and stated positively
that since the introduction in the ships with which he is acquainted of the stall system for the
transportation of animals and cattle he has suffered no loss whatever during the last year. The defendant
has testified, as a witness in his own behalf, that according to his experience the system of carrying
cattle loose upon the decks and in the hold is preferable and more secure to the life and comfort of the
animals, but this theory of the case is not maintainable, either by the proofs or common reason. It can
not be urged with logic that, for instance, three hundred cattle supports for the feet and without stalls or
any other protection for them individually can safely and suitably carried in times of storm upon the
decks and in the holds of ships; such a theory is against the law of nature. One animal falling or
pitching, if he is untied or unprotected, might produce a serious panic and the wounding of half the
animals upon the ship if transported in the manner found in this case.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-922 November 8, 1902
TRINIDAD H. PARDO DE TAVERA, complainant-appellee,
vs.
VICENTE GARCIA VALDEZ, defendant-appellant.
Vicente Garcia Valdez, appellant.
Felipe G. Calderon, for appellee.
LADD, J.:
Both the private prosecutor and the defendant have appealed from the judgment of the court below,
finding the defendant guilty of the offense of injurias graves under article 457 and 458 of the Penal
Code, and sentencing him to pay a fine of 4,000 pesetas, with subsidiary imprisonment and costs.
(1) No brief has been filed by the defendant, nor did he appear, either personally or by counsel, on the
day fixed for the argument, and under the rules of this court the motion that his appeal be dismissed for
lack of prosecution might be granted, but we have nevertheless deemed it proper to consider the whole
case upon the merits. The evidence shows that the defendant was in September, 1901, the editor of
"Miau," a periodical published and circulated in Manila, and that an article containing the alleged
injurious matter was published in the issue of that periodical of September 15, 1901. The article is
couched throughout in grossly abusive language, and in terms not capable of being misunderstood;
charges the private prosecutor, who had been then recently appointed a member of the United States
Philippine Commission, with having displayed cowardice at the time of the murder of his mother and
sister and with having subsequently entered into intimate political relations with the assassin. The article
contains other statements and imputations of a derogatory character, but we base our opinion upon that
portion to which reference has been made. Injurias graves are classified by article 457 of the Penal Code
under four heads, as follows: "(1) The imputation of a crime of the class not subject to prosecution de
oficio. (2) That of a vice or moral shortcoming, the consequences of which might seriously injure the
reputation, credit, or interests of the person offended. (3) Injurias which by reason of their nature,
occasion, or circumstances are commonly regarded as insulting. (4) Those which may be reasonably
classified as grave in view of the condition, dignity, and personal circumstances of the injured party and
the offender." The statements in question do not involve the imputation of a crime, and, possibly, not of
a vice or moral shortcoming in the strict sense, but they are obviously of a character calculated to bring
the person attacked into public obloquy and contempt, and specially so in the present case in view of the
position of the private prosecutor as a high official of the Government, and they are therefore clearly
comprehended under Nos. 3 and 4 or the article cited. The defendant's offer to prove the truth of the
statements was properly rejected. (Penal Code, art. 460.) The conviction must be sustained.
2. The question raised by the appeal of the private prosecutor relates solely to the propriety of the
punishment imposed by the court below. Article 458 of the Penal Code provides that "injurias graves,
put into writing and made public [which is the present case] shall be punished with the penalty of
destierro in its medium to its maximum degree, and a fine of from 625 to 6,250 pesetas." Act No. 277 of
the United States Philippine Commission "defining the law of libel." etc., and reforming the preexisting
Spanish law on the subject of calumnia and injurias affixes to the offense of publishing a libel as defined
in the act the punishment of "a fine not exceeding $2,000 or imprisonment for not exceeding one year,
or both." Section 13 of the same act provides as follows: "All laws and parts of laws now in force, so far
as the same may be in conflict herewith, are hereby repealed: Provided, That nothing herein contained
shall operate as a repeal of existing laws in so far as they are applicable to pending actions or existing
causes of action, but as to such causes of action or pending actions existing laws shall remain in full
force and effect." This act went into effect October 24, 1901, subsequent to the publication of the article
in question, and during the pendency of the prosecution. By article 22 of the Penal Code "Penal laws
shall have a retroactive effect in so far as they favor the person guilty of a crime of misdemeanor," etc.
The court below in fixing the punishment proceeded upon the theory that by the operation of this
general rule the penalty prescribed in the Penal Code for the offense in question was necessarily
modified and could not be inflicted in its full extension. In so doing we think the court overlooked or
improperly construed the proviso in the section of Act No. 277, above cited, by virtue of which the
previously existing law on the subject covered by the act is left intact in all its parts as respects pending
actions or existing causes of action. The language is general and embraces, we think, all actions,
whether civil, criminal, or of a mixed character. In this view of the case we have no occasion to consider
the question argued by counsel for the private prosecutor as to whether the provisions of Act No. 277
respecting the penalty are more favorable to the accused than those of the former law or otherwise. The
punishment must be determined exclusively by the provisions of the former law.
It is urged by counsel that the official position of the private prosecutor should be considered as an
aggravating circumstance under Penal Code, article 10, No. 20. We are inclined to think that in the view
we have taken of the case this circumstance is qualificative rather than generic. (Penal Code, art.
78.)lawphi1.net
The result, then, is that the penalty prescribed by article 458, paragraph 1, of the Penal Code should be
applied in its medium grade, and in view of all the circumstances of the case we fix the penalty as four
years of destierro and a fine of 4,000 pesetas, with subsidiary liability to one day's banishment for every
12 ½ pesetas not paid, and the costs of both instances. The judgment of the court below will be modified
in accordance with this opinion, and the record will be returned to that court for the execution of the
sentence as thus modified. So ordered.
Arellano, C.J., Torres, Cooper, Smith, Willard, and Mapa, JJ., concur.
EN BANC
[G.R. No. 9527. August 23, 1915. ]
THE UNITED STATES, Plaintiff-Appellee, v. JOSE TAMPARONG ET AL., Defendants-Appellants.
The appellants in their own behalf.
Acting Attorney-General Harvey for Appellee.
SYLLABUS
1. JUSTICES OF THE PEACE; APPEALS IN THIRD INSTANCE; EXTENT OF REVIEW. — Under
the Spanish criminal procedure, appeals from justices’ courts were allowed only to Courts of First
Instance. By section 43 of General Orders No. 58, this procedure has been so amended that appeals can
be taken to the Supreme Court in such cases when the validity or constitutionality of a statute is
involved. This amendment of the procedure does not carry with it the right of review of the facts, but is
confined to the purpose stated — that is, of determining the validity or constitutionality of the statute or
ordinance upon which the judgment was predicated. Former cases reviewed, showing that such has
uniformly been the interpretation of section 43 by this court.
DECISION
TRENT, J. :
The defendants were convicted by the justice of the peace of Baguio for having played the game of
chance called "monte" in violation of Ordinance No. 35. They appealed to the Court of First Instance,
where they were again tried and convicted upon the same charge. An appeal was allowed to this court
because the validity of Ordinance No, 35 was drawn in question during the trial of the cause in the court
below.
Two questions are raised by this appeal: (1) Is Ordinance No. 35 valid, and (2) is this court required
under the law to examine the evidence for the purpose of determining the guilt or innocence of the
defendants?
The first question is answered in the affirmative by this court in the case of the United States v. Joson
(26 Phil. Rep., 1). The cases are on all fours, and a further discussion of this branch of the case is
unnecessary.
With reference to the second question, it is said that by reason of the defendants’ having in the lower
court questioned the legality of Ordinance No. 35, for the violation of which they have been convicted,
this case has been brought to us in all its details of law and fact, including the evidence taken at the trial,
on which the Court of First Instance founded its judgment touching the guilt and condemning the
defendants. While, on the other hand, it is contended that the questions of fact, which we are [not]
authorized to examine, are those which are essential to be examined for the purpose of determining the
legality of Ordinance No. 35 and the penalties provided for therein, and no other.
At the outset it may be well to briefly outline the criminal procedure in force in this jurisdiction prior to
the promulgation on the 23d day of April, 1900, of General Orders No. 58.
The royal order dated December 17, 1886, directing the execution of the royal decree of September 4,
1884, wherein it was ordered that the Penal Code in force in the Peninsula, as amended in accordance
with the recommendations of the code committee, be published and applied in the Philippine Islands, as
well as the Provisional Law of Criminal Procedure which accompanied it. These two laws, having been
published in the Official Gazette of Manila on March 13 and 14, 1887, became effective four months
thereafter.
According to the provisions of Rule 1 of the above-mentioned provisional law, the justices of the peace,
or gobernadorcillos, had original jurisdiction over the offenses set forth in Book 3 of the Penal Code.
Rule 2 provided that "when the justice of the peace or the gobernadorcillo receives notice that there has
been committed any one of the offenses provided for in Book 3 of the Penal Code which can be
prosecuted by the Government, he shall issue summons for an oral trial to the complainant, if any, to the
alleged culprit, and to the witnesses who may be able to testify as to the facts, fixing the day and hour
for holding the trial. If this (the trial) takes place at the residence of the promotor fiscal, he shall also be
summoned." Rule 3 provided that the same procedure should be followed in those cases which can only
be prosecuted at the instance of a private party, except that the promotor fiscal was not cited.
Neither the Provisional Law, the criminal procedural laws of the Peninsula, nor the autos acordados
prescribed any special form for the complaint to be presented to the justice of the peace or the
gobernadorcillo. As to this point, it seems that the Compilation of the Laws of Criminal Procedure of
1879 was applicable. Articles 405, 406, and 412 read: "ART. 405. The complaint made in writing must
be signed by the complainant, and if he cannot do so, by some other person at his request. The authority
or official who receives it shall rubricate and seal every page in the presence of the person who presents
it, which also he may do himself or through another person at his request.
"ART. 406. When the complaint is oral, it shall be reduced to writing by the authority or official who
receives it, wherein, in the form of a declaration, shall be set forth such information as the complainant
may have regarding the act complained of and the circumstances thereof, and both shall sign it at the
bottom. If the complainant cannot sign his name, some other person shall do so at his request."cralaw
virtua1aw library
"ART. 412. Criminal cases that are not instituted by the Government must begin with a
complaint."cralaw virtua1aw library
The oral trial referred to in Rule 2 was held within three days next following the date when the justice of
the peace or the gobernadorcillo received information that the offense had been committed (Rule 4), the
procedure being that provided for in Rule 9, which reads: "The trial shall be public, beginning with the
reading of the complaint, if any there be, followed by the examination of the witnesses summoned and
the introduction of such other evidence as the complainant, accuser, and public prosecutor, if he take
part, may request and the justice of the peace or the gobernadorcillo may regard as pertinent.
Immediately thereafter the accused shall be given a hearing, the witnesses who appear in his defense
shall be examined, and such other evidence as the justice or the gobernadorcillo may declare to be
admissible shall be adduced. The parties shall forthwith make such pleas as they think expedient in
support of their respective contentions, the first to speak being the public prosecutor, if he take part, then
the private complainant, and finally the accused.
"The representative of the public prosecutor shall attend the trial for misdemeanors, whenever he is
cited thereto, in accordance with Rule 2."cralaw virtua1aw library
A record of the trial was made, wherein the whole procedure was clearly and succinctly set forth, and
signed by all the parties participating in the trial. (Rule 11.)
After trial and rendition of judgment, either of the parties could appeal to the Court of First Instance
within the first day next following that on which notice of the rendition of judgment was served. The
appeal suspended the judgment. After the appeal had been allowed, the justice of the peace or the
gobernadorcillo remitted to the Court of First Instance the original record and cited the parties to appear
within the period of five days before the appellate court. This time could be extended, if the
circumstances of the case required. (Rule 14.) If the appellant appealed, a day was fixed for the trial; but
if he did not appear, the appeal was dismissed. (Rule 15.) Rule 16 provides the procedure for the trial in
the second instance. This rule reads: "The hearing at the trial shall be public, and all the proceedings in
the case shall be read therein; then the parties or their attorneys may speak in their turn, and thereafter
the judgment shall be pronounced and communicated to them.
"A record of the trial shall be drawn up in the same manner as fixed by Rule 11."cralaw virtua1aw
library
Rule 17 reads: "In this second instance no evidence may be admitted other than that which, offered in
the first instance, was not taken for reasons independent of the will of the parties who had offered
it."cralaw virtua1aw library
Rule 19 provides: "The judgment of the Court of First Instance will be executory, and there will be no
recourse from the same except that of responsibility before the audiencia del territorio."cralaw
virtua1aw library
The provisions of General Orders No. 58 pertinent to the question under consideration, are as
follows:jgc:chanrobles.com.ph
"SEC. 43. From all final judgments of the Courts of First Instance or courts of similar jurisdiction, and
in all cases in which the law now provides for appeals from said courts an appeal may be taken to the
Supreme Court as hereinafter prescribed. Appeals shall also lie from the final judgments of justices of
the peace in criminal cases to the courts of the next superior grade, and the decisions of the latter
thereon shall be final and conclusive except in cases involving the validity or constitutionality of a
statute, wherein appeal may be made to the Supreme Court."cralaw virtua1aw library
"SEC. 54. All cases appealed from a justice’s court shall be tried in all respects anew in the court to
which the same are appealed; but on the hearing of such appeals it shall not be necessary, unless the
appeal shall involve the constitutionality or legality of a statute, that a written record of the proceedings
be kept; but shall be sufficient if the appellate court keeps a docket of the proceedings in the form
prescribed in the next preceding section."cralaw virtua1aw library
Section 43 has been amended by section 34 of Act No. 1627 so as to read as
follows:jgc:chanrobles.com.ph
"From all final judgments of the Court of First Instance or courts of similar jurisdiction, and in all cases
in which the law now provides for appeals from said courts, an appeal may be taken to the Supreme
Court as hereinafter prescribed. The convicted party may appeal from any final judgment of a justice of
the peace in a criminal cause to the Court of First Instance by filing a notice of appeal with such justice
within fifteen days after the entry of judgment. Upon such notice being so filed, the justice shall forward
to the Court of First Instance all original papers and a transcript of all docket entries in the cause, and
the provincial fiscal shall thereupon take charge of the cause in behalf of the prosecution. The judgment
of the Court of First Instance in such appeals shall be final and conclusive, except in cases involving the
validity or constitutionality of a statute or the constitutionality of a municipal or township
ordinance."cralaw virtua1aw library
In view of the fact that this court took the view, prior to the passage of Act No. 1627, that the military
governor and the framers of General Orders No. 58 intended by the use of the word "statute" found in
section 43 (supra) to include "ordinances," the amendment of this section by section 34 of that Act does
not affect the issue in the instant case. The original section provided that "an appeal may be made to the
Supreme Court in cases involving the validity or constitutionality of a statute," and the section, as
amended, authorizes appeals to the Supreme Court in the same class of cases.
It is urged that as the civil-law term "appeal" is used in section 43 (supra), we must apply the same rule
of construction that the courts in England and the United States have ,almost uniformly applied to the
same term and thus derive an unqualified review of both the law and the facts. This doubtless would be
a correct position in some jurisdictions in the American Union, as there the technical civil-law meaning
of the term "appeal" is followed. The reason for so doing is set forth in the case of Nashville Ry. &
Light Co. v. Bunn (168 Fed. Rep., 862), wherein the court said:jgc:chanrobles.com.ph
"The distinction between a ’writ of error,’ which brings up the record in an action of law for a review of
questions of law only, and an ’appeal,’ which involves a rehearing upon both the facts and the law, is
vital. These remedies have their origin and functions in the inherent difference between courts of law
and courts of equity, differences which are recognized in the Constitution of the United States and the
laws of Congress. The ’writ of error’ is a common law writ, and searches the record for errors of law in
the final judgment of a common-law court. If error is found, the judgment awards a venire facias de
novo. The ’appeal’ is a procedure which comes to us from the civil law along with the fundamentals
which go to make up the jurisprudence of a court of equity. Its office is to remove the entire cause, and
it subjects the transcript to a scrutiny of fact and law and is in substance a new trial."cralaw virtua1aw
library
Under the system of procedure which obtains in the Philippine Islands, both legal and equitable relief is
dispensed in the same tribunal. We have no courts of law and courts of equity as they are known and
distinguished in England and the United States. All cases (law and equity) are presented and tried in the
same manner, including their final disposition in the Supreme Court. Therefore, the word "appeal," as
used in section 43 (supra), does not necessarily imply the removal of the cause from one tribunal to
another in its entirety, subjecting the facts, as well as the law, to a review or a retrial, but it is to be
interpreted by the ordinary rules of construction.
The intention of the framers of General Orders No. 58 i8 the law. In order to ascertain that intention the
provisions of the order must be construed in the light of existing law and the circumstances at the time
of its promulgation.
At the time General Orders No. 58 went into effect, criminal cases originating in Courts of First
Instance came to the audiencia in their entirety, subjecting both the law and the facts to a review or
retrial. But the audiencia, or Philippine Supreme Court, could not review the judgment of a Court of
First Instance in any case tried on appeal from courts of justices of the peace wherein the latter courts
had jurisdiction. Such judgments were final and conclusive. The aggrieved party could go no further
with the case. The only recourse he had was that mentioned in Rule 19 (supra). The penalties for
violations of the provisions of Book 3 of the Penal Code over which justices of the peace then had
jurisdiction were generally arreto or arresto menor and small fines. This was the law in force at the time
section 43 (supra) was framed and these were the conditions confronting the framers of that section at
that time. What changes did the section make?
Section 43 authorizes appeals to the Supreme Court from all final judgments of Courts of First Instance
"and in all cases in which the law now provides for appeals from said courts." This part of the section is
limited to judgments rendered in criminal cases originating in Courts of First Instance. This is
necessarily true because the latter part of the section makes the decisions of the "courts of next superior
grade (which were Courts of First Instance) rendered in cases appealed from justices’ courts final and
conclusive, except in cases involving the validity or constitutionality of a statute." The result is that the
former procedure was amended by section 43 so as to also authorize appeals to the Supreme Court in the
cases mentioned in the latter part thereof when the validity or constitutionality of a statute was drawn in
question. To this extent only was the former procedural law changed in so far as, the question at issue is
concerned. Among the reasons which induced the lawmakers to make this change was the fact that the
jurisdiction of justices of the peace was "extended to all offenses which the Penal Code designates as
punishable by arresto mayor in all of its grades." (Sec. 108.)
If we had found the ordinance attacked in the case at bar to be illegal and unconstitutional, the judgment
appealed from would necessarily have to be set aside and defendants would have no interest in
presenting to us the evidence taken at the trial. But we have maintained the legality of that ordinance,
and in so doing have we exhausted our powers and reached the limit of our inquiry? Section 43 does not
expressly so limit our power. Neither does it expressly authorize us to review the testimony touching the
guilt or innocence of the defendants.
The distinction between the illegality of a penalty imposed by a municipal corporation and the
correctness of that imposed by a justice of the peace under a municipal ordinance, and between the
illegality of the ordinance and that of the proceedings or actions taken under it, is plain and broad. An
ordinance may, from the standpoint of the regularity of all the proceedings leading up to and inclusive
of its enactment, be absolutely faultless and yet the ultimate act done or enacted may be inherently or
intrinsically illegal or unconstitutional. On the other hand, the latter may be perfectly unassailable and
yet the ordinance be illegal or unconstitutional by reason of some fact or circumstance connected with
its passage. It may, for instance, have been presented in a wrong manner, at a wrong time, or not voted
for as directed by law. It is to facts of this class or character that section 43 refers when it says "the latter
thereon shall be final and conclusive except in cases involving the validity or constitutionality of a
statute."cralaw virtua1aw library
Such appears to be the meaning and intention manifested from the provisions of the latter part of section
43, already quoted, especially when they are considered in the light of the former practice above
indicated. Under that practice no appeals whatever were allowed to the Supreme Court from judgments
of Courts of First Instance in cases originating in justices’ courts. We must assume that the framers of
section 43 had knowledge of this practice and its effects. The framers desired to amend this practice to
the extent only of providing a way by which statutory questions, which might arise in these cases, could
be reviewed by the Supreme Court. This object could be very imperfectly obtained, if, when the court
assumed jurisdiction of such a case, it would not only determine the statutory questions, but also inquire
into and determine every other question raised during the progress of the trial. In effect, this would
entirely destroy the former practice, because it would render it possible to bring every case here in its
entirety. All that would be necessary would be to raise some statutory question, whether material to the
decision of the case or not, and the right of appeal and reexamination of the whole case would be
assured. Clearly, no such result was intended, nor is it manifest from the language employed in section
43. But it is urged that our ruling in this matter "involves the legal absurdity of disjoining a single case
and turning over one fragment to one court and another parcel to another court." (Elliott on Appellate
Procedure, sec. 17.) In this section the author is speaking of appellate jurisdiction where the distinction
between law and equity is rigidly maintained. He says: "Where a court of equity retains jurisdiction for
one purpose, it will retain it for all purposes." The same author recognizes a difference in the two
systems of appellate jurisdiction — that is, the one where the distinction between law and equity is
maintained and, the other, where the two are blended. (Section 24.) In this last section the author says:
"In some respects an appeal under the code system may be less comprehensive in its scope than an
appeal under the old system," citing Judge Curtis, wherein he said that "it is evident that an appeal under
the code system does not necessarily bring up the entire case." In view of the fact that the code system
prevails in the Philippine Islands, blending legal and equitable rights and providing for one remedial
system, our holding in the instant case is not in conflict with Elliot on Appellate Procedure.
It is also urged that the rule announced in the case of Loeb v. . Columbia Township Trustees (179 U. S.,
472), and followed in the late case of Boise Artesian Hot and Cold Water Co., Ltd. v. Boise City (230
U. S., 84), is directly opposed to our holding in the case under consideration. These two cases went to
the Supreme Court of the United States on writs of error directly from the circuit courts in accordance
with the provisions of section 5 of the Judiciary Act of March 3, 1891. This section provides "that
appeals or writs of error may be taken from the district courts, or from the existing circuit courts, direct
to the Supreme Court in the following cases: . . ." Here Congress maintains the distinction between
"appeals" and "writs of error." In each case above cited the Supreme Court of the United States held that
it not only had jurisdiction to review the constitutional questions, but also every other question properly
arising. The court then proceeded to review all legal questions in those cases and not questions of fact,
for the reason that the cases were before the court on writs of error. Even granting that the Supreme
Court has jurisdiction under the Act above mentioned to review both questions of law and fact in cases
appealed to that court, such holding would not be antagonistic to our views in the instant case for the
reason that our power to review the facts touching the guilt or innocence of the defendants must be
found in section 43 of General Orders No. 58. Our view is, as above indicated, that the framers of that
section did not intend to confer upon this court that power. And all must admit that the military
governor at the time he promulgated General Orders No. 58 had the power to limit or restrict the
jurisdiction of the Supreme Court to statutory questions in cases of the character of the one under
consideration.
Our ruling in the case at bar is fully supported by the adjudicated cases of this Supreme Court.
In the case of Trinidad v. Sweeney (4 Phil. Rep., 531), the court said: "Upon the facts stated in the
complaint the plaintiff is entitled to prosecute an appeal to this court; but upon such appeal the only
question to be considered will be that of the validity or invalidity of the ordinance. We cannot review
the evidence nor pass upon any other question of law which may appear in the record."cralaw virtua1aw
library
In United States v. Trinidad (7 Phil. Rep., 325), the defendant was convicted in the municipal court of
the city of Manila for violating a municipal ordinance. He appealed to the Court of First Instance, where
he was again convicted. An appeal was allowed to the Supreme Court on the ground that the
constitutionality or validity of the ordinance was drawn in question. On appeal the appellant insisted,
among other things, that the trial court erred in deciding the case without first consulting with the two
assessors. This court held the ordinance valid and, after quoting with approval the language used in the
case of Trinidad v. Sweeney (supra), said: "In cases where the appeal involves the constitutionality or
validity of a statute, the disagreement of the assessors with the judgment of the Court of First Instance
on appeal does not authorize this court to review the evidence, but its decision shall be confined only to
the question of the validity of the Act or statute in question, as occurs in the present case."cralaw
virtua1aw library
In the case of The United States v. Espiritusanto (23 Phil. Rep., 610), we examined the facts touching
the due enactment of the ordinance. After so doing, the ordinance was held valid, but the facts touching
the guilt or innocence of the appellant were not gone into.
In United States v. Ten Yu (24 Phil. Rep., 1), the court used this language at page 12: "While we have
discussed at length each of the assignments of error made by the appellants, nevertheless, the only
question, in fact, presented by the appeal under the law, in the first instance, is whether or not the
ordinance under which the defendants were sentenced is legal. Having concluded that said ordinance is
legal and within the express powers of the Municipal Board to enact, the appeal must be dismissed, with
costs in this instance against the appellants in equal parts."cralaw virtua1aw library
In United States v. Abendan (24 Phil. Rep., 165), the court, after quoting the testimony of a sanitary
inspector and after holding the ordinance valid, said: "The evidence in the case, which is undisputed, is
sufficient, in our judgment, to warrant the order complained of. It does not appear therefrom, the
defendant himself having introduced substantially no proof in the case, that he was treated differently
from other persons in that locality, or that he was required to do a thing that the others had not been
required to do, or that he had in any way been discriminated against in the application of this ordinance
to the facts of his case, or that its application was oppressive or unreasonable in this particular instance.
"The judgment appealed from is affirmed, with costs."cralaw virtua1aw library
Considering this language, together with that used in the opinion wherein the court said, "The sole
question raised on this appeal is that presented by the claim of the appellant that the ordinance in
question is unreasonable and oppressive," it is clear that the court did not intend to hold that it had
authority to examine into the question of the guilt or innocence of the Appellant.
In United States v. Co Chee (R. G. No. 8269, not reported) the appellants were convicted of a violation
of Ordinance No. 152 of the city of Manila and, having drawn in question the validity of that ordinance,
an appeal was allowed to this court. In disposing of this case the court said: "Precisely this question was
presented in the case of the United States v. Ten Yu (24 Phil. Rep., 1), just decided by this court, in
which we held that said Ordinance No. 152 of the city of Manila was valid and constitutional. That case
is on all fours with the present one, and the judgment of conviction of the Court of First Instance is
hereby affirmed, with costs against the appellants, on the authority of that case."cralaw virtua1aw
library
No attempt was made to examine or pass upon the testimony touching the guilt or innocence of the
appellants.
In United States v. Tiu Un (R. G., No. 7804); United States v. Gaw Kee (R. G., No. 7816); United States
v. Lim Cui (R. G., No. 7815); United States v. See Kea (R. G., No. 7828); United States v. Go Tin (R.
G., No. 7481); United States v. Sia Kim (R. G., No. 7716); United States v. Lim Baey (R. G., No.
7915); United States v. Li Tia (R. G., No. 7826); and United States v. Tam Bak (R. G., No. 7814), not
reported, the appellants were convicted for a violation of Municipal Ordinance No. 152 of the city of
Manila and, having drawn in question the validity of that ordinance, appeals were allowed to this court.
This court, upon the authority of the United States v. Ten Yu (supra), dismissed the appeals and directed
the records to be returned to the court below for execution of the sentences.
Other cases might be cited, but we think the above are sufficient to show that we have followed in the
instant case the uniform holding of this court for more than ten years. In fact, the court has not, since its
organization, held in any case that it has the power to review the facts touching the guilt of an accused
person in cases of the character of the one under consideration.
Some discussion has arisen in regard to the language we should use in the final disposition of cases
wherein the statute or ordinance has been upheld. Sometimes we say, "The judgment is affirmed," and at
other times we have said "the appeal is dismissed," etc. The result is the same and it is of little
importance which expression we use. But, as the case comes to us on appeal for the purpose of testing
the legality of the statute or ordinance upon which the judgment rests and as the judgment cannot be
executed without the sanction of this court, it is perfectly legal to "affirm" or "reverse" the judgment as Republic of the Philippines
the case may be. SUPREME COURT
Manila
For the foregoing reasons the judgment appealed from is affirmed, with costs against the defendants. So
ordered. SECOND DIVISION

Arellano, C.J., Torres, Johnson and Carson, JJ., concur. G.R. Nos. 187912-14 January 31, 2011

Separate Opinions JOEY P. MARQUEZ, Petitioner,

vs.
THE SANDIGANBAYAN 5th DIVISION and THE OFFICE OF THE SPECIAL PROSECUTOR,
ARAULLO, J., concurring:chanrob1es virtual 1aw library Respondents.

I agree to the judgment contained in the foregoing, for the reason that this question has already been DECISION
settled by former decisions of this court.
MENDOZA, J.:

Through this petition for certiorari, prohibition and mandamus with prayer for the issuance of temporary
restraining order and/or writ of preliminary injunction,1 petitioner Joey P. Marquez (Marquez) assails
the 1] February 11, 2009 Resolution2 of the 5th Division of the Sandiganbayan (SB-5th Division) in
Criminal Case Nos. 27903, 27904 and 27905; and its 2] May 20, 2009 Resolution3 denying his motion
for reconsideration.

In the assailed issuances, the SB-5th Division denied Marquez’s Motion to Refer Prosecution’s
Evidence for Examination by the Questioned Documents Section of the National Bureau of
Investigation (NBI).

From the records, it appears that as a result of the Report on the Audit of Selected Transactions and
Walis Ting-ting for the City of Parañaque for the years 1996 to 1998, conducted by the Special Audit
Team of the Commission on Audit (COA), several anomalies were discovered involving Marquez, then
City Mayor and Chairman of the Bids and Awards committee of Parañaque City; and Ofelia C. Caunan
(Caunan), Head of the General Services Office of said city.
It was found that, through personal canvass and without public bidding, Marquez and Caunan secured
the procurement of several thousand rounds of bullets of different calibers that were grossly overpriced
from VMY Trading, a company not registered as an arms and ammunitions dealer with either the
Firearms and Explosives Division of the Philippine National Police (PNP) or the Department of Trade
and Industry (DTI).
Finding the transactions anomalous, the COA Special Audit Team issued Notices of Disallowances for
the overpriced ammunitions. Marquez and Caunan sought reconsideration of the findings of the team,
but their plea was denied. Aggrieved, they elevated the matter to the COA but their appeal was denied.
At the Office of the Ombudsman (OMB), in answer to the charges filed against them, Marquez and
Caunan filed their Joint Counter Affidavit4 with the Evaluation and Preliminary Investigation Bureau of
said office. In the said affidavit, the two insisted on the propriety of the transactions and raised the
pendency of their appeal with the COA.
Having found probable cause to indict them for violation of Section 3 (e) of Republic Act (R.A.) No.
3019, the OMB, through the Office of the Special Prosecutor (OSP), filed three (3) informations5
against Marquez and Caunan. The cases were raffled to the Fourth Division of the Sandiganbayan (SB-
4th Division).
Before arraignment, on November 24, 2003, alleging discovery of the forged signatures, Marquez
sought referral of the disbursement vouchers, purchase requests and authorization requests to the NBI
and the reinvestigation of the cases against him.6 These were denied by the OSP.
Before the SB-4th Division, to prove its case, the prosecution presented five (5) witnesses, namely: 1]
COA State Auditor IV Fatima Valera Bermudez; 2] Elenita Pracale, Chief, Business Permit and
Licensing Office, Parañaque City; 3] Benjamin Cruz; 4] P/Insp. Rolando C. Columna, Legal Officer,
PNP Firearms and Explosive Division; and 5] Emerito L. Lejano, President, Guns Empire.
Documentary evidence consisting of disbursement vouchers, purchase requests and authorization
requests were also adduced.
On January 13, 2006, the prosecution filed its Formal Offer of Evidence consisting of Exhibits "A" to
"FFFF," and their sub-markings. All of the evidence offered were admitted by the anti-graft court on
March 22, 2006.
After the prosecution rested, Caunan testified and partly presented evidence for her defense.
Marquez, on the other hand, in his Omnibus Motion dated April 1, 2008, moved, among others, for the
inhibition of Associate Justice Gregory Ong (Justice Ong) and Associate Justice Jose Hernandez
(Justice Hernandez) and for the referral of the disbursement vouchers, purchase requests and
authorization to the NBI. Associate Justice Hernandez and Associate Justice Ong inhibited themselves
but the request of Marquez that the questioned documents be referred to the NBI was not acted upon.
On May 20, 2008, Justice Ong and Justice Hernandez recused themselves from further participating in
the cases. The cases were then raffled to the SB-5th Division.
Thereafter, on July 4, 2008, Marquez filed the subject Motion to Refer Prosecution’s Evidence for
Examination by the Questioned Documents Section of the National Bureau of Investigation. In his
motion, he again insisted that his purported signatures on the vouchers were forged.
By way of Comment/Opposition to the motion, the prosecution argued that its documentary exhibits had
already been formally offered in January 2006 and had been duly admitted by the anti-graft court. The
prosecution added that, when confronted with the questioned transactions during the COA audit
investigation, Marquez never raised the defense of forgery. Instead, he insisted on the propriety of the
transactions. He did not claim forgery either when he filed his Joint Counter-Affidavit with the OMB.
Also, in his verified Motion for Reconsideration dated May 29, 2003 and Supplemental Motion dated
July 1, 2003 filed with the COA, no allegation of forgery was made.
The prosecution pointed to Section 4, Rule 129 of the Revised Rules of Court7 and posited that since
Marquez alleged in his pleadings that he had relied on the competence of his subordinates, there could
be no "palpable mistake," thus, he was estopped from alleging that his signatures on the subject
documents were forged. The prosecution accused Marquez of filing the motion merely to delay the
proceedings.8
In his Reply, Marquez insisted that he never admitted that his signatures on the disbursement vouchers,
purchase requests and authorization requests were his and that his motion was not intended to delay the
proceedings.
In its Rejoinder, the prosecution reiterated its earlier arguments and added that Caunan testified and
identified the signatures of Marquez in the subject vouchers. It further noted that Marquez moved to
refer the documents to the NBI only two and a half (2 ½) years after the formal offer of said documents.
In the subject February 11, 2009 Resolution, the anti-graft court denied the motion of Marquez. Citing
Section 22 of Rule 132 of the Rules of Court,9 it was of the view that while resort to the expert opinion
of handwriting experts would be helpful in the examination of alleged forged documents, the same was
neither mandatory nor indispensable, since the court can determine forgery from its own independent
examination.
The motion for reconsideration of Marquez was likewise denied.
Aggrieved, Marquez interposed this petition for certiorari raising this lone
ISSUE
THAT THE PUBLIC RESPONDENT SANDIGANBAYAN - 5th DIVISION COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
ISSUED ITS RESOLUTIONS RESPECTIVELY DATED FEBRUARY 11, 2009 AND MAY 20, 2009
DENYING THE PETITIONER’S MOTION TO REFER PROSECUTION’S EVIDENCE FOR
EXAMINATION BY THE QUESTIONED DOCUMENTS SECTION OF THE NATIONAL
BUREAU OF INVESTIGATION WHICH DENIAL IS IN VIOLATION OF HIS RIGHT TO
PRESENT EVIDENCE AND HIS TWIN CONSTITUTIONAL RIGHTS TO DUE PROCESS AND
EQUAL PROTECTION OF LAW.
Those availing of the remedy of certiorari must clearly show that the trial court acted without
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. By grave
abuse of discretion, it means such capricious or whimsical exercise of judgment as is equivalent to lack
of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. In
sum, for the extraordinary writ of certiorari to lie, there must be capricious, arbitrary or whimsical
exercise of power.10
Such circumstance exists in this case.
One of the most vital and precious rights accorded to an accused by the Constitution is due process,
which includes a fair and impartial trial and a reasonable opportunity to present one’s defense. Under
Section 14, Article III of the 1987 Constitution, it is provided that:
(1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the production of evidence in
his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is unjustifiable. (emphasis supplied)
In this connection, it is well settled that due process in criminal proceedings requires that (a) the court or
tribunal trying the case is properly clothed with judicial power to hear and determine the matter before
it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is
given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing.
While the Constitution does not specify the nature of this opportunity, by necessary implication, it
means that the accused should be allowed reasonable freedom to present his defense if the courts are to
give form and substance to this guaranty. Should the trial court fail to accord an accused reasonable
opportunity to submit evidence in his defense, the exercise by the Court of its certiorari jurisdiction is
warranted as this amounts to a denial of due process.
In this case, the defense interposed by the accused Marquez was that his signatures in the disbursement
vouchers, purchase requests and authorizations were forged. It is hornbook rule that as a rule, forgery
cannot be presumed and must be proved by clear, positive and convincing evidence11 and the burden of
proof lies on the party alleging forgery.12
Thus, Marquez bears the burden of submitting evidence to prove the fact that his signatures were indeed
forged. In order to be able to discharge his burden, he must be afforded reasonable opportunity to
present evidence to support his allegation. This opportunity is the actual examination of the signatures
he is questioning by no less than the country’s premier investigative force – the NBI. If he is denied
such opportunity, his only evidence on this matter is negative testimonial evidence which is generally
considered as weak. And, he cannot submit any other examination result because the signatures are on
the original documents which are in the control of either the prosecution or the graft court.
At any rate, any finding of the NBI will not be binding on the graft court. It will still be subject to its
scrutiny and evaluation in line with Section 22 of Rule 132. Nevertheless, Marquez should not be
deprived of his right to present his own defense. How the prosecution, or even the court, perceives his
defense to be is irrelevant. To them, his defense may seem feeble and his strategy frivolous, but he
should be allowed to adduce evidence of his own choice. The court should not control how he will
defend himself as long as the steps to be taken will not be in violation of the rules.
Contrary to the assertion of the prosecution, this move of Marquez is not a mere afterthought to delay
the prosecution of the case. From the records, it appears that as early as November 24, 2003, even
before arraignment, upon his alleged discovery of the forged signatures, Marquez already sought
referral of the disbursement vouchers, purchase requests and authorization requests to the NBI and
reinvestigation of the cases against him.13 At that stage, his plea was already denied by the OSP.
Apparently, he did not abandon his quest. In his Omnibus Motion dated April 1, 2008 filed with the SB-
4th Division, Marquez did not only move for the inhibition of Justice Ong and Justice Hernandez, but
also moved for the referral of the disbursement vouchers, purchase requests and authorization to the
NBI. Since the latter was not acted upon, he filed the subject Motion to Refer Prosecution’s Evidence
for Examination by the Questioned Documents Section of the National Bureau of Investigation
reiterating his plea, this time with the SB-5th Division.
If this case has been delayed, it is because of the denial of the simple request of Marquez. If it was
granted in the first instance, the trial of the case would have proceeded smoothly and would have been
over by now. If the Court were to deny this petition and Marquez would be convicted for having failed
to prove forgery, he could not be prevented from crying that he was prevented from presenting evidence
in his defense.
The fact that Marquez did not raise this issue with the COA is immaterial and irrelevant.1âwphi1 His
failure or omission to do so may affect the appreciation and weight of his defense, but it should not bar
him from insisting on it during his turn to adduce evidence.
In denying said motion, the SB-5th Division offered no valid explanation other than the fact that, being
the trial court, it may validly determine forgery from its own independent examination of the
documentary evidence. While it is true that the appreciation of whether the signatures of Marquez are
genuine or not is subject to the discretion of the graft court, this discretion, by the very nature of things,
may rightly be exercised only after the evidence is submitted to the court at the hearing. Evidence
cannot properly be weighed if not exhibited or produced before the court.14 Only after evidence is
offered and admitted that the court can appreciate and evaluate it. The prosecution had already offered
its evidence on the matter. The court should not deny the same right to the defense.
The fact that the documentary exhibits were already formally offered and duly admitted by the anti-graft
court cannot preclude an examination of the signatures thereon by the defense. With proper handling by
court personnel, this can easily be accomplished by the NBI expert examiners.
In the conduct of its proceedings, a court is given discretion in maintaining the delicate balance between
the demands of due process and the strictures of speedy trial on the one hand, and the right of the State
to prosecute crimes and rid society of criminals on the other. Indeed, both the State and the accused are
entitled to due process. However, the exercise of such discretion must be exercised judiciously, bearing
in mind the circumstances of each case, and the interests of substantial justice. ATTESTATION

Thus, for having denied Marquez the opportunity to be heard and to produce evidence of his choice in
his defense, the SB-5th Division committed grave abuse of discretion warranting intervention from the
Court. The anti-graft court should allow him to refer the evidence of the prosecution to the Questioned
Documents Section of the NBI for examination at the soonest time possible and for the latter to
immediately conduct such examination and to submit the results to the court within a reasonable time.
WHEREFORE, the petition is GRANTED. The February 11, 2009 and May 20, 2009 Resolutions of the
5th Division of the Sandiganbayan in Criminal Case Nos. 27903, 27904 and 27905 are hereby
REVERSED and SET ASIDE. The 5th Division of the Sandiganbayan is hereby ordered to allow the
petitioner Joey P. Marquez to refer the evidence of the prosecution to the Questioned Documents
Section of the National Bureau of Investigation for examination as soon as possible and, after
submission of the results to the court and proper proceedings, to act on the case with dispatch.
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

SO ORDERED. RENATO C. CORONA

Chief Justice
JOSE CATRAL MENDOZA
Associate Justice
Footnotes
WE CONCUR:
1 Rollo, p. 5
ANTONIO T. CARPIO
Associate Justice 2 Penned by Associate Justice Napoleon E. Inoturan with Associate Justice Ma. Cristina G. Cortez-
Chairperson Estrada and Associate Justice Alexander G. Gesmundo, concurring; id. at 47-51.

ANTONIO EDUARDO B. NACHURA 3 Id. at 52-55.

Associate Justice DIOSDADO M. PERALTA
Associate Justice 4 Id. at 66-75.
ROBERTO A. ABAD
Associate Justice
5 Docketed as Criminal Case Nos. 27903-27905. Other graft cases filed against the petitioner and other
officials of the City of Parañaque were docketed as Criminal Case Nos. 27944, 27946, 27952-27954.
6 Rollo, pp. 154-159.
7 Sec. 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made. (2a)
8 Resolution, Sandiganbayan-5th Division, February 11, 2009, pp.1-2, rollo, pp. 47-48.
9 Sec. 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by
any witness who believes it to be the handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine
by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the
judge. (23a)
10 Salma v. Hon. Miro, G.R. No. 168362, January 25, 2007, 512 SCRA 724.
11 Tenio-Obsequio v. Court of Appeals, G.R. No. 107967, March 1, 1994, 230 SCRA 550.
12 Heirs of Severa P. Gregorio v. CA, G.R. No. 117609, 360 Phil. 753 (1998).
13 Rollo, pp. 154-159.
14 See Basco v. Rapatalo, A.M. No. RTJ-
EN BANC
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the
rights of the individual from the vast powers of the State and the inroads of societal pressure. But even
as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot
tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic
obligation, which society is justified in enforcing at all cost, against those who would endeavor to
withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty
of action of any of their number, is self-protection. The only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the
end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate
a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-
observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the
social order, carrying with it a new formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process, the web of rights and State
impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein
irregular and broken. Antagonism, often outright collision, between the law as the expression of the will
of the State, and the zealous attempts by its members to preserve their individuality and dignity,
inevitably followed. It is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us
that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides
the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject
the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from
the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions;
and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal
Code, all of which are purportedly clear violations of the fundamental rights of the accused to due
process and to be informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material
possession of any person within the purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the
public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities, or government owned or
controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business enterprise
or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination
or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be
punished by reclusion perpetua to death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The
court shall declare any and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA
7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3,
par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case
No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for
Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal
Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA
6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification "d" of the charges in the Information in Crim.
Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b,"
and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to
prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary
investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable
cause. The purported ambiguity of the charges and the vagueness of the law under which they are
charged were never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558
finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for
the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the
Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one
(1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being
vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA
7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is presumed to be in harmony with the Constitution.3
Courts invariably train their sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to
encroach upon the duties and powers of another. Thus it has been said that the presumption is based on
the deference the judicial branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that
the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of promoting what is right and advancing the
welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint and act with caution and forbearance.
Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity
being a measure of last resort. In construing therefore the provisions of a statute, courts must first
ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the
decision of the court, the constitutionality of the challenged law will not be touched and the case will be
decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly
and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest
the positive commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the
validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the instant case to discharge
his burden and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which
would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the
crime with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the
following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission,
gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity
in connection with any government contract or project or by reason of the office or position of the
public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest or participation including the promise
of future employment in any business enterprise or undertaking; (e) by establishing agricultural,
industrial or commercial monopolies or other combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or (f) by taking advantage of official position,
authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is
at least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform those who are subject
to it what conduct would render them liable to its penalties, its validity will be sustained. It must
sufficiently guide the judge in its application; the counsel, in defending one charged with its violation;
and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00 through a series or combination
of acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada,
a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie
'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime
of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction
of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,
WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY,
BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION,
OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or
TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(₱4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND
THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR
criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR
in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte,
Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS (₱130,000,000.00), more or less, representing a portion of the
TWO HUNDRED MILLION PESOS (₱200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie
'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE
OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY
EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND
BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY
REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (₱189,700,000.00)
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that
the elements of the crime are easily understood and provide adequate contrast between the innocent and
the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in
Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner,
render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the accusation against him, hence, violative of his
fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely
because general terms are used therein, or because of the employment of terms without defining them;6
much less do we have to define every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and every word in an enactment. Congress is REP. GARCIA: Yeah, because we say a series.
not restricted in the form of expression of its will, and its inability to so define the words employed in a
statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will REP. ISIDRO: Series.
is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder
Law. REP. GARCIA: Yeah, we include series.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in REP. ISIDRO: But we say we begin with a combination.
their natural, plain and ordinary acceptation and signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those words.8 The intention of the lawmakers - who are, REP. GARCIA: Yes.
ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly REP. ISIDRO: When we say combination, it seems that -
accepted definition of the words "combination" and "series:"
REP. GARCIA: Two.
Combination - the result or product of combining; the act or process of combining. To combine is to
bring into such close relationship as to obscure individual characters. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
Series - a number of things or events of the same class coming one after another in spatial and temporal
succession. REP. GARCIA: No, no, not twice.

That Congress intended the words "combination" and "series" to be understood in their popular REP. ISIDRO: Not twice?
meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA
7080 or the Plunder Law: REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It
cannot be a repetition of the same act.
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION REP. GARCIA: That be referred to series, yeah.
ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are included, how REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
about a series of the same act? For example, through misappropriation, conversion, misuse, will these be
included also? REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we
seem to say that two or more, di ba? DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts
may already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a
series of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove
the idea of necessitating "a series." Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say "acts of plunder" there should be, at least, two or more.

REP. GARCIA: Yes. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

REP. ISIDRO: When you say combination, two different? Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec.
REP. GARCIA: Yes. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government
under Sec. 1, par. (d), subpar. (3).
SEN. TANADA: Two different.
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling
REP. ISIDRO: Two different acts. under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation
and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the
REP. GARCIA: For example, ha... legislature intended a technical or distinctive meaning for "combination" and "series," it would have
taken greater pains in specifically providing for it in the law.
REP. ISIDRO: Now a series, meaning, repetition...
As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is sufficiently
defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or
criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law,
the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the
public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the
term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused
and public officer and others conniving with him follow to achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most
commonly stated to the effect that a statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited
by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face,
i.e., that which cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the
statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.10 But the doctrine does not apply as against legislations that are merely couched
in imprecise language but which nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be
"saved" by proper construction, while no challenge may be mounted as against the second whenever
directed against such activities.11 With more reason, the doctrine cannot be invoked where the assailed
statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practice.12 It must be stressed, however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not
justify a facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process of law."13 The overbreadth doctrine, on the
other hand, decrees that "a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity."15 The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law,
the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context
of the First Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists under which
the Act would be valid."18 As for the vagueness doctrine, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of
others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional."20 As has been
pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant."21 Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected.22 It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts.23 But, as the U.S.
Supreme Court pointed out in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where
none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics
who cavil at the want of scientific precision in the law. Every provision of the law should be construed
in relation and with reference to every other part. To be sure, it will take more than nitpicking to
overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A
fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the
Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by reason of which he even registered his affirmative
vote with full knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize
the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so
imperfect and deficient in its details, and is susceptible of no reasonable construction that will support
and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among
others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or
settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e),
violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.
Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a)
giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits
through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official function and that their right to be informed of the
nature and cause of the accusation against them was violated because they were left to guess which of
the three (3) offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices
Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality,"
"evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by
which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these
phrases in the same Information does not mean that the indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate
reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in
Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and
make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official, administrative or judicial functions, in giving any private
party benefits, advantage or preference which is unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in
its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate
acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts
showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary
to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which
is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is entitled to an acquittal.29 The use of the
"reasonable doubt" standard is indispensable to command the respect and confidence of the community
in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a
standard of proof that leaves people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary affairs has confidence that
his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder
of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in
the realm of constitutional law as it gives life to the Due Process Clause which protects the accused
against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged.30 The following exchanges between Rep. Rodolfo Albano and Rep.
Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are
elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty
of the other acts enumerated in the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsification is less than ₱100 million, but the totality of
the crime committed is ₱100 million since there is malversation, bribery, falsification of public
document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality
of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to accumulate only ₱50,000 and in the crime of extortion, he
was only able to accumulate ₱1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we
now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is ₱100 million. Now, in a series of defalcations and
other acts of corruption in the enumeration the total amount would be ₱110 or ₱120 million, but there
are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions
which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt,
is ₱100 million, then there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the standard
quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond
any iota of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a
dismal misconception of the import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least ₱50,000,000.00. There is no need to prove each
and every other act alleged in the Information to have been committed by the accused in furtherance of
the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To
illustrate, supposing that the accused is charged in an Information for plunder with having committed
fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being
sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that
they amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt
or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the
prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d).
Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with
reason and common sense. There would be no other explanation for a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate
and conscious effort to prove pattern as it necessarily follows with the establishment of a series or
combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is
"a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a
rule of evidence and a substantive element of the crime," such that without it the accused cannot be
convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the
commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised
Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable
doubt without applying Section 4, can you not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the
law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and
it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid
Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled
and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of
them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for
what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude
exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even
granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by
petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the
demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person
or circumstance is held invalid, the remaining provisions of this Act and the application of such
provisions to other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of
the nullity of some of its provisions, assuming that to be the case although it is not really so, all the
provisions thereof should accordingly be treated independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which
requires proof of criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in
a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the
part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the reason
he claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence
for each and every individual criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript
quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of
attending to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution
need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if
it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful
scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of
the crime must be proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to
"any person who participates with the said public officer in the commission of an offense contributing to
the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as
to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light,
the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in
death; and drug offenses involving minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where
the victim is detained for more than three days or serious physical injuries were inflicted on the victim
or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by
their very nature.
There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling
from decades of corrupt tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures
of society and the psyche of the populace. [With the government] terribly lacking the money to provide
even the most basic services to its people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses
involving government officials, employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum
in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and
it does not matter that such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect
this long dead issue, the same having been eternally consigned by People v. Echegaray38 to the archives
of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid
stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution
now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places
which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate
in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to
bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury.
Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the
moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of
the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other
venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall from
the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga
has driven a wedge of dissension among our people that may linger for a long time. Only by responding
to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant
in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
Footnotes
1 Approved 12 July 1991 and took effect 8 October 1991.
2 Approved 13 December 1993 and took effect 31 December 1993.
3 Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.
4 G.R. No. 87001, 4 December 1989, 179 SCRA 828.
5 Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).
6 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.
7 Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430, 448.
8 PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16,
26.
9 Resolution of 9 July 2001.
10 See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.
11 Ibid.
12 State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
13 Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate
Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).
14 NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364 U.S.
479, 5 L. Ed. 2d 231 (1960).
15 Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation marks
omitted).
16 United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also People v. De la
Piedra, G.R. No. 121777, 24 January 2001.
17 413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).
18 United States v. Salerno, supra.
19 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d
362, 369 (1982).
20 United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic case is
Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).
21 G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).
22 Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev.
1321 (2000) arguing that, in an important sense, as applied challenges are the basic building blocks of
constitutional adjudication and that determinations that statutes are facially invalid properly occur only
as logical outgrowths of ruling on whether statutes may be applied to particular litigants on particular
facts.
23 Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158
(1936); "[T]he power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to be constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities."
24 401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S. 17, 4 L.
Ed. 2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388
(1989).
25 Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the Arts v.
Finley, 524 U.S. 569, 580 (1998).
26 FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of
Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate
Opinion).
27 United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6 (1963).
28 G.R. No. 57841, 30 July 1982, 115 SCRA 793.
29 People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.
30 People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.
31 Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: "If there are let’s
say 150 crimes all in all, criminal acts, whether bribery, misappropriation, malversation, extortion, you
need not prove all those beyond reasonable doubt. If you can prove by pattern, let’s say 10, but each
must be proved beyond reasonable doubt, you do not have to prove 150 crimes. That’s the meaning of
this (Deliberations of Committee on Constitutional Amendments and Revision of Laws, 15 November
1988, cited in the Sandiganbayan Resolution of 9 July 2001).
32 TSN, 18 September 2001, pp. 115-121.
33 4 Record of the Senate 1316, 5 June 1989.
34 Ibid.
35 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
36 267 SCRA 682, 721-2 (1997) (emphasis added).
37 Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
38 G.R. No. 117472, 7 February 1997, 267 SCRA 682.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
KAPUNAN, J.:
The primary duty of the Court is to render justice. The resolution of the issues brought before it must be
grounded on law, justice and the basic tenets of due process, unswayed by the passions of the day or the
clamor of the multitudes, guided only by its members’ honest conscience, clean hearts and their
unsullied conviction to do what is right under the law.
The issues posed by the instant petition are quite difficult. The task of the Court to resolve the same is
made more daunting because the case involves a former President of the Republic who, in the eyes of
certain sectors of society, deserves to be punished. But the mandate of the Court is to decide these issues
solely on the basis of law and due process, and regardless of the personalities involved. For indeed, the
rule of law and the right to due process are immutable principles that should apply to all, even to those
we hate. As Fr. Joaquin G. Bernas, S.J., a noted constitutionalist, aptly puts it--
x x x the greater disaster would be if the Supreme Court should heed the clamor for conviction and
convict Estrada even under an unconstitutional law but of the belief that Estrada deserves to be
punished. That would be tantamount to a rule of men and not of law.1
The Basic Facts
The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080 or
Plunder Law), as amended by Republic Act No. 7659,2 entitled "An Act Defining and Penalizing the
Crime of Plunder."3 This original petition for certiorari and prohibition against Respondent Third
Division of the Sandiganbayan filed by petitioner Joseph Ejercito Estrada assails Respondent court’s
Resolution, dated July 9, 2001, denying his Motion to Quash the information against him in Criminal
Case No. 26558 for Plunder. Petitioner likewise prays that the Sandiganbayan be prohibited and
enjoined from proceeding with his arraignment and trial in Criminal Case No. 26558 due to the
unconstitutionality of R. A. No. 7080.
On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs. Desierto,
et al.) and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3, 2001,
upholding the constitutionality of President Gloria Macapagal-Arroyo’s assumption of office as
President of the Republic of the Philippines and declaring that the former President Joseph Ejercito
Estrada no longer enjoyed immunity from suit, the Ombudsman filed eight (8) Informations against
Estrada. These cases were Criminal Case No. 26558 (for Plunder); Criminal Case No. 26559 (for
Violation of Sec. 3[a] of Republic Act No. 3019); Criminal Case No. 26560 (for Violation of Sec. 3[a]
of R.A. No. 3019); Criminal Case No. 26561 (for Violation of Sec. 3[e] of R.A. 3019); Criminal Case
No. 26562 (for Violation of Sec. 3[e] of R.A. No. 3019); Criminal Case No. 26563 (for Violation of
Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for Perjury); and Criminal Case No. 26565 (for
Illegal Use of Alias).
The aforementioned informations were raffled to the five divisions of the Sandiganbayan. Criminal Case
No. 26558 was raffled to the Third Division of said court. The amended information against petitioner
charging violations of Section 2, in relation to Section (d) (1) (2) of the statute reads:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction
of this Honorable Court, accused Joseph Ejercito Estrada, by himself and in conspiracy with his co-
accused, business associates and persons heretofore named, by taking advantage of his official position,
authority, connection or influence as President of the Republic of the Philippines, did then and there
wilfully, unlawfully and criminally amass, accumulate and acquire ill-gotten wealth, and unjustly enrich
himself in the aggregate amount of P4,097,804,173.17, more or less, through a combination and series
of overt and criminal acts, described as follows:
(a) by receiving, collecting, directly or indirectly, on many instances, so-called "jueteng money" from
gambling operators in connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte and
Edward Serapio, as witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses, in the aggregate
amount of FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00), more or less, in
consideration of their protection from arrest or interference by law enforcers in their illegal "jueteng"
activities; and
(b) by misappropriating, converting and misusing for his gain and benefit public fund in the amount of
ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion
of One Hundred Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused Charlie ‘Atong’ Ang, Alma
Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as
witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses; and
(c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the
Social Security System (SSS) to purchase and buy a combined total of 681,733,000 shares of stock of
the Belle Corporation in the aggregate gross value of One Billion Eight Hundred Forty-Seven Million
Five Hundred Seventy Eight Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for the purpose of
collecting for his personal gain and benefit, as in fact he did collect and receive the sum of ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN PESOS
(P189,700,000.00) as commission for said stock purchase; and
(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) comprising his unexplained wealth
acquired, accumulated and amassed by him under his account name "Jose Velarde" with Equitable PCI
Bank:
to the damage and prejudice of the Filipino people and the Republic of the Philippines.
CONTRARY TO LAW.4
On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw Information in
Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563. Petitioner registered his objection to the
Ombudsman’s motion to withdraw. The divisions of the Sandiganbayan to which said cases were
assigned granted the withdrawal of the informations, save for that in Criminal Case No. 26561. At
present, the Order of the First Division of the Sandiganbayan denying the Ombudsman’s motion to
withdraw in Criminal Case No. 26561 is still under reconsideration.
In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the remand of
the case to the Office of the Ombudsman for: (1) the conduct of a preliminary investigation as regards
specification "d" of the accusations in the information in said case; and (2)
reconsideration/reinvestigation of the offenses in specifications "a," "b" and "c" to enable petitioner to
file his counter-affidavits as well as other necessary documents.
On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:
(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused
former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramon Tan or
Mr. Uy and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution denying
petitioner’s Omnibus Motion.
On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the same was
denied in a Resolution of June 25, 2001.
Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal Case No.
26558, invoking the following grounds: (1) the facts charged do not constitute an indictable offense as
R.A. No. 7080, the statute on which it is based, is unconstitutional; and (2) the information charges
more than one offense.
The People of the Philippines filed an Opposition thereto on June 21, 2001. Petitioner filed his Reply to
the Opposition on June 28, 2001.
On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying petitioner’s
motion to quash.
Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the Sandiganbayan
committed grave abuse of discretion in denying his motion to quash the information in Criminal Case
No. 26558. Petitioner argues that R.A. No. 7080 is unconstitutional on the following grounds:
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE NATURE
AND CAUSE OF THE ACCUSATION AGAINST HIM
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL PRESUMPTION
OF INNOCENCE BY LOWERING THE QUANTUM OF EVIDENCE NECESSARY FOR PROVING
THE COMPONENT ELEMENTS OF PLUNDER
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT THE
REASONABLE DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF MENS REA IN
MALA IN SE CRIMES BY CONVERTING THESE TO MALA PROHIBITA, IN VIOLATION OF
THE DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY.5
The provisions of law involved
Section 2 of R.A. No. 7080 provides:
Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of
overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at
least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.
The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State. (As amended by Sec. 12, RA No. 7659.)
Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)" hereof, acquired by him
directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by
any combination or series of the following means or similar schemes:
1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public
treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations
and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business enterprise
or undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
6. By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.6
On the other hand, Section 4 states:
Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
Petitioner’s theory
Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers from structural
deficiency and ambiguity.7 In sum, he maintains that the law does not afford an ordinary person
reasonable notice that his actuation will constitute a criminal offense. More particularly, petitioner
argues that the terms "combination" and "series" are not clearly defined, citing that in a number of cases,
the United States (U.S.) federal courts in deciding cases under the Racketeer Influenced and Corrupt
Organizations Act (RICO law), after which the Plunder Law was patterned, have given different
interpretations to "series of acts or transactions."8 In addition, he terms "raid on the public treasury,"
"receiving or accepting a gift," "commission," "kickbacks," "illegal or fraudulent conveyance or
disposition of assets," "monopolies or other combinations," "special interests," "taking undue advantage
of official position," "unjustly enrich" all suffer from overbreadth which is a form of vagueness.9
In arguing that the law on plunder is vague and impermissibly broad, petitioner points out that the terms
"combination" and ‘series" used in the phrase "any combination or series of the following means or
similar schemes" are not defined under the statute. The use of these terms in the law allegedly raises
several questions as to their meaning and import.
Petitioner posits the following queries: "Does it (referring to the term "series") mean two, three, four, of
the overt or criminal acts listed in Section 1(d)? Would it mean two or more related enterprises falling
under at least two of the means or ‘similar schemes’ listed in the law, or just a joint criminal enterprise?
Would it require substantial identity of facts and participants, or merely a common pattern of action?
Would it imply close connection between acts, or a direct relationship between the charges? Does the
term mean a factual relationship between acts or merely a common plan among conspirators?"10
The term "combination" is allegedly equally equivocal. According to petitioner, it is not clear from the
law if said term covers time, place, manner of commission, or the principal characters. Thus petitioner
asks: "Does it (referring to the term "combination") include any two or more acts, whether legal or
illegal, or does the law require that the combination must include at least two of the ‘means or similar
schemes’ laid down in R.A. 7080? Does it cover transactions that have occurred in the same place or
area, or in different places, no matter how far apart? Does ‘combination’ include any two or more overt
acts, no matter how far apart in time, or does it contemplate acts committed within a short period of
time? Does the ‘combination’ cover the modus operandi of the crimes, or merely the evidence to be
used at the trial?"11
It is also argued that the phrase "pattern of overt or criminal acts indicative of the overall scheme or
conspiracy" adds to the vagueness of the law because "pattern" is not defined therein and is not included
in the definition of the crime of plunder even though it is an essential element of said crime.12
Petitioner also maintains that the Plunder Law violates the due process clause and the constitutional
presumption of innocence by lowering the quantum of evidence necessary for proving the component
elements of plunder because Section 4 does not require that each and every criminal act done by the
accused in furtherance of the scheme or conspiracy be proved, "it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."13
Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable doubt
standard and to abolish the element of mens rea in mala in se crimes by converting these to mala
prohibita, thereby making it easier for the prosecution to prove malversation, bribery, estafa and other
crimes committed by public officers since criminal intent need not be established.14
Considering the infringement to the constitutionally-guaranteed right to due process of an accused,
petitioner contends that R.A. No. 7080 cannot be accorded any presumption of constitutional validity.
Respondents’ theory
On the other hand, Respondents argue that the "particular elements constituting the crime of plunder"
are stated with "definiteness and certainty," as follows:
(1) There is a public officer who acts by himself or in connivance with members of his family, relatives
by affinity or consanguinity, business associates, subordinates or other persons;
(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;
(3) The total amount of ill-gotten wealth so amassed, accumulated or acquired is at least Fifty Million
Pesos (P50,000,000.00); and
(4) The ill-gotten wealth, which is defined as any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2) of R.A. No. 7080, was acquired by him
directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by
any combination or series of the means or similar schemes enumerated in Section 1(d).15
Moreover, Respondents maintain that assuming that there is some vagueness in the law, it need not be
declared unconstitutional but may be clarified by judicial construction.16 Respondents further add that
the ordinary import of the terms combination" and "series" should prevail, as can be gleaned from the
deliberations of the Congress in the course of its passage of the law. According to respondents, "series
of overt criminal acts" simply mean a repetition of at least two of any of those enumerated acts found in
Section 1(d) of R.A. 7080. And "combination" means a product of combining of at least one of any of
those enumerated acts described in Section 1(d) with at least one of any of the other acts so enumerated.
Respondents score petitioner for arguing on the basis of federal courts’ decisions on the RICO law,
citing that the U.S. courts have consistently rejected the contention that said law is void for being
vague.17
Respondents deny that the Plunder Law dispenses with the requirement of proof beyond reasonable
doubt. While there may be no necessity to prove each and every other act done by the accused in
furtherance of the scheme to acquire ill-gotten wealth, it is still necessary for the prosecution to prove
beyond reasonable doubt the pattern of overt or criminal acts indicative of the overall scheme or
conspiracy, as well as all the other elements of the offense of plunder.18 Respondents also point out that
conspiracy itself is not punishable under the Plunder Law, which deals with conspiracy as a means of
incurring criminal liability.19
Respondents likewise contend that it is within the inherent powers and wisdom of the legislature to
determine which acts are mala prohibita in the same way that it can declare punishable an act which is
inherently not criminal in nature.20
In conclusion, Respondents assert that petitioner has failed to overcome the presumption of
constitutionality of R.A. No. 7080.
Petitioner’s Reply
Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision states the
"most important element, which is the common thread that ties the component acts together: "a pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy21 and raises the
following questions:
(a) Reference is made to a "pattern of overt or criminal acts." The disjunctive "or" is used. Will a pattern
of acts, which are overt but not criminal in themselves, be indicative of an overall unlawful scheme or
conspiracy?
(b) Under what specific facts or circumstances will a "pattern" be "indicative" of the overall unlawful
scheme or conspiracy?
(c) Under what specific facts or circumstances will the required "pattern" or "scheme" even be said to be
present or to exist?
(d) When is there an "unlawful scheme or conspiracy?"22
Issues raised in the oral arguments
Oral arguments were heard on September 18, 2001. At said hearing, the Court defined the issues for
resolution as follows:
1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;
2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE PREDICATE
CRIMES OF PLUNDER AND THEREFORE VIOLATES THE RIGHT OF THE ACCUSED TO DUE
PROCESS; and
3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM AND IF
SO, WHETHER IT IS WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE SAME.23
Thereafter, both parties filed their respective memoranda in which they discussed the points which they
raised in their earlier pleadings and during the hearing.
I believe that there is merit in the petition.
A penal statute which violates constitutional
guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of constitutionality,24 and the presumption
prevails in the absence of contrary evidence.25 A criminal statute is generally valid if it does not violate
constitutional guarantees of individual rights.26 Conversely, when a constitutionally protected right of
an individual is in danger of being trampled upon by a criminal statute, such law must be struck down
for being void.27
One of the fundamental requirements imposed by the Constitution upon criminal statutes is that
pertaining to clarity and definiteness. Statutes, particularly penal laws, that fall short of this requirement
have been declared unconstitutional for being vague. This "void-for-vagueness" doctrine is rooted in the
basic concept of fairness as well as the due process clause of the Constitution.
The Constitution guarantees both substantive and procedural due process28 as well as the right of the
accused to be informed of the nature and cause of the accusation against him.29 A criminal statute
should not be so vague and uncertain that "men of common intelligence must necessarily guess as to its
meaning and differ as to its application.30
There are three distinct considerations for the vagueness doctrine. First, the doctrine is designed to
ensure that individuals are properly warned ex ante of the criminal consequences of their conduct. This
"fair notice" rationale was articulated in United States v. Harriss:31
The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person
of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The
underlying principle is that no man shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed.32
Second, and viewed as more important, the doctrine is intended to prevent arbitrary and discriminatory
law enforcement.33 Vague laws are invariably "standardless" and as such, they afford too great an
opportunity for criminal enforcement to be left to the unfettered discretion of police officers and
prosecutors.34 Third, vague laws fail to provide sufficient guidance to judges who are charged with
interpreting statutes. Where a statute is too vague to provide sufficient guidance, the judiciary is
arguably placed in the position of usurping the proper function of the legislature by "making the law"
rather than interpreting it.35
While the dictum that laws be clear and definite does not require Congress to spell out with
mathematical certainty the standards to which an individual must conform his conduct,36 it is necessary
that statutes provide reasonable standards to guide prospective conduct.37 And where a statute imposes
criminal sanctions, the standard of certainty is higher.38 The penalty imposable on the person found
guilty of violating R.A. No. 7080 is reclusion perpetua to death.39 Given such penalty, the standard of
clarity and definiteness required of R.A. No. 7080 is unarguably higher than that of other laws.40
Void-for-vagueness doctrine
applies to criminal laws.
A view has been proffered that "vagueness and overbreadth doctrines are not applicable to penal
laws."41 These two concepts, while related, are distinct from each other.42 On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech.43 On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other
fundamental constitutional rights.44 The fact that a particular criminal statute does not infringe upon
free speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed.45
As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined right to due
process of law. Thus, as in this case that the "life, liberty and property" of petitioner is involved, the
Court should not hesitate to look into whether a criminal statute has sufficiently complied with the
elementary requirements of definiteness and clarity. It is an erroneous argument that the Court cannot
apply the vagueness doctrine to penal laws. Such stance is tantamount to saying that no criminal law can
be challenged however repugnant it is to the constitutional right to due process.
While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislature’s
objective of protecting the public from socially harmful conduct, this should not prevent a vagueness
challenge in cases where a penal statute is so indeterminate as to cause the average person to guess at its
meaning and application. For if a statute infringing upon freedom of speech may be challenged for
being vague because such right is considered as fundamental, with more reason should a vagueness
challenge with respect to a penal statute be allowed since the latter involve deprivation of liberty, and
even of life which, inarguably, are rights as important as, if not more than, free speech.
It has been incorrectly suggested46 that petitioner cannot mount a "facial challenge" to the Plunder Law,
and that "facial" or "on its face" challenges seek the total invalidation of a statute.47 Citing Broadrick v.
Oklahoma,48 it is also opined that "claims of facial overbreadth have been entertained in cases
involving statutes which, by their terms, seek to regulate only spoken words" and that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it is argued further that "on its face
invalidation of statutes has been described as ‘manifestly strong medicine,’ to be employed ‘sparingly
and only as a last resort.’" A reading of Broadrick, however, shows that the doctrine involved therein
was the doctrine of overbreadth. Its application to the present case is thus doubtful considering that the
thrust at hand is to determine whether the Plunder Law can survive the vagueness challenge mounted by
petitioner. A noted authority on constitutional law, Professor Lockhart, explained that "the Court will
resolve them (vagueness challenges) in ways different from the approaches it has fashioned in the law of Men steeped in law find
overbreadth."49 Thus, in at least two cases,50 the U.S. courts allowed the facial challenges to vague difficulty in understanding plunder.
criminal statutes even if these did not implicate free speech
The basic question that arises, therefore, is whether the clauses in Section 2--
In Kolender v. Lawson,51 petitioners assailed the constitutionality of a California criminal statute which
required persons who loiter or wander on the streets to provide a credible and reasonable identification combination or series of overt or criminal acts as described in Section 1(d) hereof
and to account for their presence when requested by a peace officer under circumstances that would
justify a valid stop. The U.S. Supreme Court held that said statute was unconstitutionally vague on its and Section 1(d), which provides--
face within the meaning of the due process clause of the Fourteenth Amendment because it encourages
arbitrary enforcement by failing to clarify what is contemplated by the requirement that a suspect x x x by any combination or series of the following means or similar schemes:
provide a "credible and reasonable identification." Springfield vs. Oklahoma52 on the other hand
involved a challenge to a Columbus city ordinance banning certain assault weapons. The court therein 1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
stated that a criminal statute may be facially invalid even if it has some conceivable application. It went treasury;
on to rule that the assailed ordinance’s definition of "assault weapon" was unconstitutionally vague,
because it was "fundamentally irrational and impossible to apply consistently by the buying public, the xxx
sportsman, the law enforcement officer, the prosecutor or the judge."53
6) By taking undue advantage of official position, authority, relationship, connection or influence to
It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of the statute as unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
applied to him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under people and the Republic of the Philippines.
which he is charged, but also its other provisions which deal with plunder committed by illegal or
fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)), and as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass, accumulate or
establishment of monopolies and combinations or implementation of decrees intended to benefit acquire ill-gotten wealth" and of "a pattern of overt or criminal acts indicative of the overall unlawful
particular persons or special interests (§ 1(d)(5))."54 Notably, much of petitioner’s arguments dealt with scheme or conspiracy," are clear enough that a person "of common intelligence" need not guess at their
the vagueness of the key phrases "combination or series" and "pattern of overt or criminal acts meaning and differ as to their application.
indicative of the overall unlawful scheme or conspiracy" which go into the very nature of the crime for
which he is charged. The above raise several difficult questions of meaning which go to the very essence of the offense, such
as:
Taking into consideration that the Plunder Law is a penal statute that imposes the supreme penalty of
death, and that petitioner in this case clearly has standing to question its validity inasmuch as he has a. How many acts would constitute a "combination or series?"
been charged thereunder and that he has been for sometime now painfully deprived of his liberty, it
behooves this Court to address the challenge on the validity of R.A. No. 7080.
b. Must the acts alleged to constitute the "combination or series" be similar in nature? Note that Section
1(d) speaks of "similar schemes" while Section 4 speaks of "the scheme" and of "a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy."
c. Must the "combination or series" of "overt or criminal acts" involving the aggregate amount of at
least P50 million be conceived as such a scheme or a "pattern of overt or criminal acts" from inception
by the accused?
d. What would constitute a "pattern"? What linkage must there be between and among the acts to
constitute a "pattern"? Need there be a linkage as to the persons who conspire with one another, and a
linkage as to all the acts between and among them?
e. When Section 4 speaks of "indicative of the overall unlawful scheme or conspiracy," would this mean
that the "scheme" or "conspiracy" should have been conceived or decided upon in its entirety, and by all
of the participants?
f. When committed in connivance "with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons" or through "dummies, nominees, agents,
subordinates and/or business associates", would such fact be part of the "pattern of overt or criminal
acts" and of the "overall unlawful scheme or conspiracy" such that all of those who are alleged to have
participated in the crime of plunder must have participated in each and every act allegedly constituting
the crime of plunder? And as in conspiracy, conspired together from inception to commit the offense?
g. Within what time frame must the acts be committed so as to constitute a "combination or series"?
I respectfully disagree with the majority that "ascertainable standards and well-defined parameters" are
provided in the law55 to resolve these basic questions.
Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder. The
Presiding Justice of the Sandiganbayan, Justice Francis Garchitorena, admitted that the justices of said
court "have been quarrelling with each other in finding ways to determine what [they] understand by
plunder."56 Senator Neptali Gonzales also noted during the deliberations of Senate Bill No. 733 that the
definition of plunder under the law is vague. He bluntly declared: "I am afraid that it might be faulted
for being violative of the due process clause and the right to be informed of the nature and cause of the
accusation of an accused.57 Fr. Bernas, for his part, pointed to several problematical portions of the law
that were left unclarified. He posed the question: "How can you have a 'series' of criminal acts if the
elements that are supposed to constitute the series are not proved to be criminal?"58
The meanings of "combination" and "series"
as used in R.A. No. 7080 are not clear.
Although the law has no statutory definition of "combination" or "series", the majority is of the view
that resort can be had to the ordinary meaning of these terms. Thus, Webster's Third New International
Dictionary gives the meaning of "combination": "the result or product or product of combining: a union
or aggregate made of combining one thing with another."59
In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least
two of the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts, combined with
another act falling under any other of the enumerated means may constitute the crime of plunder. With
respect to the term "series," the majority states that it has been understood as pertaining to "two or more
overt or criminal acts falling under the same category"60 as gleaned from the deliberations on the law in
the House of Representatives and the Senate.
Further, the import of "combination" or "series" can be ascertained, the majority insists,61 from the
following deliberations in the Bicameral Conference Committee on May 7, 1991:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION
ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are included, how
about a series of the same act? For example, through misappropriation, conversion, misuse, will these be
included also?
THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.
 REP. ISIDRO: That’s not series. It’s a combination. Because when we say combination or series, we
REP. ISIDRO: Series. seem to say that two or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA): Yeah, we include series. THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes. That
is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary
REP. ISIDRO: But we say we begin with a combination. crime but we have here a combination or series of overt or criminal acts. So…

THE CHAIRMAN: (REP. GARCIA): Yes. HON. ISIDRO: I know what you are talking about. For example, through misappropriation, conversion,
misuse or malversation of public funds who raids the public treasury, now, for example,
REP. ISIDRO: When we say combination, it seems that- misappropriation, if there are a series of misappropriations?

THE CHAIRMAN (REP. GARCIA): Two. xxx

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…
enumeration.
THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?
THE CHAIRMAN: (REP. GARCIA): No, no, not twice.
THE CHAIRMAN (REP. GARCIA): Series, oo.
REP. ISIDRO: Not twice?
REP. ISIDRO: Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but combination, two acts.
THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination. Series.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean two different acts. It
can not be a repetition of the same act. REP. ISIDRO: So, it is not a combination?

THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah. THE CHAIRMAN (REP. GARCIA): Yes.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. ISIDRO: When you say "combination", two different?

THE CHAIRMAN (REP. GARCIA): A series. THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (SEN. TAÑADA): Two different.


REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha…
REP. ISIDRO: Now a series, meaning, repetition…62
The following deliberations in the Senate are pointed to by the majority63 to show that the words
"combination" and "series" are given their ordinary meaning:
Senator Maceda. In line of our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series
of overt or". To read, therefore: "or conspiracy COMMITTED by criminal acts such as". Remove the
idea of necessitating "a series". Anyway, the criminal acts are in the plural.
Senator Tañada. That would mean a combination of two or more of the acts mentioned in this.
The President. Probably, two or more would be….
Senator Maceda. Yes, because ‘a series’ implies several or many’ two or more.
Senator Tañada. Accepted, Mr. President.
xxx
The President. If there is only one, then he has to be prosecuted under the particular crime. But when we
say ‘acts of plunder’ there should be, at least, two or more.
Senator Romulo. In other words, that is already covered by existing laws, Mr. President.64
To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well as
recourse to the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy
the strict requirements of the Constitution on clarity and definiteness. Note that the key element to the
crime of plunder is that the public officer, by himself or in conspiracy with others, amasses,
accumulates, or acquires "ill-gotten wealth" through a "combination or series of overt or criminal acts"
as described in Section 1(d) of the law. Senator Gonzales, during the deliberations in the Senate, already
raised serious concern over the lack of a statutory definition of what constitutes "combination" or
"series", consequently, expressing his fears that Section 2 of R.A. No. 7080 might be violative of due
process:
Senator Gonzales. To commit the offense of plunder, as defined in this Act and while constituting a
single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion,
malversation of public funds, swindling, illegal exaction, and graft or corrupt practices act and like
offenses. Now, Mr. President, I think, this provision, by itself will be vague. I am afraid that it might be
faulted for being violative of the due process clause and the right to be informed of the nature and cause
of accusation of an accused. Because, what is meant by "series of overt or criminal acts"? I mean, would
2, 3, 4 or 5 constitute a series? During the period of amendments, can we establish a minimum of overt
acts like, for example, robbery in band? The law defines what is robbery in band by the number of
participants therein. In this particular case probably, we can statutorily provide for the definition of
"series" so that two, for example, would that be already a series? Or, three, what would be the basis for
such determination?65 (Emphasis supplied.)
The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s observation that
when penal laws enacted by Congress make reference to a term or concept requiring a quantitative
definition, these laws are so crafted as to specifically state the exact number or percentage necessary to
constitute the elements of a crime. To cite a few:
"Band" – "Whenever more than three armed malefactors shall have acted together in the commission of
an offense, it shall be deemed to have been committed by a band." (Article 14[6], Revised Penal
Code)66
"Conspiracy" – "A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it." (Article 8, Revised Penal Code)67
"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring and/or confederating with one another in
carrying out any unlawful or illegal transaction, enterprise or scheme x x x." (Section 38, Labor Code)
"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or as a group." (Section 38, Labor Code)
"Organized/Syndicated Crime Group" – "[M]eans a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any crime."
(Article 62 (1)(1a), Revised Penal Code)68
"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed by a syndicate consisting of
five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme x x x ." (Section 1, P.D. No. 1689)69
The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority,
consisting mostly of unfinished sentences, offer very little help in clarifying the nebulous concept of
plunder. All that they indicate is that Congress seemingly intended to hold liable for plunder a person
who: (1) commits at least two counts of any one of the acts mentioned in Section 1(d) of R.A. No. 7080,
in which case, such person commits plunder by a series of overt criminal acts; or (2) commits at least
one count of at least two of the acts mentioned in Section 1(d), in which case, such person commits
plunder by a combination of overt criminal acts. Said discussions hardly provide a window as to the
exact nature of this crime.
A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada would
imply that initially, combination was intended to mean "two or more means,"70 i.e., "number one and
two or number one and something else x x x,"71 "two of the enumerated means not twice of one
enumeration,"72 "two different acts."73 Series would refer to "a repetition of the same act."74 However,
the distinction was again lost as can be gleaned from the following:
THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but combination, two acts.
REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different acts. It
can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or series, we
seem to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I said,
that’s a very good suggestion, because if its’ only one act, it may fall under ordinary crime. But we have
here a combination or series, of overt or criminal acts" (Emphasis supplied).75
xxx
THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di…
THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term "series"?
THE CHAIRMAN (REP. GARCIA P) Series, oo.
REP. ISIDRO. Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not be combination. Series.
REP. ISIDRO. So, it is not a combination?
THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. When we say "combination", two different?
THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.
THE CHAIRMAN (REP. GARCIA P.) Yes.
THE CHAIRMAN (REP. GARCIA P.) Okay?
THE CHAIRMAN (SEN. TAÑADA) Two different.
REP. ISIDRO. Very good.
REP. ISIDRO. Two different acts.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
THE CHAIRMAN (REP. GARCIA P.) For example, ha…
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.
REP. ISIDRO. Now a series, meaning, repetition…
The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)
THE CHAIRMAN (SEN. TAÑADA) Yes.
The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to render
REP. ISIDRO. With that… precise the definition of the terms. Phrases were uttered but were left unfinished. The examples cited
were not very definite. Unfortunately, the deliberations were apparently adjourned without the
THE CHAIRMAN (REP. GARCIA P.) Thank you. Committee members themselves being clear on the concept of series and combination.

THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in paragraphs
1, 3, 4, 5 of Section 2 (d), or… 1 (d) rather, or a combination of any of the acts mentioned in paragraph
1 alone, or paragraph 2 alone or paragraph 3 or paragraph 4.
THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?
THE CHAIRMAN (SEN. TAÑADA) Series or combination.
REP. ISIDRO. Which one, combination or series or series or combination?
Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and
acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of the means
enumerated in Section 1(d), and "series," to at least two counts of one of the modes under said section,
the accused could be meted out the death penalty for acts which, if taken separately, i.e., not considered
as part of the combination or series, would ordinarily result in the imposition of correctional penalties
only. If such interpretation would be adopted, the Plunder law would be so oppressive and arbitrary as
to violate due process and the constitutional guarantees against cruel or inhuman punishment.77 The
penalty would be blatantly disproportionate to the offense. Petitioner’s examples illustrate this
absurdity:

THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision
sa portion ng… Saan iyon? As mentioned, as described… correccional in its medium and maximum periods),

THE CHAIRMAN (REP. GARCIA P.) Described. I think that is… combined with -

one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with
prision correccional in its medium period to prision mayor in its minimum period).
equals –
Plunder (punished by reclusion perpetua to death plus forfeiture of assets under R. A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the Revised Penal Code with prision
correccional in its minimum period or a fine ranging from P200 to P1,000 or both).
combined with –
one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with
prision correccional in its minimum or a fine ranging from P200 to P6,00, or both.
equals –
Plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080).
c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in
its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code).
combined with –
one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised Penal
Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both),
equals –
plunder (punished by reclusion perpetua to death, and forfeiture of assets).78
The argument that higher penalties may be imposed where two or more distinct criminal acts are
combined and are regarded as special complex crimes, i.e., rape with homicide, does not justify the
imposition of the penalty of reclusion perpetua to death in case plunder is committed. Taken singly, rape
is punishable by reclusion perpetua;79 and homicide, by reclusion temporal.80 Hence, the increase in
the penalty imposed when these two are considered together as a special complex crime is not too far
from the penalties imposed for each of the single offenses. In contrast, as shown by the examples above,
there are instances where the component crimes of plunder, if taken separately, would result in the
imposition of correctional penalties only; but when considered as forming part of a series or
combination of acts constituting plunder, could be punishable by reclusion perpetua to death. The
disproportionate increase in the penalty is certainly violative of substantive due process and constitute a
cruel and inhuman punishment.
It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the
acquisition of property (by the accused himself or in connivance with others) "by any combination or
series" of the "means" or "similar schemes" enumerated therein, which include the following:
xxx
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
forms of interest or participation including the promise of future employment or any business enterprise
or undertakings;
5. By establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to benefit particular persons or special interests;
xxx
The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They
involve the exercise of the right to liberty and property guaranteed by Article III, Section 1 of the
Constitution which provides that "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." Receiving or accepting
any shares of stock is not per se objectionable. It is in pursuance of civil liberty, which includes "the
right of the citizen to be free to use his faculties in all lawful ways; x x x to earn his livelihood by any
lawful calling; to pursue any avocation, and/or that purpose, to enter into all contracts which may be
proper, necessary and essential to his carrying out these purposes to a successful conclusion.81 Nor is
there any impropriety, immorality or illegality in establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation of decrees and orders even if they are intended
to benefit particular persons or special interests. The phrases "particular persons" and "special interests"
may well refer to the poor,82 the indigenous cultural communities,83 labor,84 farmers,85 fisherfolk,86
women,87 or those connected with education, science and technology, arts, culture and sports.88
In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code are
punishable because, as specifically defined therein, they are "on restraint of trade or commerce or to
prevent by artificial means of free competition in the market, or the object is "to alter the price" of any
merchandise "by spreading false rumors," or to manipulate market prices in restraint of trade. There are
no similar elements of monopolies or combinations as described in the Plunder Law to make the acts
wrongful.
If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more"
acts, and "combination as defined in the Webster’s Third New International Dictionary is "the result or
product of combining one thing with another,"89 then, the commission of two or more acts falling under
paragraphs (4) and (5) of Section 1(d) would make innocent acts protected by the Constitution as
criminal, and punishable by reclusion perpetua to death.
R.A. No. 7080 does not define "pattern,"
an essential element of the crime of plunder.
Granting arguendo that, as asserted by the majority, "combination" and "series" simplistically mean the
commission of two or more of the acts enumerated in Section 1(d),90 still, this interpretation does not
cure the vagueness of R.A. No. 7080. In construing the definition of "plunder," Section 2 of R.A. No.
7080 must not be read in isolation but rather, must be interpreted in relation to the other provisions of
said law. It is a basic rule of statutory construction that to ascertain the meaning of a law, the same must
be read in its entirety.91 Section 1 taken in relation to Section 4 suggests that there is something to
plunder beyond simply the number of acts involved and that a grand scheme to amass, accumulate or
acquire ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2 pertain only to the nature
and quantitative means or acts by which a public officer, by himself or in connivance with other
persons, "amasses, accumulates or acquires ill-gotten wealth." Section 4, on the other hand, requires the
presence of elements other than those enumerated in Section 2 to establish that the crime of plunder has
been committed because it speaks of the necessity to establish beyond reasonable doubt a "pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and that this
was acquired by any two or more of the acts described in Section 1(d); it is necessary that these acts
constitute a "combination or series" of acts done in furtherance of "the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth", and which constitute "a pattern of overt or criminal acts
indicative of the overall scheme or conspiracy."
That pattern is an essential element of the crime of plunder is evident from a reading of the assailed law
in its entirety. It is that which would distinguish plunder from isolated criminal acts punishable under
the Revised Penal Code and other laws, for without the existence a "pattern of overt or criminal acts
indicative of the overall scheme or conspiracy" to acquire ill-gotten wealth, a person committing several
or even all of the acts enumerated in Section 1(d) cannot be convicted for plunder, but may be convicted
only for the specific crimes committed under the pertinent provisions of the Revised Penal Code or
other laws.
For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of procedure. It does
not become such simply because its caption states that it is, although its wording indicates otherwise. On
the contrary, it is of substantive character because it spells out a distinctive element of the crime which
has to be established, i.e., an overall unlawful "scheme or conspiracy" indicated by a "pattern of overt or
criminal acts" or means or similar schemes "to amass, accumulate or acquire ill-gotten wealth."
The meaning of the phrase "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy," however, escapes me. As in "combination" and "series," R.A. No. 7080 does not provide a
definition of "pattern" as well as "overall unlawful scheme." Reference to the legislative history of R.A.
No. 7080 for guidance as to the meanings of these concepts would be unavailing, since the records of
the deliberations in Congress are silent as to what the lawmakers mean by these terms.
Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly inadequate. These
words are defined as:
pattern: an arrangement or order of things or activity.92
scheme: design; project; plot.93
At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or more)
is necessary, this is not sufficient to constitute plunder. As stated earlier, without the element of
"pattern" indicative of an "overall unlawful scheme," the acts merely constitute isolated or disconnected
criminal offenses punishable by the Revised Penal Code or other special laws.
The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall into a
"pattern" or "any arrangement or order." It is not the number of acts but the relationship that they bear to
each other or to some external organizing principle that renders them "ordered" or "arranged":
A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number of
predicates is no guarantee that they fall into an arrangement or order. It is not the number of predicates
but the relationship that they bear to each other or to some external organizing principle that renders
them ‘ordered’ or ‘arranged.’ 94
In any event, it is hardly possible that two predicate acts can form a pattern:
The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common
parlance, two of anything will not generally form a ‘pattern.’95
In H. J. Inc. v. Northwestern Bell Telephone Co. et al.96 (hereinafter referred to as Northwestern), the
U.S. Court reiterated the foregoing doctrine:
xxx Nor can we agree with those courts that have suggested that a pattern is established merely by
proving two predicate acts.97
Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or criminal acts of
the accused) meeting at a common center (the acquisition of ill-gotten wealth) and with a rim (the
overall unlawful scheme or conspiracy) of the wheel enclosing the spokes, is off tangent. Their position
that two spokes suffice to make a wheel, even without regard to the relationship the spokes bear to each
other clearly demonstrates the absurdity of their view, for how can a wheel with only two spokes which
are disjointed function properly?
That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is reasonably defined
is precisely the point of the incisive concurring opinion of Justice Antonin Scalia in Northwestern where
he invited a constitutional challenge to the RICO law on "void-for-vagueness" ground.98 The RICO law
is a federal statute in the United States that provides for both civil and criminal penalties for violation
therefor. It incorporates by reference twenty-four separate federal crimes and eight types of state
felonies.99 One of the key elements of a RICO violation is that the offender is engaged in a "pattern of
racketeering activity."100 The RICO law defines the phrase "pattern of racketeering activity" as
requiring "at least two acts of racketeering activity, one of which occurred after the effective date of 18
USCS § 1961, and within ten years (excluding any period of imprisonment) after the commission of a
prior act of racketeering activity."101 Incidentally, the Solicitor General claims that R.A. No. 7080 is an
entirely different law from the RICO law. The deliberations in Congress reveal otherwise. As observed
by Rep. Pablo Garcia, Chairman of the House of Representatives Committee on Justice, R.A. No. 7080
was patterned after the RICO law.102
In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to illuminate RICO’s
key requirement of a pattern of racketeering," the U.S. Supreme Court, through Justice William J.
Brennan, Jr., undertook the task of developing a meaningful concept of "pattern" within the existing
statutory framework.103 Relying heavily on legislative history, the US Supreme Court in that case
construed "pattern" as requiring "continuity plus relationship."104 The US Supreme Court formulated
the "relationship requirement" in this wise: "Criminal conduct forms a pattern if it embraces criminal
acts that have the same or similar purposes, results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and are not isolated events."105 Continuity is
clarified as "both a closed and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of repetition."106

In his separate concurring opinion, Justice Scalia rejected the majority’s formulation. The "talismanic
phrase" of "continuity plus relationship" is, as put by Justice Scalia, about as helpful as advising the
courts that "life is a fountain." He writes:
x x x Thus, when §1961(5) says that a pattern "requires at least two acts of racketeering activity" it is
describing what is needful but not sufficient. (If that were not the case, the concept of "pattern" would
have been unnecessary, and the statute could simply have attached liability to "multiple acts of
racketeering activity"). But what that something more is, is beyond me. As I have suggested, it is also
beyond the Court. Today’s opinion has added nothing to improve our prior guidance, which has created
a kaleidoscope of Circuit positions, except to clarify that RICO may in addition be violated when there
is a "threat of continuity." It seems to me this increases rather than removes the vagueness. There is no
reason to believe that the Court of Appeals will be any more unified in the future, than they have in the
past, regarding the content of this law.
That situation is bad enough with respect to any statute, but it is intolerable with respect to RICO. For it
is not only true, as Justice Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479 x x x,
that our interpretation of RICO has "quite simply revolutionize[d] private litigation" and "validate[d] the
federalization of broad areas of state common law of frauds," x x x so that clarity and predictability in
RICO’s civil applications are particularly important; but it is also true that RICO, since it has criminal
applications as well, must, even in its civil applications, possess the degree of certainty required for
criminal laws x x x. No constitutional challenge to this law has been raised in the present case, and so
that issue is not before us. That the highest court in the land has been unable to derive from this statute
anything more than today’s meager guidance bodes ill for the day when that challenge is presented.107
It bears noting that in Northwestern the constitutionality of the RICO law was not challenged.108 After
Northwestern, the U.S. Supreme Court has so far declined the opportunity to hear cases in which the
void-for-vagueness challenge to the pattern requirement was raised.109
Admittedly, at the district courts level, the state statutes (referred to as Little RICOS)110 have so far
successfully survived constitutional challenge on void-for-vagueness ground. However, it must be
underscored that, unlike R.A. No. 7080, these state anti-racketeering laws have invariably provided for a
reasonably clear, comprehensive and understandable definition of "pattern."111 For instance, in one
state, the pattern requirement specifies that the related predicate acts must have, among others, the same
or similar purpose, result, principal, victims or methods of commission and must be connected with
"organized crime.112 In four others, their pattern requirement provides that two or more predicate acts
should be related to the affairs of the enterprise, are not isolated, are not closely related to each other
and connected in point of time and place, and if they are too closely related, they will be treated as a
single act.113 In two other states, pattern requirements provide that if the acts are not related to a
common scheme, plan or purpose, a pattern may still exist if the participants have the mental capacity
required for the predicate acts and are associated with the criminal enterprise.114
All the foregoing state statutes require that the predicate acts be related and that the acts occur within a
specified time frame.
Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit courts in the
United States. Their divergent conclusions have functioned effectively to create variant criminal
offenses.115 This confusion has come about notwithstanding that almost all these state laws have
respectively statutorily defined "pattern". In sharp contrast, R.A. No. 7080, as earlier pointed out, lacks
such crucial definition. As to what constitutes pattern within the meaning of R.A. No. 7080 is left to the
ad hoc interpretation of prosecutors and judges. Neither the text of R.A. No. 7080 nor legislative history
afford any guidance as to what factors may be considered in order to prove beyond reasonable doubt
"pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or
"pertaining to two or more" and "combination" is the "result or product or product of combining."
Whether two or more or at least three acts are involved, the majority would interpret the phrase
"combinations' or "series" only in terms of number of acts committed. They entirely overlook or ignore
Section 4 which requires "a pattern of overt of criminal acts indicative of the overall unlawful scheme or
conspiracy" to convict.
If the elements of the offense are as what the majority has suggested, the crime of plunder could have
been defined in the following manner:
Where a public official, by himself or in conspiracy with others, amasses or acquires money or property
by committing two or more acts in violation of Section 3 of the Anti-Graft and Corrupt Practices Act
(R.A. 3019), or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the Revised Penal Code, he shall
be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.
The above would be a straightforward and objective definition of the crime of plunder. However, this
would render meaningless the core phrases "a combination or series of" "overt or criminal acts
indicative of the overall unlawful scheme or conspiracy," or the phrase "any combination or series of the
following means or similar schemes" or "a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy."
But that obviously is not the definition of the crime of plunder under R.A. 7080. There is something
more. A careful reading of the law would unavoidably compel a conclusion that there should be a
connecting link among the "means or schemes" comprising a "series or combination" for the purpose of
acquiring or amassing "ill-gotten wealth." The bond or link is an "overall unlawful scheme or
conspiracy mentioned in Section 4. The law contemplates a combination or series of criminal acts in
plunder done by the accused "in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth." It does not postulate acts committed randomly, separately or independently or
sporadically. Otherwise stated, if the legislature intended to define plunder as the acquisition of ill-
gotten wealth in the manner espoused by the majority, the use in R.A. 7080 of such words and phrases
as "combination" and "series of overt or criminal acts" xxx "in furtherance of the scheme or conspiracy"
is absolutely pointless and meaningless.
R.A. No. 7080 makes it possible for a person
conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.
Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court."
Both parties share the view that the law as it is worded makes it possible for a person who participates in
the commission of only one of the component crimes constituting plunder to be liable as co-conspirator
for plunder, not merely the component crime in which he participated.116 While petitioner concedes
that it is easy to ascertain the penalty for an accomplice or accessory under R.A. No. 7080, such is not
the case with respect to a co-principal of the accused.117 In other words, a person who conspires with
the accused in the commission of only one of the component crimes may be prosecuted as co-principal
for the component crime, or as co-principal for the crime of plunder, depending on the interpretation of
the prosecutor. The unfettered discretion effectively bestowed on law enforcers by the aforequoted
clause in determining the liability of the participants in the commission of one or more of the
component crimes of a charge for plunder undeniably poses the danger of arbitrary enforcement of the
law.118
R.A. No. 7080 does not clearly state
the prescriptive period of the crime of plunder.
Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in twenty
(20) years. Considering that the law was designed to cover a "combination or series of overt or criminal
acts," or "a pattern of overt or criminal acts," from what time shall the period of prescription be
reckoned? From the first, second, third or last act of the series or pattern? What shall be the time gap
between two succeeding acts? If the last act of a series or combination was committed twenty or more
years after the next preceding one, would not the crime have prescribed, thereby resulting in the total
extinction of criminal liability under Article 89(b) of the Revised Penal Code? In antithesis, the RICO
law affords more clarity and definiteness in describing "pattern of racketeering activity" as "at least two
acts of racketeering activity, one of which occurred within ten years (excluding any period of
imprisonment) after the commission of a prior act of racketeering activity."119119 119 The U.S. state
statutes similarly provide specific time frames within which racketeering acts are committed.
The Solicitor General enjoins the Court to rectify the deficiencies in the law by judicial construction.
However, it certainly would not be feasible for the Court to interpret each and every ambiguous
provision without falling into the trap of judicial legislation. A statute should be construed to avoid
constitutional question only when an alternative interpretation is possible from its language.120
Borrowing from the opinion of the court121 in Northwestern,122 the law "may be a poorly drafted
statute; but rewriting it is a job for Congress, if it so inclined, and not for this Court." But where the law
as the one in question is void on its face for its patent ambiguity in that it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and differ as to its
application, the Court cannot breathe life to it through the guise of construction.
R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.
Section 4 provides that for the purpose of establishing the crime of plunder, "it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
The majority would interpret this section to mean that the prosecution has the burden of "showing a
combination or series resulting in the crime of plunder." And, once the minimum requirements for a
combination or a series of acts are met, there is no necessity for the prosecution to prove each and every
other act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate, or
acquire ill-gotten wealth.123
By its language, Section 4 eliminates proof of each and every component criminal act of plunder by the
accused and limits itself to establishing just the pattern of overt or criminal acts indicative of unlawful
scheme or conspiracy. The law, in effect, penalizes the accused on the basis of a proven scheme or
conspiracy to commit plunder without the necessity of establishing beyond reasonable doubt each and
every criminal act done by the accused in the crime of plunder. To quote Fr. Bernas again: "How can
you have a ‘series’ of criminal acts if the elements that are supposed to constitute the series are not
proved to be criminal?"124
Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act done by
the accused in the furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being
sufficient just to prove a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy, the Plunder Law effectively eliminated the mens rea or criminal intent as an element of the
crime. Because of this, it is easier to convict for plunder and sentence the accused to death than to
convict him for each of the component crimes otherwise punishable under the Revised Penal Code and
other laws which are bailable offenses. The resultant absurdity strikes at the very heart if the
constitutional guarantees of due process and equal protection.
Plunder is a malum in se.
The acts enumerated in Section 1(d) are mostly defined and penalized by the Revised Penal Code, e.g.
malversation, estafa, bribery and other crimes committed by public officers. As such, they are by nature
mala in se crimes. Since intent is an essential element of these crimes, then, with more reason that
criminal intent be established in plunder which, under R.A. No. 7659, is one of the heinous crimes125
as pronounced in one of its whereas clauses.126
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law does
not necessarily make the same mala prohibita where criminal intent is not essential, although the term
refers generally to acts made criminal by special laws. For there is a marked difference between the two.
According to a well-known author on criminal law:
There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft,
rape, homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by statute,
such as illegal possession of firearms.
Crimes mala in se are those so serious in their effects on society as to call for almost unanimous
condemnation of its members; while crimes mala prohibita are violations of mere rules of convenience
designed to secure a more orderly regulation of the affairs of society. (Bouvier’s Law Dictionary,
Rawle’s 3rd Revision)
(1) In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has the law been
violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in illegal
possession of firearms. (People vs. Conosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code.
When the acts are inherently immoral, they are mala in se, even if punished by special laws. On the
other hand, there are crimes in the Revised Penal Code which were originally defined and penalized by
special laws. Among them are possession and use of opium, malversation, brigandage, and libel.127
The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral, are
patently mala in se, even if punished by a special law and accordingly, criminal intent must clearly be
established together with the other elements of the crime; otherwise, no crime is committed. By
eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond reasonable doubt the
component acts constituting plunder and imposes a lesser burden of proof on the prosecution, thus
paving the way for the imposition of the penalty of reclusion perpetua to death on the accused, in plain
violation of the due process and equal protection clauses of the Constitution. Evidently, the authority of
the legislature to omit the element of scienter in the proof of a crime refers to regulatory measures in the
exercise of police power, where the emphasis of the law is to secure a more orderly regulations of the
offense of society, rather than the punishment of the crimes. So that in mala prohibita prosecutions, the
element of criminal intent is a requirement for conviction and must be provided in the special law
penalizing what are traditionally mala in se crimes. As correctly pointed out by petitioner,128 citing
U.S. Supreme Court decisions, the Smith Act was ruled to require "intent" to advocate129 and held to
require knowledge of illegal advocacy.130 And in another case,131 and ordinance making illegal the
possession of obscene books was declared unconstitutional for lack of scienter requirement.
Mens rea is a substantive due process requirement under the Constitution, and this is a limitation on
police power. Additionally, lack of mens rea or a clarifying scienter requirement aggravates the
vagueness of a statute.
In Morisette v. U.S.132 the U.S. Supreme Court underscored the stultifying effect of eliminating mens
rea, thus:
The Government asks us by a feat of construction radically to change the weights and balances in the
scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is
to ease the prosecution’s party to conviction, to strip the defendant of such benefit as he derived at
common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries.
Such a manifest impairment of the immunities of the individual should not be extended to common law
crimes on judicial initiative.
In the same breath, Justice Florenz Regalado expreses serious doubts as to the authority of the
legislature to complex mala in se crimes with mala prohibita, saying:
x x x although there has been a tendency to penalize crimes under special laws with penalties
"borrowed" from the Code, there is still the question of legislative authority to consolidate crimes
punished under different statutes. Worse, where one is punished under the Code and the other by the
special law, both of these contingencies had not been contemplated when the concept of a delito
complejo was engrafted into the Code.133
Petitioner is not estopped from questioning
the constitutionality of R.A. No. 7080.
The case at bar has been subject to controversy principally due to the personalities involved herein. The
fact that one of petitioner’s counsels134 was a co-sponsor of the Plunder Law135 and petitioner himself
voted for its passage when he was still a Senator would not in any put him in estoppel to question its
constitutionality. The rule on estoppel applies to questions of fact, not of law.136 Moreover, estoppel
should be resorted to only as a means of preventing injustice.137 To hold that petitioner is estopped
from questioning the validity of R.A. No. 7080 because he had earlier voted for its passage would result
in injustice not only to him, but to all others who may be held liable under this statute. In People vs.
Vera,138 citing the U.S. case of Attorney General v. Perkins, the Court held:
x x x The idea seems to be that the people are estopped from questioning the validity of a law enacted
by their representatives; that to an accusation by the people of Michigan of usurpation upon their
government, a statute enacted by the people of Michigan is an adequate statute relied on in justification
is unconstitutional, it is a statute only in form, and lacks the force of law, and is of no more saving effect
to justify action under it it had never been enacted. the constitution is the supreme law, and to its behests
the courts, the legislature, and the people must bow. x x x139
The Court should not sanction the use of an equitable remedy to defeat the ends of justice by permitting
a person to be deprived of his life and liberty under an invalid law.
Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a response to the
felt need at the time that existing laws were inadequate to penalize the nature and magnitude of
corruption that characterized a "previous regime."140 However, where the law, such as R.A. 7080, is so
indefinite that the line between innocent and condemned conduct becomes a matter of guesswork, the
indefiniteness runs afoul of due process concepts which require that persons be given full notice of what
to avoid, and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and
discriminatory enforcement, be limited by explicit legislative standards.141 It obfuscates the mind to
ponder that such an ambiguous law as R.A. No. 7080 would put on the balance the life and liberty of the
accused against whom all the resources of the State are arrayed. It could be used as a tool against
political enemies and a weapon of hate and revenge by whoever wields the levers of power.
I submit that the charge against petitioner in the Amended Information in Criminal Case No. 26558 does
not constitute "plunder" under R.A. No. 7080, as amended by R.A. No. 7659. If at all, the acts charged
may constitute offenses punishable under the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) or
the Revised Penal Code. Hence, the information charging petitioner with plunder must be quashed. Such
quashal, however, should be without prejudice to the filing of new informations for acts under R.A. No.
3019, of the Revised Penal Code and other laws. Double jeopardy would not bar the filing of the same
because the dismissal of the case is made with the express consent of the petitioner-accused.142
In view of the foregoing, I vote to GRANT the petition.
Footnotes
1 Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his column "Sounding Board", Today,
September 26, 2001, p. 6.
2 An Act to Impose the Death Penalty on Certain Heinous Crimes, amending for that purpose the
Revised Penal Code and Other Special Penal Laws, namely: Dangerous Drugs Act, Crime of Plunder,
and Anti-Carnapping Act (1993).
3 87 O.G. 38, pp. 5488-5490 (1991).
4 Annex "C" of Petition.
5 Amended Petition, p. 8.
6 Section 1(d).
7 Memorandum for Petitioner, p.11.
8 Amended Petition., pp. 13-17; Memorandum for Petitioner, pp. 16-24.
According to petitioners:
a. While American federal courts in the First Circuit in the U.S. have defined "series of acts or
transactions" for purposes of Rule 8(b) of the Federal Rules of Criminal Procedure to refer only to "joint
criminal enterprise" [U.S. v. Turkette (1980, CA 1 Mass. 632 F 2d 896)] under a common scheme [U.S.
v. J. Tirocchi & Sons, Inc. (1960 DC RI) 187 F. Supp. 778], the courts in the Second Circuit insist that
"series of acts and transactions" should mean that there should be "connection between the offenses"
[U.S. v. Charney (1962, SD BY) 211 F. Supp. 904] or "direct relationship between counts" [U.S. v.
Haim (1963 SD NY), 218 F. Supp. 922] or "substantial identity of facts and participants" [U.S. v. Olin
Corp. (1979, WD NY), 465 S. Supp. 1120].
b. Still on the U.S. Federal courts, the courts in the Third Circuit define "series of acts" following the
"direct relationship between acts" standard of the Second Circuit; for example, U.S. v. Stafford (1974,
ED Pa.), 382 F. Supp. 1401) using "factual relationship between acts"; U.S. v. Slawik (1975, DC Del.)
408 F. Supp. 190, using "connection between charges"; U.S. v. Cohen (1978, ED Pa.) 444 F. Supp.
1314, using "direct relationship between offenses"; and U.S. v. Serubo (1978, ED Pa.) 460 F. Supp.
689), using "direct relationship between offenses", but the federal courts in the Fourth Circuit follow the
"common scheme" standard, as in Rakes v. U.S. (169 F2d 730). 19 Id., at 33-34.

c. The Sixth Circuit courts define "series" to mean "common scheme" (e.g. U.S. v. Russo (480 F2d 20 Comment, pp. 37-42; Memorandum for Respondents, pp. 82-84.
1228) and so do the courts in the Seventh Circuit (e.g. U.S. v. Scott, (1969, CA 7 Ill.) (413 F2d 932),
and Eighth Circuit Courts (e.g. Haggard v. U.S. (1966, CA 8 Mo.) 369 F2d 968), but the courts in the 21 Reply to Comment, p. 12.
Fifth Circuit follow the "close connection between acts" standard, (e.g. U.S. v. Laca (1974 CA 5 Tex)
593 F2d 615) or "substantial identity of facts and participants" (e.g. U.S. v. Levine (1977 CA 5 Fla.) 546 22 Id., at 14-15.
F2d 658; U.S. v. Marionneaux (1975 CA 5 La.) 514 F2d 1244) together with federal courts in the Ninth
Circuit (e.g. U.S. v. Ford (1980 CA 9 Cal..) 632 F2d 1354) and those in the District of Columbia Circuit 23 TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3.
(U.S. v. Jackson (1977) 562 F2d 789; U.S. v. Bachman, (1958 DC Dist. Col.) 164 F. Suppl. 898).
[Amended Petition, pp. 14-16; Memorandum for Petitioner, pp. 20-22.] 24 Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Court of Appeals, 269 SCRA 402 (1997).

9 Amended Petition, pp. 18-19; Memorandum for Petitioner, pp. 34-45. 25 Morfe vs. Mutuc, 22 SCRA 424 (1968).

10 Id., at 13-14; Id., at 19. 26 State v. Vogel, 467 N.W.2d 86 (1991).

11 Id., at 16-17; Id., at 23. 27 See Id.

12 Id., at 25-34. 28 ART. III, Sections 1, 12 and 14.

13 Id., at 27-31;Id., at. 66-76. In Ermita-Malate Hotel and Motel Operators Association, Inc. vs. City Mayor of Manila (20 SCRA 849
[1967]), the Court expounded on the concept of due process as follows:
14 Id., at 27-35; Id.,. at 76-83.
x x x What then is the standard of due process which must exist both as a procedural and a substantive
15 Comment, pp. 11-13; Memorandum for Respondents, pp. 30-32. requisite to free the challenged ordinance, or any governmental action for that matter, from the
imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of
16 Ibid.; Id., at 49-50. reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun
17 Id., at 13-25; Id., at 58-59. the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action
marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the
18 Id., at 28-33; Id.., at 70-77. embodiment of the sporting idea of fair play. It exacts fealty 'to those strivings for justice' and judges the
act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought.' It is not a narrow or 'technical conception
with fixed content unrelated to time, place and circumstances,' decisions based on such a clause
requiring a 'close and perceptive inquiry into fundamental principles of our society." Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrases (at pp. 860-861).
42 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE
DOCTRINE, American Constitutional Law (2nd) (1998), p. 1033 citing Lanzetta v. New Jersey, 306
U.S. 451 (1939). See also Springfield Armory, Inc. v City of Columbus, 29 F.3d 250, 1994 FED App
239P (6th Cir. 1994); Connally v. General Construction Company, 269 U.S. 385 (1926); Lambert v.
California, 355 U.S. 225 1957); Kolender v. Lawson, supra.

29 ART. III, Section 14. 43 THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law – Substance and Procedure,
Vol. IV (1992), pp. 25-31; 36-37.
30 People v. Nazario, 165 SCRA 186 (1988).
44 See Note 42.
31 347 U.S. 612 (1954).
45 Springfield Armory, Inc. v City of Columbus, supra.
32 Id., at 617.
46 See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10-12.
33 Kolender v. Lawson, 461 U.S. 352 (1983).
47 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE
34 Ibid. DOCTRINE, American Constitutional Law (2nd) [1998], p. 1033 citing Lanzetta v. New Jersey, 306
U.S. 451 [1939]. See also Springfield Armory, Inc. v City of Columbus, 29 F.3d 250, 1994 FED App
35 See Grayned v. City of Rockford, 408 U.S. 104 (1972). 239P [6th Cir. 1994]; Connally v. General Construction Company, 269 U.S. 385 [1926]; Lambert v.
California, 355 U.S. 225 [1957]; Kolender v. Lawson, 461 U.S. 352 [1953].
36 Ibid.
48 413 U.S. 601 [1973].
37 Kolender, supra.
49 VAGUENESS AND OVERBREADTH, AN OVERVIEW, Lockhart et al. Constitutional Law,
38 Ibid. Cases-Comments-Questions [6th Ed, 1986], p. 740.

39 Section 2. 50 Springfield v. Oklahoma, supra; Kolender v. Lawson, supra.

40 See FCC v. American Broadcasting Co., 347 US 284 (1954). 51 Supra.

41 See Dissenting Opinion of Justice Vicente V. Mendoza, pp. 10-12. 52 Supra.

53 At p. 253.
54 See Concurring Opinion of Justice Mendoza, p. 5.
55 See Decision, p. 7.
56 The transcript of Stenographic Notes of the Hearing in Criminal Case No. 26561 on June 13, 2001, p.
16 reads:
PJ Garchitorena:
xxx
But you see, I will provoke you. Forgive us for provoking you, but we ourselves have been quarrelling
with each other in finding ways to determine what we understand by plunder.
xxx
57 Infra.
58 In his column on the April 25, 2001 issue of Today, Fr. Bernas stated:
xxx
One question that has come up is whether a public official can commit more than one crime of plunder
during his or her incumbency. There are those who hold that the law describes only one crime and that it
cannot be split into several offenses. This would mean that the prosecution must weave a web of
offenses out of the six ways of illegally amassing wealth and show how the various acts reveal a
combination or series of means or schemes which reveal a pattern of criminality. My understanding is
that under such a reading the six ways of amassing wealth should not be seen as separate from each
other but must be shown to be parts of one combination or scheme. The interrelationship of the separate
acts must be shown.
An alternate reading of the law, which is perhaps easier to prove but harsher on the accused, is that each
one of the six ways of amassing wealth can constitute plunder if the total take adds up to the required
P75 million.
xxx
There is another provision in the law which I find intriguing. It says: "For purposes of establishing the
crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being
sufficient to establish beyond reasonable doubt a pattern of overt criminal acts indicative of the overall
unlawful scheme or conspiracy." Is this an indication that there is only one crime of plunder under the
statute?
Fr. Bernas also discussed the vagueness of "combination" or "series" in the July 1, 2001 issue of Today:
Taken individually, the elements that are supposed to constitute the series can be well understood. But
now the Estrada lawyers are asking when precisely these elements constitute a "combination or series".
The question is important because of an intriguing provision in the plunder law: "For purposes of
establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by
the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt criminal acts
indicative of the overall unlawful scheme or conspiracy." How can you have a "series of criminal acts if
the elements that are supposed to constitute the series are not proved to be criminal?
59 Decision, p. 12.
60 Id., at 14.
61 Decision, pp. 12-14.
62 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND 76 Id., at 42-43.
COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991,
pp. 39-40. 77 Article III of the Constitution provides:

63 Decision, p. 14. Sec. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any
person be denied the equal protection of the laws.
64 RECORDS OF THE SENATE, June 6, 1989, pp. 92-93.
xxx
65 RECORDS OF THE SENATE, June 5, 1989, pp. 34.
Sec. 19(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted.
66 Reply to Comment, p. 33. Neither shall death penalty be imposed unless, for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion
67 Ibid. perpetua. (Emphasis supplied.)

68 Id. 78 Reply to Comment, pp.16-18; Memorandum for Petitioner, pp. 62-63.

69 Id. 79 Article 335, Revised Penal Code.

70 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND 80 Article 249, Revised Penal Code.
COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991,
p. 40. 81 Rubi vs. Provincial Board of Mindoro, 39 Phil 660 (1919).

71 Ibid. 82 See Article XIII, Section 1 and 2, Constitution.

72 Id. 83 Id., at Section 6.

73 Id. 84 Id., at Section 3.

74 Id. 85 Id., at Section 5.

75 Id., at 40-41. 86 Id., at Section 7.

87 Id., at Section 14. participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest,
directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any
88 See Article XIV, Constitution.. interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of
which effect, interstate or foreign commerce. A purchase of securities on the open market for purposes
89 Comment, p. 13. of investment, and without the intention of controlling or participating in the control of the issuer, or of
assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held
90 Decision, pp. 14-15. by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or
racketeering activity or the collection of an unlawful debt after such purchase do not amount in the
91 Alpha Investigation and Security Agency, 272 SCRA 653 (1997). aggregate to one percent of the outstanding securities of any one class, an do not confer, either in law or
in fact, the power to elect one or more directors of the issuer.
92 11 Oxford English Dictionary 357 (2d ed 1989).
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of
93 Webster’s Third New International Dictionary, p. 2029 (1976). an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise
which is engaged in, or the activities of which affect, interstate or foreign commerce.
94 H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492 US 229 (1989)
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the
95 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). activities of which affect, interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or
96 Supra. collection of unlawful debt.

97 Id., at 236. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b),
or (c) of this section.
98 Justice Scalia was joined by Chief Justice Rehnquist, Justices O’Connor and Kennedy.
101 Id., at § 1961(5).
99 Atkinson, Jeff. "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," § § 1961-
68: Broadest of the Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW AND 102 See RECORDS JOINT CONFERENCE COMMITTEE MEETING, May 7, 1991, p. 12.
CRIMINOLOGY 1 (1978).
103 Northwestern, supra.
100 18 U.S.C. § 1962 (1970):
104 Id., at 239:
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from
a pattern of racketeering activity or through collection of an unlawful debt in which such person has
RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a
plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or
pose a threat of continued criminal activity. Citing 116 Cong Rec 18940 (1970)
105 Id., at 240.
106 Id.,at 241.
107 Separate Concurring Opinion, pp. 255-256.
108 The issue involved in this case was whether Northwestern Bell Telephone Co., Inc. was liable under
the RICO Law for bribing the members of the Minnesota Public Utilities Commission to approve rates
for the company in excess of a fair and reasonable amount. The U.S. Supreme Court reversed the
District Court of Minnesota and held that (1) to prove a "pattern of racketeering activity" within the
meaning of RICO, it must be shown that the predicate acts of racketeering activity are related and that
they amount to or pose a threat of continued criminal activity; (2) it is not only by proof of multiple
schemes that continuity of criminal activity may be shown; (3) a pattern of racketeering activity may be
shown regardless of whether the racketeering activities are characteristic of "organized crime"; and (4)
remand was necessary because, under the facts alleged, it might be possible to prove that the defendants'
actions satisfied the requirements of relatedness and continuity and they thus constituted a "pattern of
racketeering activity".
109 See United States v. Masters, 924 F.2d 1362 (7th Cir.), cert. denied 11 S. Ct. 2019 (1991); United
States v. Pungitore, 910 F.2d 1084 (3rd Cir. 1990), cert. denied, 11 S.Ct. 2009-11 (1991); United States
v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 111 S. Ct. 130 (1990). All cases cited in Moran,
Christopher, infra.
110 Bauerschmidt, Joseph E., Mother of Mercy – Is this the End of RICO? – Justice Scalia Invites
Constitutional Void-for-Vagueness Challenge to RICO "Pattern", 65 NOTRE DAME LAW REVIEW
1106 (1990).
111 Moran, Christopher. Is the "Darling" in Danger? "Void for Vagueness" – The Constitutionality of
the RICO Pattern Requirement, 36 VILLANOVA LAW REVIEW 1697 (1991) citing:
COLO. REV. STAT. § 18-17-103(3): "Pattern of racketeering activity" means engaging in at least two
acts of racketeering activity which are related to the conduct of the enterprise, if at least one of such acts
occurred in this state after July 1, 1981, and if the last of such acts occurred within ten years (excluding
any period of imprisonment) after a prior act of racketeering activity.
CONN. GEN. STAT. ANN. § 53-394(e) (West 1985): "Pattern of racketeering activity" means engaging
in at least two incidents of racketeering activity that have the same or similar purposes, results,
participants, victims or methods of commission or otherwise are interrelated by distinguishing
characteristics, including a nexus to the same enterprise, and are not isolated incidents, provided at least
one of such incidents occurred after the effective date of this act and that the last of such incidents
occurred within five years after a prior incident of racketeering conduct.
GA. CODE ANN. § 16-14-3(8) (Supp. 1991): "Pattern of racketeering activity" means engaging in at
least two incidents of racketeering activity that have the same or similar intents, results, accomplices,
victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are
not isolated incidents, provided at least one of such incidents occurred after July 1, 1980, and that the
last of such incidents occurred within four years, excluding any periods of imprisonment, after the
commission of a prior incident of racketeering activity.
IDAHO CODE § 18-7803(d) (1987): "Pattern of racketeering activity" means engaging in at least two
(2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims,
or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not
isolated incidents, provided at least one (1) of such incidents occurred after the effective date of this act
and that the last of such incidents occurred within five (5) years after a prior incident of racketeering
conduct.
IND. CODE ANN. § 35-45-6-1 (West 1986): "Pattern of racketeering activity" means engaging in at
least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice,
victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics
[sic] that are not isolated incidents. However, the incidents are a pattern of racketeering activity only if
at least one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents occurred
within five (5) years after a prior incident of racketeering activity.
LA. REV. STAT. ANN. § 15:1352 (C) (West Supp. 1992): "Pattern of drug racketeering activity"
means engaging in at least two incidents of drug racketeering activity that have the same or similar
intents, results, principals, victims, or methods of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated incidents, provided at least one of such occurs after a
prior incident of drug racketeering activity.
MISS. CODE ANN. § 97-43-3(d) (Supp 1989): "Pattern of racketeering activity" means engaging in at
least two (2) incidents of racketeering conduct that have the same or similar intents, results,
accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing
characteristics and are not isolated incidents, provided at least one (1) of such incidents occurred after
the effective date of this chapter and that the last of such incidents occurred within five (5) years after a
prior incident of racketeering conduct.
N.C. GEN. STAT. § 75D-3(b) (1990): "Pattern of racketeering activity means engaging in at least two
incidents of racketeering activity that have the same or similar purposes, results, accomplices, victims or
methods of commission or otherwise are interrelated by distinguishing characteristics and are not
isolated and unrelated incidents, provided at least one of such incidents occurred after October 1, 1986,
and that at least one other of such incidents occurred within a four-year period of time of the other,
excluding any periods of imprisonment, after the commission of a prior incident of racketeering activity.
OR. REV. STAT. § 166.715(4) (1990): "Pattern of racketeering activity" means engaging in at least two
incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or
methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus
to the same enterprise, and are not isolated incidents, provided at least one of such incidents occurred
after November 1, 1981, and that the last of such incidents occurred within five years after a prior
incident of racketeering activity.
TENN. CODE ANN. § 39-12-203(6) (1991): "Pattern of racketeering activity" means engaging in at
least two (2) incidents of racketeering activity that have the same or similar intents, results, accomplices,
victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are
not isolated incidents; provided, that at least one (1) of such incidents occurred after July 1, 1986, and
that the last of such incidents occurred within two (2) years after a prior incident of racketeering
conduct.
WASH. REV. CODE ANN. § 9A.82.010(15) (1988): "Pattern of criminal profiteering activity" means
engaging in at least three acts of criminal profiteering, one of which occurred after July 1, 1985, and the
last of which occurred within five years, excluding any period of imprisonment, after the commission of
the earliest act of criminal profiteering. In order to constitute a pattern, the three acts must have the same
or similar intent, results, accomplices, principals, victims or methods of commission, or be otherwise
interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be
isolated events.
112 Id., citing:
CAL. PENAL CODE § 186.2(b) (West 1988): "Pattern of criminal profiteering activity" means
engaging in at least to incidents of criminal profiteering, as defined by this act, which meet the
following requirements: (1) Have the same or similar purpose, result, principals, victims or methods of
commission, or are otherwise interrelated by distinguishing characteristics[;] (2) Are not isolated
events[; and] (3) Were committed as criminal activity of organized crime.
113 Id., citing:
DEL. CODE ANN. Tit. 11. § 1502(5) (1987): "Pattern of racketeering activity" shall mean 2 or more
incidents of conduct: a. That: 1. Constitute racketeering activity; 2. Are related to the affairs of the
enterprise; 3. Are not so closely related to each other and connected in point of time and place that they
constitute a single event; and b. Where: 1. At least 1 of the incidents of conduct occurred after July 9,
1986; 2. The last incident of conduct occurred within 10 years after a prior occasion of conduct . . .
OHIO REV. CODE ANN. §2923.31(E) (Anderson Supp. 1991): "Pattern of corrupt activity" means two
or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to
the affairs of the same enterprise, are not isolated, and are not so closely related to each other and
connected in time and place that they constitute a single event. At least one of the incidents forming the
pattern shall occur on or after January 1, 1986. Unless any incident was an aggravated murder or
murder, the last incidents forming the pattern shall occur within six years after the commission of any
prior incident forming the pattern, excluding any period of imprisonment served by any person engaging
in the corrupt activity.
OKLA. STAT. ANN. tit. 22, § 1402(5) (West Supp. 1992): Pattern of racketeering activity" means two
or more occasions of conduct: a. that include each of the following: (1) constitute racketeering activity,
(2) are related to the affairs of the enterprise, (3) are not isolated, (4) are not so closely related to each
other and connected in point of time and place that they constitute a single event, and b. where each of
the following is present: (1) at least one of the occasions of conduct occurred after November 1, 1988,
(2) the last of the occasions of conduct occurred within three (3) years, excluding any period of
imprisonment served by the person engaging in the conduct, of a prior occasion of conduct . . .
WIS. STAT. ANN. § 946.82(3) (West Supp. 1991): "Pattern of racketeering activity" means engaging
in at least 3 incidents of racketeering activity that the same or similar intents, results, accomplices,
victims or methods of commission or otherwise are interrelated by distinguishing characteristics,
provided at least one of the incidents occurred after April 27, 1982 and that the last of the incidents
occurred within 7 years after the first incident of racketeering activity. Acts occurring at the same time
and place which may form the basis for crimes punishable under more than one statutory provision may
count for only one incident of racketeering activity.
114 Id., citing:
MINN. STAT. ANN. §609.902(6) (West Supp. 1992): "Pattern of criminal activity" means conduct
consisting constituting three or more criminal acts that: (1) were committed within ten years of the
commencement of the criminal proceedings; (2) are neither isolated incidents, nor so closely related and
connected in point of time or circumstance of commission as to constitute a single criminal offense; and
(3) were either: (i) related to one another through a common scheme or plan or shared criminal purpose
or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the
mental culpability required for the commission of the criminal acts and associated with or in an
enterprise involved in these activities.
N.Y. PENAL LAW §460.10(4) (McKinney 1989): "Pattern of criminal activity" means conduct
engaged in by persons charged in an enterprise corruption count constituting three or more criminal acts
that: (a) were committed within ten years of the commencement of the criminal action; (b) are neither
isolated incidents, nor so closely related and connected in point in time or circumstance of commission
as to constitute a criminal offense or criminal transaction . . . ; and (c) are either: (i) related to one
another through a common scheme or plan or (ii) were committed, solicited, requested, importuned or
intentionally aided by persons acting with the mental culpability required for the commission thereof
and associated with or in the criminal enterprise.
115 Luskin, Robert D. Behold, The Day of Judgment: Is the RICO Pattern Requirement Void for
Vagueness? 64 ST. JOHN’S LAW REVIEW 779 (1990).
116 Memorandum for Petitioner, p. 47; TSN, Oral Arguments, September 18, 2001, see pp. 224-233.
117 Memorandum for Petitioner, p. 47.
118 See Kolender v. Lawson, supra
119 18 U.S.C. § 1961 (5). .
120 See U.S. v. Batchelder, 442 US 114, 60 L Ed 2d 755, 99 S Ct 2198 (1979).
121 Through Justice Brennan.
122 Supra.
123 Decision, pp. 21-22.
124 Today, July 1, 2001 issue.
138 65 Phil. 56 (1937).
125 In People vs. Echegaray (267 SCRA 682) the word "heinous" was traced to the early Spartans’
word "haineus" which means hateful and abominable. In turn, the word came from the Greek prefix 139 Id., at 90.
"haton" indicating acts so hateful or shockingly evil. (at 715)
140 See Explanatory Note, Senate Bill No. 733, Records of the Senate, June 1, 1989, pp. 1-2.
126 WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious
and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity 141 See Papachristou v. Jacksonville, 405 U.S. 156 (1972).
and perversity are repugnant and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society. 142 One of the reliefs sought in the Prayer contained in the Petition (at p. 37) and in Petitioner’s
Memorandum (at p. 84) is for the quashal of the Information in Criminal case No. 26558 for being null
127 Reyes, Luis B. The Revised Penal Code, Book One (13th ed.), p. 56. and void.

128 Petitioner’s Memorandum, p. 81. Double jeopardy attaches only when all of the following circumstances are present: (1) upon a valid
indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered;
129 Dennis v. U.S., 314 U.S. 494 (1951). and (5) when the accused was acquitted or convicted or the case was dismissed or otherwise terminated
without the express consent of the accused (Tecson vs. Sandiganbayan, 318 SCRA 80, 89 [1999]).
130 Scales v. U.S., 203 (1961).

131 Smith v. California, 361 U.S. 147 (1959). The Lawphil Project - Arellano Law Foundation

132 342 U.S. 246 (1952). SEPARATE DISSENTING OPINION

133 Regalado, Florenz, Criminal Law Conspectus (2001 ed.), 161-162. PARDO, J.:

134 Atty. Rene A.V. Saguisag. With due respect, I vote to grant the petition on the second ground raised therein, that is, multiplicity of
offenses charged in the amended information.1 Consequently, the resolution of the Sandiganbayan must
135 Senate Bill No. 733. be set aside, and the case remanded to the Ombudsman for the amendment of the information to charge
only a single offense.
136 Tañada and Macapagal vs. Cuenco, 103 Phil. 1093.
In my view, it is unnecessary to rule on the unconstitutionality of the entire law,2 R. A. No. 7080, as
137 Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996). amended by R. A. No. 7659, although I share the opinion of the dissenting justices in the case of People
v. Echagaray,3 that the heinous crime law is unconstitutional. Hence, the amendments to the plunder
law prescribing the death penalty therefor are unconstitutional. I am of the view that the plunder law
penalizes acts that are mala in se, and consequently, the charges must be the specific acts alleged to be
in violation of the law, committed with malice and criminal intent. At any rate, I venture the view that
Section 4, R. A. No. 7080, must be interpreted as requiring proof beyond reasonable doubt of all the
elements of plunder as prescribed in the law, including the elements of the component crimes,
otherwise, the section will be unconstitutional.
Footnotes
1 Petition, Annex "B", Motion to Quash, Ground II.
2 ‘The Court will not pass upon a constitutional question although properly presented by the record if
the case can be disposed of on some other ground." (Laurel v. Garcia, 187 SCRA 797, 813 [1990],
citing Siler v. Louisville and Nashville R. Co., 312 U.S. 175 [1909]; Railroad Commission v. Pullman
Co., 312 U.S. 496 [1941]; Lalican v. Vergara, 342 Phil. 485, 498 [1997]; Mirasol v. Court of Appeals,
G. R. No. 128448, February 1, 2001.
3 335 Phil. 343 [1997].
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
SANDOVAL–GUTIERREZ, J.:
At times when speaking against popular views can subject a member of this Court to all sorts of unfair
criticism and pressure from the media, the lure not to wield the judicial pen is at its crest. Nevertheless, I
cannot relent to such enticement. Silence under such circumstances may mean not only weakness, but
also insensibility to the legal consequence of a constitutional adjudication bound to affect not only the
litigants, but the citizenry as well. Indeed, the core issue in this case is highly significant, the resolution
of which is inevitably historical. Thus, today, I prefer to take a stand and, therefore, dissent from the
majority opinion.
It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080),1 entitled "An Act Penalizing the
Crime of Plunder," is controversial and far-reaching. Nonetheless, it is my view that it is also vague and
fuzzy, inexact and sweeping. This brings us to the query - may R.A. No. 7080 be enforced as valid and
its shortcomings supplied by judicial interpretation? My answer, to be explained later, is "NO."
As a basic premise, we have to accept that even a person accused of a crime possesses inviolable rights
founded on the Constitution which even the welfare of the society as a whole cannot override. The
rights guaranteed to him by the Constitution are not subject to political bargaining or to the calculus of
social interest. Thus, no matter how socially-relevant the purpose of a law is, it must be nullified if it
tramples upon the basic rights of the accused.
Enshrined in our Constitution is the ultimate guaranty that "no person shall be deprived of life, liberty,
or property without due process of law."2 This provision in the Bill of Rights serves as a protection of
the Filipino people against any form of arbitrariness on the part of the government, whether committed
by the legislature, the executive or the judiciary. Any government act that militates against the ordinary
norms of justice and fair play is considered an infraction of the due process; and this is true whether the
denial involves violation merely of the procedure prescribed by law or affects the very validity of the
law itself.3
The same Due Process Clause protects an accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the crime with which he is charged. The reason
for this was enunciated in In Re Winship:4 "[t]he accused during a criminal prosecution has at stake
interest of immense importance, both because of the possibility that he may lose his liberty (or life)
upon conviction and because of the certainty that he would be stigmatized by the conviction." In view
thereof, any attempt on the part of the legislature to diminish the requirement of proof in criminal cases
should be discouraged.
I

R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly lower the degree
of proof required in the crime of plunder from proof beyond reasonable doubt to mere preponderance of
or substantial evidence, it nevertheless lessened the burden of the prosecution by dispensing with proof
of the essential elements of plunder. Let me quote the offending provision:
SEC. 4. Rule of Evidence. – For purposes of establishing the crime of plunder, it shall not be necessary
to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate, or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt
a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
In every criminal prosecution, the law recognizes certain elements as material or essential. Calling a
particular fact an "essential element" carries certain legal consequences. In this case, the consequence
that matters is that the Sandiganbayan cannot convict the accused unless it unanimously5 finds that the
prosecution has proved beyond reasonable doubt each element of the crime of plunder.
What factual elements must be proved beyond reasonable doubt to constitute the crime of plunder?
Ordinarily, the factual elements that make up a crime are specified in the law that defines it. Under R.A.
No 7080, as amended, the essential elements of the crime of plunder are: a) that the offender is a public
officer; b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of
overt or criminal acts described in Section 1 (d), to wit:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks, or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivision, agencies or instrumentalities or government –owned or controlled
corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly, or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business enterprise
or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular person or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection, or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos
(P50,000,000.00).6
Does the phrase "combination or series of overt or criminal acts described in Section 1 (d)" mean that
the "criminal acts" merely constitute the means to commit plunder? Or does it mean that those "criminal
acts," are essential elements of plunder?
When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the prosecution to prove
each and every criminal act done by the accused, the legislature, in effect, rendered the enumerated
"criminal acts" under Section 1 (d) merely as means and not as essential elements of plunder. This is
constitutionally infirmed and repugnant to the basic idea of justice and fair play.7 As a matter of due
process, the prosecution is required to prove beyond reasonable doubt every fact necessary to constitute
the crime with which the defendant is charged. The State may not specify a lesser burden of proof for an
element of a crime.8 With more reason, it should not be allowed to go around the principle by
characterizing an essential element of plunder merely as a "means" of committing the crime. For the
result is the reduction of the burden of the prosecution to prove the guilt of the accused beyond
reasonable doubt.

Let me elucidate on the vices that come with Section 4.
First, treating the specific "criminal acts" merely as means to commit the greater crime of plunder, in
effect, allows the imposition of the death penalty even if the Justices of the Sandiganbayan did not
"unanimously" find that the accused are guilty beyond reasonable doubt of those "criminal acts." The
three Justices need only agree that the accused committed at least two of the criminal acts, even if not
proved by evidence beyond reasonable doubt. They do not have to agree unanimously on which two.
Let us consider the present case against former President Joseph Ejercito Estrada. The accusatory
portion of the information in Criminal Case No. 26558 charges Mr. Estrada and others of willfully,
unlawfully and criminally amassing, accumulating and acquiring ill-gotten wealth in the aggregate
amount of P4,097,804,173.17 more or less, through a combination and series of overt and criminal acts
described as follows:
"a) by receiving, collecting, directly or indirectly, on many instances, so called "jueteng money" from
gambling operators in connivance with co-accused Jose "Jinggoy" Estrada, Yolanda Ricaforte and
Edward Serapio, as witnessed by Gov. Luis Chavit Singson, among other witnesses, in the aggregate
amount of FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), more or less, in
consideration of their protection from arrest or interference by law enforcers in their illegal "jueteng"
activities; and
b) by misappropriating, converting and misusing his gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the
One Hundred Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused Charlie "Atong" Ang, Alma
Alfaro, Eleuterio Tan a.k.a Eleuterio Ramos Tan or Mr. Uy., and Jane Doe a.k.a Delia Rajas as
witnesses by Gov. Luis "Chavit" Singson, among other witnesses; and
c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the
Social Security System (SSS) to purchase and buy a combined total of P681,733,000. shares of stock of
Belle Corporation in the aggregate value of One Billion Eight Hundred Forty Seven Pesos and Fifty
Centavos (P1,847,578,057.50), for the purpose of collecting for his personal gain and benefit, as in fact
he did collect and receive the sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (P189,700,000.00), as commission from said stock purchase; and
d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) comprising his unexplained wealth,
acquired, accumulated and amassed by him under his account name "Jose Velarde" with Equitable PCI
Bank."
Since it is not necessary to prove each criminal act, the inevitable conclusion is that Mr. Estrada may be
convicted of the crime of plunder without the Justices of the Sandiganbayan "unanimously" deciding
which two of the four criminal acts have actually been committed. In short, all that R.A. No. 7080
requires is that each Justice must be convinced of the existence of a "combination or series." As to
which criminal acts constitute a combination or series, the Justices need not be in full agreement.
Surely, this would cover-up a wide disagreement among them about just what the accused actually did
or did not do. Stated differently, even if the Justices are not unified in their determination on what
criminal acts were actually committed by the accused, which need not be proved under the law, still,
they could convict him of plunder.
Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of the grand
scheme or conspiracy to amass ill-gotten wealth, it is imperative to focus upon the individual "criminal
acts" in order to assure the guilt of the accused of plunder.
Second, R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct crimes which by
themselves are currently punishable under separate statutes or provisions of law. The six (6) separate
crimes become mere "means or similar schemes" to commit the single offense of plunder. It bears
emphasis that each of the separate offenses is a crime mala in se. The commission of any offense mala
in se is inherently accompanied by a guilty mind or a criminal intent.9 Unfortunately, R.A. No. 7080
converted the six mala in se offenses into one crime which is mala prohibita wherein the intent becomes
insignificant. Upon the commission of the proscribed act, without proof of intent, the law is considered
violated.10 Consequently, even acts recklessly committed (i.e. without intent) can be punished by death.

Third, Section 4 mandates that it shall not be necessary for the prosecution to prove each and every
criminal act done by the accused x x x it being sufficient to prove beyond reasonable doubt a pattern of
overt or criminal acts. By its own terminology, Section 4 requires that the "pattern" be proved by
evidence beyond reasonable doubt. Initially, we must disassociate the specific "criminal acts" from the
"pattern of criminal acts." These two phrases do not refer to one and the same thing. Pattern, as defined
in the dictionary, means an established mode of behavior.11 In the crime of plunder, the existence of a
"pattern" can only be inferred from the specific "criminal acts" done by the accused. Several queries
may be raised to determine the existence of a "pattern." Are these criminal acts related or tied to one
another? Is the subsequent criminal act a mere continuation of the prior criminal act? Do these criminal
acts complement one another as to bring about a single result? Inevitably, one must focus first on each
criminal act to ascertain the relationship or connection it bears with the other criminal acts, and from
there determine whether a certain "pattern" exists. But how could "pattern" be proved beyond
reasonable doubt when in the first place the specific "criminal acts" from which such pattern may be
inferred are not even required to be proved?
And fourth, plunder is a very serious offense. What is at stake under the law is not only the liberty of the
accused but his life and property as well. Thus, it will be extremely unjust to lessen the prosecution’s
burden of proof to such a degree not commensurate to what the accused stands to suffer. If a person will
lose his life, justice requires that every fact on which his guilt may be inferred must be proved beyond
reasonable doubt.
Providing a rule of evidence which does not require proof beyond reasonable doubt to establish every
fact necessary to constitute the crime is a clear infringement of due process. While the principles of the
law of evidence are the same whether applied on civil or criminal trials, they are more strictly observed
in criminal cases.12 Thus, while the legislature of a state has the power to prescribe new or alter existing
rules of evidence, or to prescribe methods of proof, the same must not violate constitutional
requirements or deprive any person of his constitutional rights.13 Unfortunately, under R.A. No. 7080,
the State did not only specify a lesser burden of proof to sustain an element of the crime; it even
dispensed with proof by not considering the specific "criminal acts" as essential elements. That it was
the clear intention of the legislature is evident from the Senate deliberation, thus:
"Senator Guingona. Since it is a series or a scheme,what amount of evidence will, therefore, be
required? Must there be a pattern of the criminal acts? Must there be a series of briberies, for example?
Or, can there be only one?
Senator Tanada. Under Section 4 of the bill, Mr. President, it is provided that:
"For purposes of establishing the OFFENSE, of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate,
or acquire ill-gotten wealth… But, there must be enough evidence "sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts of the overall unlawful scheme or conspiracy."
So, that is the quantum of evidence that would be required under this proposal measure.
Senator Guingona. That is sufficient to establish the prima facie case.14
xxxxxx
Senator Romulo. That, perhaps, is a good provision of the bill. But, may I ask, Mr. President, what is in
this bill that would insure that there would be a speedier process by which this crime of plunder would
readily and immediately processed and convicted or acquitted than is now existing in present laws?
Senator Tanada. Yes, x x x.
Now, on the second point, Mr. President, I believe that what could make faster and speedier
prosecutions of these grafters would be a change that will be authorized in this bill, at least, in the filing
of information against the perpetrators. Under the existing criminal procedure, as I said earlier, there can
only be one offense charged per information. So, if there is going to be a series of overt or criminal acts
committed by the grafter, then that would necessitate the filing of so many informations against him.
Now, if this bill becomes a law, then that means that there can be only one information filed against the
alleged grafter. And the evidence that will be required to convict him would not be evidence for each
and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to
commit this crime of plunder.15
xxxxxx
Senator Guingona. May I just be clarified Mr. President. In this Section 4, a pattern of the criminal acts
is all that is required. Would this pattern of criminal acts be also sufficient to establish a prima facie
case?
Senator Tanada. Mr. President, under Section 4, it would not only be sufficient to establish a prima facie
case. It would be sufficient to establish guilt as long as the evidence, necessary to establish guilt beyond
reasonable doubt is presented."16
In dispensing with proof of each criminal act, the clear objective of Congress is to render it less difficult
for the prosecution to prove the crime of plunder. While this presupposes a noble intention, I do not
think there is a sufficient justification. I, too, have the strong desire to eliminate the sickness of
corruption pervading in the Philippine government, but more than anything else, I believe there are
certain principles which must be maintained if we want to preserve fairness in our criminal justice
system. If the prosecution is not mandated to prove the specific "criminal acts," then how can it
establish the existence of the requisite "combination or series" by proof beyond reasonable doubt?
II
Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term "pattern." As stated
by Mr. Justice Kapunan, in his Dissent, the concept of "pattern of overt or criminal acts" embodied in
the law was derived by Congress from the RICO (Racketeer Influenced and Corrupt Organizations)
statute.17 I am, therefore, constrained to refer to US law and jurisprudence. "Pattern" as defined in the
RICO statute means "as requiring at least two acts of racketeering activity….the last of which occurred
within ten years….after the commission of the prior act of racketeering activity.18
Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not specify a) the
number of criminal acts necessary before there could be a "pattern," as well as b) the period within
which the succeeding criminal acts should be committed. These failures render the law void for its
vagueness and broadness.
Indeed, Congress left much to be desired. I am at a quandary on how many delictual acts are necessary
to give rise to a "pattern of overt or criminal acts" in the crime of plunder. If there is no numerical
standard, then, how should the existence of "pattern" be ascertained? Should it be by proximity of time
or of relationship? May an act committed two decades after the prior criminal act be linked with the
latter for the purpose of establishing a pattern?
It must be remembered that plunder, being a continuous offense, the "pattern of overt or criminal acts"
can extend indefinitely, i.e., as long as the succeeding criminal acts may be linked to the initial criminal
act. This will expose the person concerned to criminal prosecution ad infinitum. Surely, it will
undermine the purpose of the statute of limitations, i.e., to discourage prosecution based on facts
obscured by the passage of time, and to encourage law enforcement officials to investigate suspected
criminal activity promptly.19 All these undesirable consequences arise from the fact that the plunder
law fails to provide a period within which the next criminal act must be committed for the purpose of
establishing a pattern. I believe R.A. No. 7080 should have provided a cut-off period after which a
succeeding act may no longer be attached to the prior act for the purpose of establishing a pattern. In
reiteration, the RICO law defines "pattern" as requiring at least two acts of racketeering activity… the
last of which occurred within ten years… after the commission of the prior act of racketeering activity.
Such limitation prevents a subsequent racketeering activity, separated by more than a decade from the
prior act of racketeering, from being appended to the latter for the purpose of coming up with a pattern.
We do not have the same safeguard under our law.
Significantly, in Sedima, S.P.R.L v. Imrex Co.,20 the United States Supreme Court expressed dismay
that Congress has failed to properly define the term "pattern" at all but has simply required that a
"pattern" includes at least two acts of racketeering activity. The Court concluded that "pattern" involves
something more than two acts, and after examining RICO’s legislative history, settled on "continuity
plus relationship" as the additional requirement.
Years later, in H.C. Inc. v. The Northwestern Bell Tel.,21 the U.S. Supreme Court conceded that "the
continuity plus relationship" means different things to different circuits. Nevertheless, it held firm to the
Sedima requirement that "in order to establish a pattern, the government has to show "that the
racketeering predicates are related, and that they amount to or pose a threat of continued criminal
activity." Justice Scalia, in a concurring opinion in which three other justices joined, derided the
"relationship" requirement as not "much more helpful [to the lower courts] than telling them to look for
a "pattern" - - which is what the statute already says." As for the continuity requirement, Justice Scalia
said: "Today’s opinion has added nothing to improve our prior guidance, which has created a
kaleidoscope of circuit positions, except to clarify that RICO may in addition be violated when there is a
'threat of continuity'. It seems to me this increases rather than removes the vagueness. There is no reason
to believe that the Court of Appeals will be any more unified in the future, than they have in the past,
regarding the content of this law."
Aware of the ambiguities present in the RICO law the drafters of the New York "Organized Crime
Control Act" (a progeny of RICO) now more specifically define "pattern of criminal activity" as
conduct engaged in by persons charged in an enterprise corruption count constituting three or more
criminal acts that (a) were committed within ten years from the commencement of the criminal action;
(b) are neither isolated incidents, nor so closely related and connected in point of time or circumstance
of commission as to constitute a criminal offense or criminal transaction, as those terms are defined in
section 40.10 of the criminal procedure law; and (c) are either: (i) related to one another through a
common scheme or plan or (ii) were committed, solicited, requested, importuned or intentionally aided
by persons acting with the mental culpability required for the commission thereof and associated with or
in the criminal enterprise.22
If the term "pattern" as defined in the RICO law is continuously subjected to constitutional attacks
because of its alleged vagueness, how much more the term "pattern" in R.A. No. 7080 which does not
carry with it any limiting definition and can only be read in context. Indeed, there is no doubt that the
invalidity of the law based on vagueness is not merely debatable - it is manifest. Thus, this Court should
declare R.A. No. 7080 unconstitutional.
III
Lastly, the terms "combination" and "series" are likewise vague. Hence, on the basis of the law, a
conviction of an accused cannot be sustained. A statute that does not provide adequate standards for
adjudication, by which guilt or innocence may be determined, should be struck down.23 Crimes must be
defined in a statute with appropriate certainty and definiteness.24 The standards of certainty in a statute
prescribing punishment for offenses are higher than in those depending primarily on civil sanctions for
their enforcement.25 A penal statute should therefore be clear and unambiguous.26 It should explicitly
establish the elements of the crime which it creates27 and provide some reasonably ascertainable
standards of guilt.28 It should not admit of such a double meaning that a citizen may act on one
conception of its requirements and the courts on another.29
I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary meaning of the terms
‘combination’ and ‘series’ as well as recourse to the deliberations of the lawmakers only serve to prove
that R.A. No. 7080 failed to satisfy the requirement of the Constitution on clarity and definiteness." The
deliberations of our law-makers, as quoted verbatim in Justice Kapunan's Dissent, indeed, failed to shed
light on what constitute "combination" and "series."30
I believe this is fatal.
The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." As
can be gleaned from the Record of the Senate, the determining factor of R.A. 7080 is the plurality of the
overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if
the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of
plunder if there is only a single criminal act.31
Considering that without plurality of overt or criminal acts, there can be no crime of plunder, due
process of law demands that the terms "combination" and "series" be defined with exactitude in the law
itself. Equating these terms with mere "plurality" or "two or more," is inaccurate and speculative. For
one, a "series" is a group of usually three or more things or events standing or succeeding in order and
having like relationship to each other.32 The Special Prosecution Division Panel defines it as "at least
three of the acts enumerated under Section 1(d) thereof."33 But it can very well be interpreted as only
one act repeated at least three times. And the Office of the Solicitor General, invoking the deliberations
of the House of Representatives, contends differently. It defines the term series as a "repetition" or
pertaining to "two or more."34 The disparity in the Prosecution and OSG’s positions clearly shows how
imprecise the term "series" is.
This should not be countenanced. Crimes are not to be created by inference.35 No one may be required,
at the peril of life, liberty or property to guess at, or speculate as to, the meaning of a penal statute.36 An
accused, regardless of who he is, is entitled to be tried only under a clear and valid law.
Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when the Information
clearly specified the acts constituting the crime of plunder. I do not agree. It is the statute and not the
accusation under it that prescribes the rule to govern conduct and warns against aggression.37 If on its
face, a statute is repugnant to the due process clause on account of vagueness, specification in the
Information of the details of the offense intended to be charged will not serve to validate it.38
On the argument that this Court may clarify the vague terms or explain the limits of the overbroad
provisions of R.A. No. 7080, I should emphasize that this Court has no power to legislate.
Precision must be the characteristic of penal legislation. For the Court to define what is a crime is to go
beyond the so-called positive role in the protection of civil liberties or promotion of public interests. As
stated by Justice Frankfurter, the Court should be wary of judicial attempts to impose justice on the
community; to deprive it of the wisdom that comes from self-inflicted wounds and the strengths that
grow with the burden of responsibility.39
A statute which is so vague as to permit the infliction of capital punishment on acts already punished
with lesser penalties by clearly formulated law is unconstitutional. The vagueness cannot be cured by
judicial construction.
Also, not to be glossed over is the fact that R.A. 7080, as amended, is a novel law. Hence, there is
greater need for precision of terms. The requirement that law creating a crime must be sufficiently
explicit to inform those subject to it, what conduct on their part will render them liable to its penalties,
has particular force when applied to statutes creating new offenses. For that reason, those statutes may
not be generally understood, or may be subject of generally accepted construction.40
Today, I recall what James Madison remarked in presenting the Bill of Rights to the United States
Congress in 1789: "if they (Bill of Rights) are incorporated into the Constitution, independent tribunals
of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the legislative or executive; and they will
be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by
the declaration of rights."41 Time did not render his foreboding stale. Indeed, in every constitutional
democracy, the judiciary has become the vanguard of these rights. Now, it behooves this Court to strike
an unconstitutional law. The result, I concede, may not be politically desirable and acceptable,
nevertheless, I am fully convinced that it is constitutionally correct.
To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE PROCESS CLAUSE of
the Constitution. The vagueness of its terms and its incorporation of a rule of evidence that reduces the
burden of the prosecution in proving the crime of plunder tramples upon the basic constitutional rights
of the accused.
In fine, I can only stress that the one on trial here is not Mr. Estrada, but R.A. No. 7080. The issue
before this Court is not the guilt or innocence of the accused, but the constitutionality of the law. I vote
to grant the petition, not because I favor Mr. Estrada, but because I look beyond today and I see that this
law can pose a serious threat to the life, liberty and property of anyone who may come under its
unconstitutional provisions. As a member of this Court, my duty is to see to it that the law conforms to
the Constitution and no other. I simply cannot, in good conscience, fortify a law that is patently
unconstitutional.
WHEREFORE, I vote to grant the petition.
Footnotes
1 As amended by Republic Act No. 7659 - "An Act to Impose the Death Penalty on Certain Heinous
Crimes, Amending for that Purpose the Revised Penal Code, other Special Penal Laws and for other
Purpose (1993).
2 Section 1, Article III of the 1987 Constitution.
3 Cruz, Constitutional Law, 1995 Ed. p. 95.

4 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2nd 368.
5 Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan
"The unanimous vote of three Justices in a division shall be necessary for the rendition of a judgment or
order. In the event that three Justices do not reach a unanimous vote, the Presiding Justice shall
designate by raffle two justices from among the other members of the Sandiganbayan to sit temporarily
with them forming a special division of five Justices, and the vote of a majority of such special division
shall be necessary for the rendition of a judgment or order.
6 Section 2 of R.A. No. 7080.
7 It is an elementary principle of criminal jurisprudence, a principle firmly embedded in the organic law
of every free state and vindicated by statutory guarantee as well as by innumerable judicial decisions,
that every criminal, however hideous his alleged crime, or however, debauched and fiendish his
character, may require that the elements of that crime shall be clearly and indisputably defined by law,
and that his commission of and relationship to the alleged offense shall be established by legal evidence
delivered in his presence. (Rice, The Law of Evidence on Evidence, Vol. 3, p. 421.
8 29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25 L Ed 2d 368; State v. Krantz, 498 US
938, 112 L Ed 2d 306.
9 In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the crime must be the product of a free,
intelligent, and intentional act.
10 U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).
11 Webster, Third New International Dictionary, Unabridged, 1993, p. 1657.
12 Harris and Wilshere’s Criminal Law, Seventeenth Division, 1943, pp.513-514.
13 Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29 Am Jur 6.
14 Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314.
15 Records of the Senate, Vol. IV, No. 140, p. 1316.
16 Records of the Senate, June 16, 1989, Vol. IV, No. 141, p. 1403.
17 See Records Joint Conference Committee Meeting, May 7, 1991, p. 12. Representative Pablo Garcia,
Chairman of the House of Representatives Committee on Justice, observed that R.A. No. 7080 was
patterned after the RICO law.
18 Rotella v. Wood, United States Supreme Court, February 23, 2000.
19 Toussie vs. United States, 397 U.S. 112, 115 (1970).
20 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
21 492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).
22 The People of the State of New York v. Capaldo et al., 151 Misc. 2d 114 (1991).
23 21 Am Jur §349, p.399.
24 22 C.J.S. §24 (2) p. 62; Pierce v. United States 314 US 306; 86 L. Ed 226.
"The constitutional vice in a vague or indefinite statute is the injustice to accused in placing him on trial
for an offense as to the nature of which he is given no fair notice. (American Communications
Associations C.I.O. v. Douds, N.Y. 70 S. Ct. 674, 339 U.S. 382, 94 L. Ed 1391) In determining whether
a statute meets the requirement of certainty, the test is whether the language conveys sufficiently
definite warning as to the proscribe conduct when measured by a common understanding and practices.
Penal statutes affecting public officers and employees and public funds or property will be held invalid
where the prohibited conduct is not sufficiently defined. (Jordan v. De George III341 U.S. 223, 95 L.
Ed. 886; Winters v. People of State of New York. 333 U.S. 507; 92 L. Ed 840) The requirement of
statutory specificity has the dual purpose of giving adequate notice of acts which are forbidden and of
informing accused of the nature of offense charged so that he may defend himself. (Amsel v. Brooks,
106 A. 2d 152, 141 Conn. 288; 67 S. Ct. 125, 348 U.S. 880, 91 L. Ed. 693)".
25 "Winters v. People of State of Newyork 333 US 507; 92 L. Ed. 840 -- "A penal statute must set up
ascertainable standards so that men of common intelligence are not required to guess at its meaning,
either as to persons within the scope of the act or as to the apllicable test to ascertain guilt."
26 Sullivan v. United States 332 U.S. 689; 92 L. Ed. 297.
27 United States v. Dettra Flag co. D.C. Pa., 86 F. Supp. 84.
28 Winters v. People of State of New York, supra.
29 State v. Tsutomu Ikeda, 143 P. 2d 880, followed in State v. Waller 143 P. 2d 884.
30 "Senator Gonzales. To commit the offense of plunder, as defined in this Act and while constituting a
single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion,
malversation, of public funds, swindling, falsification of public documents, coercion, theft, fraud and
illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this
provision, by itself, will be vague. I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of accusation of an accused.
Because, what is meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a
series? During the period of amendments, can we establish a minimum of overt acts like, for example,
robbery in band? The law defines what is robbery in band by the number of participants therein. In this
particular case, probably, we can statutorily provide for the definition of "series" so that two, for
example, would that already be a series? Or, three, what would be the basis for such a determination?"
(Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310).
31 "Senator Paterno. Mr. President, not too clear yet on the reason for trying to define a crime of
plunder. Could I get some further clarification?
Senator Tanada. Yes, Mr. President.
Because of our experience in the former regime, we feel that there is a need for Congress to pass the
legislation which would cover a crime of this magnitude. While it is true, we already have the Anti-
Graft Law. But that does not directly deal with plunder. That covers only the corrupt practices of public
officials as well as their spouses and relatives within the civil degree, and the Anti-Graft law as
presently worded would not adequately or sufficiently address the problems that we experienced during
the past regime.
Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of the bill?
Senator Tanada. Yes.
Senator Paterno. I envision that this bill or this kind of plunder would cover a discovered
interconnection of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when,
after the different acts are looked at, a scheme of conspiracy can be detected, such scheme or conspiracy
consummated by the different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such
that the scheme or conspiracy becomes a sin, as a large scheme to defraud the public or rob the public
treasury. It is parang robo and banda. It is considered as that. And, the bill seeks to define or says that
P100 million is that level at which ay talagang sobra na dapat nang parusahan ng husto. Would it be a
correct interpretation or assessment of the intent of the bill?
Senator Tanada. Yes, Mr. President. The fact that under existing law, there can be only one offense
charged in the information, that makes it very cumbersome and difficult to go after these grafters if we
would not come out with this bill. That is what is happening now; because of that rule that there can be
only one offense charged per information, then we are having difficulty in charging all the public
officials who would seem to have committed these corrupt practices. With this bill, we could come out
with just one information, and that would cover all the series of criminal acts that may have been
committed by him.

xxxxxx
Senator Romulo. To follow up the interpolations of Senator Paterno and Maceda, this crime of plunder
as envisioned here contemplates of a series or a scheme as responded by the distinguished Sponsor.
Senator Tanada. That is correct, Mr. President. (Record of Senate, June 5, 1989, Vol. IV, No. 140, p.
1315)
xxxxxx
Senator Romulo. Mr. President, I was going to suggest prior to Senator Maceda that on line 24:
"SHALL THROUGH ONE overt or criminal act OR…." I was just thinking of one which is really not a
"series.",
The President. If there is only one, then he has to be prosecuted under the particular crime. But when we
say "acts of plunder" there should be, at least, two or more. (Record of the Senate, June 6, 1989, Vol.
IV, No. 141, p. 1399).
32 Tarsia v. Nick’s Laundry & Linen Supply Co., 399 P. 2d 28, 29, 239 Or. 562; Words and Phrases,
38A p. 441.
For purposes of Rule permitting government to charge several defendants under one indictment if they
have participated in same "series" of acts or transactions, a "series" is something more than mere
"similar" acts.
33 Opposition to the Motion to Quash of Accused Joseph Estrada dated June 21, 2001, p. 9.
34 Comment to the Amended Petition dated July 16, 2001, p. 14.
35 United States v. Laub, 385 US 475, 17 L Ed 2d 526, 87 S Ct 574.
36 State v. Nelson, 95 N.W. 2d 678.
37 22 C.J.S. §24 (2); People v. Bevilacqua, 170 N.Y. S. 2d 423; Lanzetta v. State of New Jersey, 306
U.S. 451, 59 S Ct 618, 83 L. Ed. 888; United States v. DeCadena, D.C. 105 F. Supp. 202.
38 21 Am Jur §17 p. 129.
39 Tresolini and Shapiro, American Constitutional Law, 3rd Edition, p. 23.
40 State v. Evans, 245 P. 2d 788, 73 Idaho 50.
41 Abraham, Perry, Freedom and the Court, 1998, p. 25.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
YNARES-SANTIAGO, J.:
It is an ancient maxim in law that in times of frenzy and excitement, when the desire to do justice is
tarnished by anger and vengeance, there is always the danger that vital protections accorded an accused
may be taken away.
The Plunder Law and its amendment were enacted to meet a national problem demanding especially
immediate and effective attention. By its very nature, the law deserved or required legislative drafting of
the highest order of clarity and precision.
Substantive due process dictates that there should be no arbitrariness, unreasonableness or ambiguity in
any law which deprives a person of his life or liberty. The trial and other procedures leading to
conviction may be fair and proper. But if the law itself is not reasonable legislation, due process is
violated. Thus, an accused may not be sentenced to suffer the lethal injection or life imprisonment for an
offense understood only after judicial construction takes over where Congress left off, and interpretation
supplies its meaning.
The Constitution guarantees both substantive and procedural due process1 as well as the right of the
accused to be informed of the nature and cause of the accusation against him.2 Substantive due process
requires that a criminal statute should not be vague and uncertain.3 More explicitly –
That the terms of a penal statute. . . must be sufficiently explicit to inform those who are subject to it
what conduct on their part will render them liable to penalties, is a well–recognized requirement,
consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential of due
process.4
The doctrine of constitutional uncertainty is also based on the right of the accused to be informed of the
nature and cause of the accusation.5 Fundamental fairness dictates that a person cannot be sent to jail for
a crime that he cannot with reasonable certainty know he was committing.6 Statutes defining crimes run
afoul of the due process clause if they fail to give adequate guidance to those who would be law-
abiding, to advise defendants of the nature of the offense with which they are charged or to guide courts
trying those who are accused.7 In short, laws which create crime ought to be so explicit that all men
subject to their penalties may know what acts it is their duty to avoid.8
A reading of the Plunder Law immediately shows that it is phrased in a manner not susceptible to ready
or clear understanding. In the desire to cover under one single offense of plunder every conceivable
criminal activity committed by a high government official in the course of his duties, Congress has
come out with a law unduly vague, uncertain and broad.
The doctrines of overbreadth and void-for-vagueness in Constitutional Law were developed in the
context of freedom of speech and of the press. However, they apply equally, if not more so, to capital
offenses. In the present case, what the law seeks to protect or regulate involves the deprivation of life
itself and not merely the regulation of expression.
In its early formulation, the overbreadth doctrine states that a governmental purpose to control or
prevent activities constitutionally subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.9
A statute, especially one involving criminal prosecution, must be definite to be valid. A statute is vague
or overbroad, in violation of the due process clause, where its language does not convey sufficiently
definite warning to the average person as to the prohibited conduct. A statute is unconstitutionally vague
if people of common intelligence must necessarily guess at its meaning.10
It is not only prosecutors and judges who are concerned. The need for definiteness applies with greater
force to the accused and those in positions where opportunities for them to commit the proscribed
offense are present. They must understand exactly what prohibited activity will be punished by capital
punishment. Sadly, even the record of deliberations in Congress cited in the motion to quash shows that
even the members of the Senate who are illustrious lawyers found the Plunder Law vague.
Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the acquisition of at least P50,000,000.00 of
ill-gotten wealth is punished by reclusion perpetua to death, if committed as follows:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business enterprise
or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.11
The crimes of malversation of public funds and bribery, which appear to be included among the modes
of committing plunder, have acquired well-defined meanings under our present penal statutes. The
accused immediately knows how to defend and justify his actions. The prosecution understands the
quantum and nature of the evidence he has to produce in court. The Judge can apply the law with
straight and positive judgment because there is no vagueness about it.
The Sandiganbayan, however, has ruled that the Plunder Law does not make any reference to any
specific provision of laws other than R.A. 7080, as amended. It is an entirely new offense where
malversation or bribery become "generic terms" according to the court. And since "generic" refers to an
entire group or class of related matters, the discretion given to the prosecutor and the judge figuratively
runs riot.
Under the same paragraph of the Plunder Law, malversation is lumped with "misuse of public funds."
Misuse can be as innocuous as error or it can be as severe as corruption or embezzlement. The terms
"abuse," "distortion," "misapplication," "mismanagement," "poor stewardship," "malpractice,"
"debasement," or "breach of trust," all conceivably fall under the generic term "misuse." Exactly when
does an administrative offense of misuse become the capital crime of plunder? What degree of misuse is
contemplated under the law?
A penal law violates due process where inherently vague statutory language permits selective law
enforcement.12 Under the Plunder Law, a crusading public officer who steps on too many important
toes in the course of his campaign could be prosecuted for a capital offense, while for exactly the same
acts, an official who tries to please everybody can be charged whether administratively or for a much
lighter offense.
For instance, direct bribery under Article 210 of the Revised Penal Code is punished with prision mayor
in its medium or minimum periods, prision correccional in its medium period, or prision mayor in its
minimum period, depending on the manner of commission.13 Indirect bribery under Article 211 is
punished with prision correccional in its medium and maximum periods.14 Under the Plunder Law, the
penalty is reclusion perpetua to death. The void-for-vagueness infirmity becomes all the more apparent
if the proscribed activity is "misuse of public funds." The prosecutor is given broad powers of selective
law enforcement. For "misuse," exactly the same acts could be punished with death under the Plunder
Law, or mere dismissal with prejudice to future government employment under the Civil Service Law.
The provision in the Plunder Law on "implementation of decrees and orders intended to benefit
particular persons or special interests" also calls for more specific elucidation. If the only person
benefited is himself, does that fall under "particular person?" Decrees and orders issued by a top
government official may be intended to benefit certain segments of society such as farmers,
manufacturers, residents of a geographical area and the like. If in the process a close relative acquires
P50,000,000.00 because of development in that sector solely because of the decree and without lifting a
finger, is that plunder? The vagueness can be better appreciated by referring to petitioner’s arguments
that the element of mens rea in mala in se crimes has been abolished and the offenses have been
converted to mala prohibita. If the guilty intent is eliminated, even innocent acts can be plunder. The
law was not drafted for petitioner alone. It applies to all public officers.
As petitioner has stated, what Congress did in enacting the Plunder Law was to take out the provisions
of the Revised Penal Code on malversation, estafa, bribery, and other crimes committed by public
officers, mix these with special laws on graft and corruption and together with a couple of non-criminal
acts, combine them into a special law and call it "plunder."
Early in the history of this Court, it ruled that in acts mala in se, the criminal intent governs. But in those
acts mala prohibita, the only inquiry is: has the law been violated?15 Acts constituting malversation,
estafa, and bribery are mala in se. The courts must inquire into the criminal intent, the evil nature or
wrongful disposition behind the criminal acts. In mala prohibita crimes, there is a violation of a
prohibitory law and the inquiry is, therefore, has the law been violated?
In the crime of plunder, it is enough that the acts defining malversation or bribery are described. The
court then proceeds to determine whether the acts fall under the prohibitory terms of the law. Criminal
intent no longer has to be proved. The criminal intent to commit the crime is not required to be proved.
The desire to benefit particular persons does not have to spring from criminal intent under the special
law creating the crime of plunder. In malversation or bribery under the Revised Penal Code, the criminal
intent is an important element of the criminal acts. Under the Plunder Law, it is enough that the acts are
committed.
Thus, even if the accused can prove lack of criminal intent with respect to crimes mala in se, this will
not exonerate him under the crime mala prohibita. This violates substantive due process and the
standards of fair play because mens rea is a constitutional guarantee under the due process clause.
Indeed, as stated by the U.S. Supreme Court in Morisette v. U.S.:16
The Government asks us by a feat of construction radically to change the weights and balances in the
scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is
to ease the prosecution’s party to conviction, to strip the defendant of such benefit as he derived at
common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries.
Such a manifest impairment of the immunities of the individual should not be extended to common law
crimes on judicial initiative. (Emphasis ours)
By grafting several felonies, some mala in se and some mala prohibita, to constitute the crime of
plunder and by doing away with the standard of proof beyond reasonable doubt for the component
elements, the State would practically be given the judicial imprimatur to impose the extreme penalty of
death on the basis of proof only of the overall pattern of overt or criminal acts showing unlawful scheme
or conspiracy. This attempt of Congress to tip the scales of criminal justice in favor of the state by doing
away with the element of mens rea and to pave the way for the accused to be convicted by depriving
him of the defense of criminal intent as to mala in se components of plunder will be anathema to
substantive due process which insures "respect for those personal immunities which are so rooted in the
traditions and conscience of our people as to be ranked as fundamental."17
Equally disagreeable is the provision of the Plunder Law which does away with the requirement that
each and every component of the criminal act of plunder be proved and instead limits itself to proving
only a pattern of overt acts indicative of the unlawful scheme or conspiracy.18 In effect, the law seeks to
penalize the accused only on the basis of a proven scheme or conspiracy, and does away with the rights
of the accused insofar as the component crimes are concerned. In other words, R.A. No. 7080
circumvents the obligation of the prosecution to prove beyond reasonable doubt every fact necessary to
constitute the crime of plunder, because the law requires merely proof of a pattern of overt acts showing
an unlawful scheme or conspiracy. What aggravates matters on this point is that under controlling case
law, conspiracy to defraud is not punishable under the Revised Penal Code.19 Cutting corners on the
burden of proof is unconstitutional because the standard of reasonable doubt is part of the due process
safeguard accorded an accused. The due process clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.20
Under R.A. 7659, plunder is a heinous crime punishable by death. It is described as grievous, odious
and hateful because of its inherent or magnified wickedness, viciousness, atrocity, and perversity. There
can be no quarrel with the legislative objective of reducing the upsurge of such crimes which affect
sustainable economic development and undermine the people’s faith in Government and the latter’s
ability to maintain peace and order. Nevertheless, due process commands that even though the
governmental purpose is legitimate and substantial, that purpose cannot be pursued by means so vague
and broad that they infringe on life or stifle liberty when the end can be more narrowly achieved through
existing penal statutes.
Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or impairment of
life or liberty is critical.21
The problem of vagueness is reduced or eliminated if the different schemes mentioned in the law as
used in the acquisition of ill-gotten wealth are prosecuted under existing penal law. The offenses are by
their nature distinct and separate from each other and have acquired established meanings.
Thus, the acts of misappropriation or malversation may be prosecuted as separate offenses. So may the
receipt of commissions, gifts, or kickbacks by higher officials in connection with government contracts.
The four other methods or schemes mentioned in the law may be the objects of separate penal statutes.
When the law creates a new crime of plunder through a combination or series of overt or criminal acts,
the courts have to supply missing elements if conviction is to be achieved.
Bribery is punished as plunder under the law only when there is a combination or series of criminal acts.
But when do certain acts constitute a combination or series? Does the Plunder law provide that two or
three acts of one crime of bribery constitute a combination or series which qualify bribery into plunder?
Or does bribery have to be conjoined with the separate offense of malversation to become a
combination? Or with malversation and fraudulent conveyance or disposition of public assets or one of
the other means or schemes before it becomes a series?
I find it difficult to accept the wide discretion given to the prosecution by the Plunder Law. An elective
official who is a political threat may be charged for plunder as one single offense punishable by death
while one in the good graces of the powers-that-be is charged only under the Revised Penal Code.
The confusion generated by a vague law is exemplified in the informations filed against petitioner in
this case. Petitioner was charged with eight crimes, namely: [1] plunder; [2] violation of Section 3 (e) of
R.A. 3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another violation of Section 3 (e) of R.A.
3019; [5] violation of Section 3 (c) of R.A. 3019; [6] violation of Section 7 (d) of R.A. 6713; [7]
perjury; [8] illegal use of alias.
Only twelve days later, the prosecution withdrew five (5) of the informations which it consolidated into
only one offense of plunder. The prosecution was not clear about the steps to take in instances where the
words "combination" or "series" may or may not apply. It could not understand the coverage of the law
as acts repetitive of the same offense or acts constituting one crime lumped up with other crimes or both
criminal and non-criminal acts punished as one new offense of plunder.
In the following exchange during the deliberations on Senate Bill No. 733, Senators Neptali Gonzales
and Wigberto Tanada voiced serious doubts on the constitutionality of the definition of plunder, thus:
Senator Gonzales:
To commit the offense of plunder, as defined in this act, and while constituting a single offense, it must
consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public funds,
swindling, falsification of public documents, coercion, theft, fraud, and illegal exaction and graft or
corrupt practices and like offenses. Now, Mr. President, I think this provision, by itself will be vague. I
am afraid that it may be faulted for being violative of the due process clause and the right to be informed
of the nature and cause of accusation of an accused. Because what is meant by "series of overt or
criminal acts?" I mean, would 2, 4, or 5 constitute a series? During the period of amendments, can we
establish a minimum of overt acts like, for example, robbery in band? The law defines what is robbery
in band by the number of participants therein. In this particular case, probably, we can statutorily
provide for the definition of "series" so that two, for example, would that already be a series? Or, three,
what would be the basis for such determination?
Senator Tanada:
I think, Mr. President, that would be called for, this being a penal legislation, we should be very clear as
to what it encompasses; otherwise, we may contravene the constitutional provision on the right of
accused to due process. (Emphasis ours)22
The foregoing concerns to statutorily provide for the definition of "series" or "combination" have,
however, not been addressed and the terms were left undefined. The law, as presently crafted, does not
specify whether a "series" means two, three, four or even more of the overt or criminal acts listed in
Section 1 (d) of R.A. 7080.
Even more difficult to accept is when the trial court has to supply the missing elements, in effect taking
over corrective or punitive legislation from Congress. The attempts of the Sandiganbayan in the
questioned Resolution do not clarify. They instead serve to confuse and increase the ambiguity even
more.
The Sandiganbayan interprets the words "combination" and "series" of overt or criminal acts through
terms found in American decisions like "pattern," "conspiracy," "over-all unlawful scheme," or "general
plan of action or method."
The above definitions are not found in the Plunder Law. The use of such phrases as "over-all scheme" or The questioned statutes were enacted purportedly in the interest of justice, public peace and order, and
"general plan" indicates that the Sandiganbayan is expanding the coverage of the law through the use of the rule of law. These purposes are not served by R.A. Nos. 7080 and 7659. These statutes allow the
ambiguous phrases capable of dual or multiple applications. When do two or three acts of the same prosecutors and the courts arbitrary and too broad discretionary powers in their enforcement. Fair, equal
offense of malversation constitute a "pattern," "a general plan of action," or an "over-all scheme?" and impartial justice would be denied.
Would one malversation in the first week of a public officer’s tenure and another similar act six (6)
years later become a "combination," a "pattern," or a "general plan of action?" For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law for being
unconstitutional.
I agree with petitioner’s concern over the danger that the trial court may allow the specifications of
details in an information to validate a statute inherently void for vagueness. An information cannot rise
higher than the statute upon which it is based. Not even the construction by the Sandiganbayan of a Footnotes
vague or ambiguous provision can supply the missing ingredients of the Plunder Law.
1 Constitution, Article III, Sections 1, 12 & 14.
The right of an accused to be informed of the nature and cause of the accusation against him is most
often exemplified in the care with which a complaint or information should be drafted. However, the 2 Constitution, Article III, Section 14.
clarity and particularity required of an information should also be present in the law upon which the
charges are based. If the penal law is vague, any particularity in the information will come from the 3 People v. Nazario, 165 SCRA 186, 195 [1988].
prosecutor. The prosecution takes over the role of Congress.
4 Connally v. General Construction Co., 269 U.S. 385 [1926].
The fact that the details of the charges are specified in the Information will not cure the statute of its
constitutional infirmity. If on its face the challenged provision is repugnant to the due process clause, 5 Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].
specification of details of the offense intended to be charged would not serve to validate it.23 In other
words, it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns 6 People v. Nazario, supra; Scull v. Commonwealth, 359 U.S. 344, 353.
against transgression. No one may be required at peril of life, liberty or property to speculate as to the
meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.24 7 Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.

Definiteness is a due process requirement. It is especially important in its application to penal statutes. 8 U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193.
Vagueness and unintelligibility will invariably lead to arbitrary government action. The purpose of the
due process clause is to exclude everything that is arbitrary and capricious affecting the rights of the 9 National Association for the Advancement of Colored People (NAACP) v. Alabama, 377 U.S. 288.
citizen.25 Congress, in exercising its power to declare what acts constitute a crime, must inform the
citizen with reasonable precision what acts it intends to prohibit so that he may have a certain 10 U.S. v. Petrillo, 332 U.S. 1; U.S. v. Spector, 343 U.S. 169; U.S. v. Darby, 312 U.S. 100.
understandable rule of conduct and know what acts it is his duty to avoid.26
11 Republic Act No. 7080, Section 1 (d).

12 Smith v. Goguen, 415 U.S. 566.
13 "Any public officer who shall agree to perform an act constituting a crime, in connection with the
performance of his official duties, in consideration of any offer, promise, gift or present received by
such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in
its medium and minimum periods and a fine of not less than three times the value of the gift, in addition
to the penalty corresponding to the crime agreed upon, if the same shall have been committed.
"If the gift was accepted by the officer in consideration of the execution of an act which does not
constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the
preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the
penalties of prision correccional in its medium period and a fine of not less than twice the value of such
gift.
"If the object for which the gift was received or promised was to make the public officer refrain from
doing something which it was his official duty to do, he shall suffer the penalties of prision correccional
in its maximum period to prision mayor in its minimum period and a fine of not less than three times the
value of such gift.
"In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of
special temporary disqualification.
16 342 U.S. 246.
17 Rochin v. California, 324 U.S. 165, 168.
18 Republic Act No. 7080, "Section 4. Rule of Evidence. –-- For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate of acquire ill-gotten wealth, it being
sufficient to establish beyond reasonable doubt a pattern of overt criminal acts indicative of the overall
unlawful scheme or conspiracy."
19 U.S. v. Lim Buanco, 14 Phil. 472 [1910]; U.S. v. Remigio, 39 Phil. 599 [1919].
20 In re Winship, 397 U.S. 358 ,364.
21 See Keyshian v. Board of Regents of the University of the State of New York, 385 U.S. 589; and
Shelton v. Tucker, 364 U.S. 479.
22 Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310.
23 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
24 Ibid., p. 453.

"The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, 25 Nebbia v. New York, 291 U.S. 502.
appraisal and claim commissioners, experts or any other persons performing public duties."
26 Musser v. Utah, supra; Giaccio v. Pennsylvania, 382 U.S. 399; United States v. Brewer, supra.
14 "The penalties of prision correccional in its medium and maximum periods, suspension and public
censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his
office." The Lawphil Project - Arellano Law Foundation

15 U.S. v. Go Chico, 14 Phil. 134 [1909]. MENDOZA, J., concurring in the judgment:
Before I explain my vote, I think it necessary to restate the basic facts.
Petitioner Joseph Ejercito Estrada was President of the Philippines until January 20, 2001 when he was
forced to vacate the presidency by people power and then Vice President Gloria Macapagal-Arroyo
succeeded him in office.1 He was charged, in eight cases filed with the Sandiganbayan, with various
offenses committed while in office, among them plunder, for allegedly having amassed ill-gotten wealth
in the amount of P4.1 billion, more or less. He moved to quash the information for plunder on the
ground that R.A. No. 7080, otherwise called the Anti-Plunder Law, is unconstitutional and that the
information charges more than one offense.
In its resolution dated July 9, 2001, the Sandiganbayan denied petitioner’s motion, along with those
filed by his co-accused, Edward Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner brought this
petition for certiorari and prohibition under Rule 65 to set aside the Sandiganbayan’s resolution
principally on the ground that the Anti-Plunder Law is void for being vague and overbroad. We gave
due course to the petition and required respondents to file comments and later heard the parties in oral
arguments on September 18, 2001 and on their memoranda filed on September 28, 2001 to consider the
constitutional claims of petitioner.
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July 12, 1991 pursuant to the
constitutional mandate that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."2 Section 2 of the statute provides:
Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of
overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at
least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.
The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State. (As amended by Sec. 12, R.A. No. 7659).
The term "ill-gotten wealth" is defined in §1(d) as follows:
"Ill-gotten wealth," means any asset, property, business enterprise or material possession of any person
within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following
means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury.
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business enterprise
or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
Section 4 of the said law states:
Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED
"ON ITS FACE"
The amended information against petitioner charges violations of §2, in relation to §1(d)(1)(2), of the
statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a "Asiong
Salonga" and a.k.a "Jose Velarde," together with Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or
Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction
of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President
of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who
are members of his family, relatives by affinity or consanguinity, business associates, subordinates
and/or other persons, by taking undue advantage of his official position, authority, relationship,
connection, or influence, did then and there wilfully, unlawfully and criminally amass, accumulate and
acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four
billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen
centavos [₱4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the
expense and to the damage of the Filipino people and the Republic of the Philippines, through any or a
combination or a series of overt or criminal acts, or similar schemes or means, described as follows:
(a) by receiving or collecting, directly or indirectly, on several instances, money in the aggregate
amount of five hundred forty-five million pesos (₱545,000,000.00), more or less, from illegal gambling
in the form of gift, share, percentage, kickback or any form of pecuniary benefit, by himself and/or in
connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T. Ricaforte,
Edward Serapio, and John Does and Jane Does, in consideration of toleration or protection of illegal
gambling;
(b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or
their personal gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION
PESOS [₱130,000,000.00], more or less, representing a portion of the two hundred million pesos
[₱200,000,000.00] tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, and other John
Does and Jane Does;
(c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service
Insurance System (GSIS) to purchase 351,878,000 shares of stocks, more or less, and the Social
Security System (SSS), 329,855,000 shares of stocks, more or less, of the Belle Corporation in the
amount of more or less one billion one hundred two million nine hundred sixty five thousand six
hundred seven pesos and fifty centavos [₱1,102,965,607.50] and more or less seven hundred forty four
million six hundred twelve thousand and four hundred fifty pesos [₱744,612,450.00], respectively, or a
total of more or less one billion eight hundred forty seven million five hundred seventy eight thousand
fifty seven pesos and fifty centavos [₱1,847,578,057.50]; and by collecting or receiving, directly or
indirectly, by himself and/or in connivance with John Does and Jane Does, commissions or percentages
by reason of said purchases of shares of stock in the amount of one hundred eighty nine million seven
hundred thousand pesos [₱189,700,000.00], more or less, from the Belle Corporation which became part
of the deposit in the Equitable-PCI Bank under the account name "Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, or any form
of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more or less three
billion two hundred thirty three million one hundred four thousand one hundred seventy three pesos and
seventeen centavos [₱3,233,104,173.17] and depositing the same under his account name "Jose
Velarde" at the Equitable-PCI Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001
But, although this is a prosecution under §2, in relation to §1(d)(1)(2), what we are seeing here is a
wholesale attack on the validity of the entire statute. Petitioner makes little effort to show the alleged
invalidity of the statute as applied to him. His focus is instead on the statute as a whole as he attacks "on
their face" not only §§1(d)(1)(2) of the statute but also its other provisions which deal with plunder
committed by illegal or fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in
business (§1(d)(4)), and establishment of monopolies and combinations or implementation of decrees
intended to benefit particular persons or special interests (§1(d)(5)).
These other provisions of the statute are irrelevant to this case. What relevance do questions regarding
the establishment of monopolies and combinations, or the ownership of stocks in a business enterprise,
or the illegal or fraudulent dispositions of government property have to the criminal prosecution of
petitioner when they are not even mentioned in the amended information filed against him? Why should
it be important to inquire whether the phrase "overt act" in §1(d) and §2 means the same thing as the
phrase "criminal act" as used in the same provisions when the acts imputed to petitioner in the amended
information are criminal acts? Had the provisions of the Revised Penal Code been subjected to this kind
of line-by-line scrutiny whenever a portion thereof was involved in a case, it is doubtful if we would
have the jurisprudence on penal law that we have today. The prosecution of crimes would certainly have
been hampered, if not stultified. We should not even attempt to assume the power we are asked to
exercise. "The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised
with reference to hypothetical cases . . . . In determining the sufficiency of the notice a statute must of
necessity be examined in the light of the conduct with which a defendant is charged."3
Nonetheless, it is contended that because these provisions are void for being vague and overbroad, the
entire statute, including the part under which petitioner is being prosecuted, is also void. And if the
entire statute is void, there is no law under which he can be prosecuted for plunder. Nullum crimen sine
lege, nullum poena sine lege.
Two justifications are advanced for this facial challenge to the validity of the entire statute. The first is
that the statute comes within the specific prohibitions of the Constitution and, for this reason, it must be
given strict scrutiny and the normal presumption of constitutionality should not be applied to it nor the
usual judicial deference given to the judgment of Congress.4 The second justification given for the
facial attack on the Anti-Plunder Law is that it is vague and overbroad.5
We find no basis for such claims either in the rulings of this Court or of those of the U.S. Supreme
Court, from which petitioner’s counsel purports to draw for his conclusions. We consider first the claim
that the statute must be subjected to strict scrutiny.
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres6 that "when the integrity of a fundamental right is at stake,
this Court will give the challenged law, administrative order, rule or regulation stricter scrutiny" and that
"It will not do for authorities to invoke the presumption of regularity in the performance of official
duties." As will presently be shown, "strict scrutiny," as used in that decision, is not the same thing as
the "strict scrutiny" urged by petitioner. Much less did this Court rule that because of the need to give
"stricter scrutiny" to laws abridging fundamental freedoms, it will not give such laws the presumption of
validity.
Petitioner likewise cites "the most celebrated footnote in [American] constitutional law," i.e., footnote 4
of the opinion in United States v. Carolene Products Co.,7 in which it was stated:
There may be narrower scope for operation of the presumption of constitutionality when legislation
appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most
other types of legislation.
Nor need we inquire whether similar considerations enter into the review of statutes directed at
particular religious, or national, or racial minorities: whether prejudice against discrete and insular
minorities may be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly
more searching judicial inquiry.
Again, it should be noted that what the U.S. Supreme Court said is that "there may be narrower scope
for the operation of the presumption of constitutionality" for legislation which comes within the first ten
amendments to the American Federal Constitution compared to legislation covered by the Fourteenth
Amendment Due Process Clause. The American Court did not say that such legislation is not to be
presumed constitutional, much less that it is presumptively invalid, but only that a "narrower scope" will
be given for the presumption of constitutionality in respect of such statutes. There is, therefore, no
warrant for petitioner’s contention that "the presumption of constitutionality of a legislative act is
applicable only where the Supreme Court deals with facts regarding ordinary economic affairs, not
where the interpretation of the text of the Constitution is involved."8
What footnote 4 of the Carolene Products case posits is a double standard of judicial review: strict
scrutiny for laws dealing with freedom of the mind or restricting the political process, and deferential or
rational basis standard of review for economic legislation. As Justice (later Chief Justice) Fernando
explained in Malate Hotel and Motel Operators Ass’n v. The City Mayor,9 this simply means that "if
the liberty involved were freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the liberty curtailed affects what are
at the most rights of property, the permissible scope of regulatory measures is wider."
Hence, strict scrutiny is used today to test the validity of laws dealing with the regulation of speech,
gender, or race and facial challenges are allowed for this purpose. But criminal statutes, like the Anti-
Plunder Law, while subject to strict construction, are not subject to strict scrutiny. The two (i.e., strict
construction and strict scrutiny) are not the same. The rule of strict construction is a rule of legal
hermeneutics which deals with the parsing of statutes to determine the intent of the legislature. On the
other hand, strict scrutiny is a standard of judicial review for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental freedoms. It is set opposite such
terms as "deferential review" and "intermediate review."
Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental
interest, without courts seriously inquiring into the substantiality of such interest and examining the
alternative means by which the objectives could be achieved. Under intermediate review, the
substantiality of the governmental interest is seriously looked into and the availability of less restrictive
alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving that
interest.10
Considering these degrees of strictness in the review of statutes, how many criminal laws can survive
the test of strict scrutiny to which petitioner proposes to subject them? How many can pass muster if, as
petitioner would have it, such statutes are not to be presumed constitutional? Above all, what will
happen to the State’s ability to deal with the problem of crimes, and, in particular, with the problem of
graft and corruption in government, if criminal laws are to be upheld only if it is shown that there is a
compelling governmental interest for making certain conduct criminal and if there is no other means
less restrictive than that contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial Challenge,
Not Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial review of its
validity. The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application, violates the first essential of due process of law."11 The overbreadth
doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms."12
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity."13 The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law,
the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an ‘overbreadth’ doctrine outside the limited context
of the First Amendment."14 In Broadrick v. Oklahoma,15 the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative Act is … the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists under which
the Act would be valid."16 As for the vagueness doctrine, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of
others."17
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional."18 As has been
pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] ‘as applied’ to a particular defendant."19 Consequently, there is no basis for
petitioner’s claim that this Court review the Anti-Plunder Law on its face and in its entirety.
C. Anti-Plunder Law Should be Construed "As Applied"
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected.20 It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts.21 But, as the U.S.
Supreme Court pointed out in Younger v. Harris:22
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
This is the reason "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"23 and is generally disfavored.24 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged.25
This brings me to the question whether, as applied, §2, in relation to §1(d)(1)(2), of the Anti-Plunder
Law is void on the ground of vagueness and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada in the Sandiganbayan is for violation
of §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law, which, so far as pertinent, provide:
SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination
or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be
punished by reclusion perpetua to death....
SEC. 1. Definition of Terms. ¾ ...
(d) "Ill-gotten wealth," means any asset, property, business enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any combination or series of the
following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury.
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
The charge is that in violation of these provisions, during the period June 1998 to January 2001,
petitioner, then the President of the Philippines, willfully, unlawfully, and criminally amassed wealth in
the total amount of P4,097,804,173.17, more or less, through "a combination or series of overt or
criminal acts," to wit: (1) by receiving or collecting the total amount of P545,000,000.00, more or less,
from illegal gambling by himself and/or in connivance with his co-accused named therein, in exchange
for protection of illegal gambling; (2) by misappropriating, converting, or misusing, by himself or in
connivance with his co-accused named therein, public funds amounting to P130,000,000.00, more or
less, representing a portion of the share of the Province of Ilocos Sur in the tobacco excise tax; (3) by
ordering the GSIS and the SSS to buy shares of stocks of the Belle Corp., worth P1,102,965,607.50 and
P744,612,450.00 respectively, or the total amount of P1,847,578,057.50, for which he received as
commission the amount of P189,700,000.00, more or less, from Belle Corp.; (4) by unjustly enriching
himself from commissions, gifts, shares, percentages, and kickbacks in the amount of
P3,233,104,173.17, which he deposited in the Equitable-PCI Bank under the name of "Jose Velarde."
Anyone reading the law in relation to this charge cannot possibly be mistaken as to what petitioner is
accused of in Criminal Case No. 26558 of the Sandiganbayan. But, repeatedly, petitioner complains that
the law is vague and deprives him of due process. He invokes the ruling in Connally v. General Constr.
Co.26 that "a statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law." He does this by questioning not only §2, in relation to §1(d)(1)(2),
as applied to him, but also other provisions of the Anti-Plunder Law not involved in this case. In 55 out
of 84 pages of discussion in his Memorandum, petitioner tries to show why on their face these
provisions are vague and overbroad by asking questions regarding the meaning of some words and
phrases in the statute, to wit:
1. Whether "series" means two, three, or four overt or criminal acts listed in §1(d) in view of the alleged
divergence of interpretation given to this word by the Ombudsman, the Solicitor General, and the
Sandiganbayan, and whether the acts in a series should be directly related to each other;
2. Whether "combination" includes two or more acts or at least two of the "means or similar schemes"
mentioned in §1(d);
3. Whether "pattern" as used in §1(d) must be related to the word "pattern" in §4 which requires that it
be "indicative of an overall unlawful scheme or conspiracy";
4. Whether "overt" means the same thing as "criminal";
5. Whether "misuse of public funds" is the same as "illegal use of public property or technical
malversation";
6. Whether "raids on the public treasury" refers to raids on the National Treasury or the treasury of a
province or municipality;
7. Whether the receipt or acceptance of a gift, commission, kickback, or pecuniary benefits in
connection with a government contract or by reason of his office, as used in §1(d)(2), is the same as
bribery in the Revised Penal Code or those which are considered corrupt practices of public officers;
8. Whether "illegal or fraudulent conveyance or disposition of assets belonging to the National
Government," as used in §1(d)(3), refers to technical malversation or illegal use of public funds or
property in the Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation, such as a family firm engaged in fishing,
is prohibited under §1(d)(4);
10. Whether the phrase "monopolies or other combinations in restraint of trade" in §1(d)(5) means the
same thing as "monopolies and combinations in restraint of trade" in the Revised Penal Code because
the latter contemplates monopolies and combinations established by any person, not necessarily a public
officer; and
11. Whether under §1(d)(5) it is the public officer who intends to confer benefit on a particular person
by implementing a decree or it is the decree that is intended to benefit the particular person and the
public officer simply implements it.
Many more questions of this tenor are asked in the memorandum of petitioner27 as well as in the dissent
of MR. JUSTICE KAPUNAN. Not only are they irrelevant to this case, as already pointed out. It is also
evident from their examination that what they present are simply questions of statutory construction to
be resolved on a case-to-case basis. Consider, for example, the following words and phrases in §1(d)
and §2:
A. "Combination or series of overt or criminal acts"
Petitioner contends that the phrase "combination or series of overt, or criminal acts" in §1(d) and §2
should state how many acts are needed in order to have a "combination" or a "series." It is not really
required that this be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the following
remarks of Senators Gonzales and Tañada during the discussion of S. No. 733 in the Senate:
SENATOR GONZALES. To commit the offense of plunder, as defined in this Act while constituting a
single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion,
malversation of public funds, swindling, falsification of public documents, coercion, theft, fraud, and
illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this
provision, by itself, will be vague. I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of accusation of an accused.
Because, what is meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a
series? During the period of amendments, can we establish a minimum of overt acts like, for example,
robbery in band? The law defines what is robbery in band by the number of participants therein.
In this particular case, probably, we can statutorily provide for the definition of "series" so that two, for
example, would that be already a series? Or, three, what would be the basis for such a determination?
SENATOR TAÑADA. I think, Mr. President, that would be called for, this being a penal legislation, we
should be very clear as to what it encompasses; otherwise, we may contravene the constitutional
provision on the right of the accused to due process.28
But, as the later discussion in the Senate shows, the senators in the end reached a consensus as to the
meaning of the phrase so that an enumeration of the number of acts needed was no longer proposed.
Thus, the record shows:
SENATOR MACEDA. In line with our interpellations that sometimes "one" or maybe even "two" acts
may already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a
series of overt or." To read, therefore: "or conspiracy COMMITTED by criminal acts such." Remove
the idea of necessitating "a series." Anyway, the criminal acts are in the plural.
SENATOR TAÑADA. That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT. Probably, two or more would be . . .
SENATOR MACEDA. Yes, because "a series" implies several or many; two or more.
SENATOR TAÑADA: Accepted, Mr. President.
....
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.29
Indeed, the record shows that no amendment to S. No. 733 was proposed to this effect. To the contrary,
Senators Gonzales and Tañada voted in favor of the bill on its third and final reading on July 25, 1989.
The ordinary meaning of the term "combination" as the "union of two things or acts" was adopted,
although in the case of "series," the senators agreed that a repetition of two or more times of the same
thing or act would suffice, thus departing from the ordinary meaning of the word as "a group of usually
three or more things or events standing or succeeding in order and having a like relationship to each
other," or "a spatial or temporal succession of persons or things," or "a group that has or admits an order
of arrangement exhibiting progression."30
In the Bicameral Conference Committee on Justice meeting held on May 7, 1991, the same meanings
were given to the words "combination" and "series." Representative Garcia explained that a
combination is composed of two or more of the overt or criminal acts enumerated in §1(d), while a
series is a repetition of any of the same overt or criminal acts. Thus:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION
ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are included, how
about a series of the same act? For example, through misappropriation, conversion, misuse, will these be
included also?
....
REP. ISIDRO: When we say combination, it seems that ¾
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾ but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It
can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not [a] series. It’s a combination. Because when we say combination or series, we
seem to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really, from ordinary crimes. That is
why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime
but we have here a combination or series of overt or criminal acts. So. . .
....
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different. . . .
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Now a series, meaning, repetition. . .31
Thus, resort to the deliberations in Congress will readily reveal that the word "combination" includes at
least two different overt or criminal acts listed in R.A. No. 7080, such as misappropriation (§1(d)(1))
and taking undue advantage of official position (§1(d)(6)). On the other hand, "series" is used when the
offender commits the same overt or criminal act more than once. There is no plunder if only one act is
proven, even if the ill-gotten wealth acquired thereby amounts to or exceeds the figure fixed by the law
for the offense (now P50,000,000.00). The overt or criminal acts need not be joined or separated in
space or time, since the law does not make such a qualification. It is enough that the prosecution proves
that a public officer, by himself or in connivance with others, amasses wealth amounting to at least P50
million by committing two or more overt or criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is the subject of conflicting
decisions of various Circuit Courts of Appeals in the United Sates. It turns out that the decisions
concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which provides:
(b) Joinder of Defendants: Two or more defendants may be charged in the same indictment or
information if they are alleged to have participated in the same act or transaction or in the same series of
acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more
counts together or separately and all of the defendants need not be charged on each count. (Emphasis
added)
The fact that there is a conflict in the rulings of the various courts does not mean that Rule 8(b) is void
for being vague but only that the U.S. Supreme Court should step in, for one of its essential functions is
to assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, §6 of the 1997 Code of Civil Procedure. It reads:
SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as
plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as
may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in
connection with any proceedings in which he may have no interest. (Emphasis added)
This provision has been in our Rules of Court since 1940 but it has never been thought of as vague. It
will not do, therefore, to cite the conflict of opinions in the United States as evidence of the vagueness
of the phrase when we do not have any conflict in this country.
B. "Pattern of overt or criminal acts"
Petitioner contends that it is not enough that there be at least two acts to constitute either a combination
or series because §4 also mentions "a pattern of overt or criminal acts indicative of the overall scheme
or conspiracy," and "pattern" means "an arrangement or order of things or activity."
A "pattern of overt or criminal acts" is required in §4 to prove "an unlawful scheme or conspiracy." In
such a case, it is not necessary to prove each and every criminal act done in furtherance of the scheme or
conspiracy so long as those proven show a pattern indicating the scheme or conspiracy. In other words,
when conspiracy is charged, there must be more than a combination or series of two or more acts. There
must be several acts showing a pattern which is "indicative of the overall scheme or conspiracy." As
Senate President Salonga explained, if there are 150 constitutive crimes charged, it is not necessary to
prove beyond reasonable doubt all of them. If a pattern can be shown by proving, for example, 10
criminal acts, then that would be sufficient to secure conviction.32
The State is thereby enabled by this device to deal with several acts constituting separate crimes as just
one crime of plunder by allowing their prosecution by means of a single information because there is a
common purpose for committing them, namely, that of "amassing, accumulating or acquiring wealth
through such overt or criminal acts." The pattern is the organizing principle that defines what otherwise
would be discreet criminal acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only problems of statutory construction, not
vagueness or overbreadth. In Primicias v. Fugoso,33 an ordinance of the City of Manila, prohibiting the
holding of parades and assemblies in streets and public places unless a permit was first secured from the
city mayor and penalizing its violation, was construed to mean that it gave the city mayor only the
power to specify the streets and public places which can be used for the purpose but not the power to
ban absolutely the use of such places. A constitutional doubt was thus resolved through a limiting
construction given to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman, the Solicitor General, and the
Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of the vagueness of
the statute and, therefore, a ground for its invalidation. For sometime it was thought that under Art. 134
of the Revised Penal Code convictions can be had for the complex crime of rebellion with murder,
arson, and other common crimes. The question was finally resolved in 1956 when this Court held that
there is no such complex crime because the common crimes were absorbed in rebellion.34 The point is
that Art. 134 gave rise to a difference of opinion that nearly split the legal profession at the time, but no
one thought Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative intention is discoverable with the aid of
the canons of construction, the void for vagueness doctrine has no application.
In Connally v. General Constr. Co.35 the test of vagueness was formulated as follows:
[A] statute which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law.
Holmes’s test was that of the viewpoint of the bad man. In The Path of the Law, Holmes said:
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.36
Whether from the point of view of a man of common intelligence or from that of a bad man, there can
be no mistaking the meaning of the Anti-Plunder Law as applied to petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA
Petitioner argues that, in enacting the statute in question, Congress eliminated the element of mens rea,
or the scienter, thus reducing the burden of evidence required for proving the crimes which are mala in
se.37
There are two points raised in this contention. First is the question whether the crime of plunder is a
malum in se or a malum prohibitum. For if it is a malum prohibitum, as the Ombudsman and the
Solicitor General say it is,38 then there is really a constitutional problem because the predicate crimes
are mainly mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal intent. Precisely because the constitutive crimes
are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that
the amended information alleges that the crime of plunder was committed "willfully, unlawfully and
criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the reason
he claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the
deliberation on S. No. 733:
SENATOR TAÑADA. . . . And the evidence that will be required to convict him would not be evidence
for each and every individual criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.39
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript
quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman’s view, would provide for a speedier and faster process of
attending to this kind of cases?
SENATOR TAÑADA. Yes, Mr. President . . .40
Señator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution
need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if
it proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of
the crime must be proved and the requisite mens rea must be shown.
Indeed, §2 provides that ¾
Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to
"any person who participates with the said public officers in the commission of an offense contributing
to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the
public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about
not supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."41
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v.
Echagaray:42
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as
to completely disrupt the normal course of his or her growth as a human being. . . . Seen in this light, the
capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death;
and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as
well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is
detained for more than three days or serious physical injuries were inflicted on the victim or threats to
kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed
or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling
from decades of corrupt tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures
of society and the psyche of the populace. [With the government] terribly lacking the money to provide
even the most basic services to its people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses
involving government officials, employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum
in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se43 and
it does not matter that such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent wrongness of the acts.
B. The Penalty for Plunder
The second question is whether under the statute the prosecution is relieved of the duty of proving
beyond reasonable doubt the guilt of the defendant. It is contended that, in enacting the Anti-Plunder
Law, Congress simply combined several existing crimes into a single one but the penalty which it
provided for the commission of the crime is grossly disproportionate to the crimes combined while the
quantum of proof required to prove each predicate crime is greatly reduced.
We have already explained why, contrary to petitioner’s contention, the quantum of proof required to
prove the predicate crimes in plunder is the same as that required were they separately prosecuted. We,
therefore, limit this discussion to petitioner’s claim that the penalty provided in the Anti-Plunder Law is
grossly disproportionate to the penalties imposed for the predicate crimes. Petitioner cites the following
examples:
For example, please consider the following ‘combination’ or ‘series’ of overt or criminal acts (assuming
the P50 M minimum has been acquired) in light of the penalties laid down in the Penal Code:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision
correccional in its medium and maximum periods),
– combined with –
one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with
prision correccional in its medium period to prision mayor in its minimum period,
- equals -
plunder (punished by reclusion perpetua to death plus forfeiture of assets under R.A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the revised Penal Code with prision
correccional in its minimum period or a fine ranging from P200 to P1,000 or both),
– combined with –
one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with
prision correccional in its minimum period or a fine ranging from P200 to P6,000, or both),
-equals-
plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080.
c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in
its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code),
– combined with –
one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised penal
Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both,
- equals -
plunder, punished by reclusion perpetua to death, and forfeiture of assets)44
But this is also the case whenever other special complex crimes are created out of two or more existing
crimes. For example, robbery with violence against or intimidation of persons under Art. 294, par. 5 of
the Revised Penal Code is punished with prision correccional in its maximum period (4 years, 2 months,
and 1 day) to prision mayor in its medium period (6 years and 1 day to 8 years). Homicide under Art.
249 of the same Code is punished with reclusion temporal (12 years and 1 day to 20 years). But when
the two crimes are committed on the same occasion, the law treats them as a special complex crime of
robbery with homicide and provides the penalty of reclusion perpetua to death for its commission.
Again, the penalty for simple rape under Art. 266-B of the Revised Penal Code is reclusion perpetua,
while that for homicide under Art. 249 it is reclusion temporal (12 years and 1 day to 20 years). Yet,
when committed on the same occasion, the two are treated as one special complex crime of rape with
homicide and punished with a heavier penalty of reclusion perpetua to death. Obviously, the legislature
views plunder as a crime as serious as robbery with homicide or rape with homicide by punishing it with
the same penalty. As the explanatory note accompanying S. No. 733 explains:
Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason,
punishes the use of high office for personal enrichment, committed thru a series of acts done not in the
public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and
abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be
penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft
but constitute the plunder of an entire nation resulting in material damage to the national economy. The
above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a
legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as
a deterrent to those with similar inclination to succumb to the corrupting influences of power.
Many other examples drawn from the Revised Penal Code and from special laws may be cited to show
that, when special complex crimes are created out of existing crimes, the penalty for the new crime is
heavier.
______________________
To recapitulate, had R.A. No. 7080 been a law regulating speech, I would have no hesitation examining
it on its face on the chance that some of its provisions ¾ even though not here before us ¾ are void. For
then the risk that some state interest might be jeopardized, i.e., the interest in the free flow of
information or the prevention of "chill" on the freedom of expression, would trump any marginal
interest in security.
But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute designed to combat graft
and corruption, especially those committed by highly-placed public officials. As conduct and not speech
is its object, the Court cannot take chances by examining other provisions not before it without risking
vital interests of society. Accordingly, such statute must be examined only "as applied" to the defendant
and, if found valid as to him, the statute as a whole should not be declared unconstitutional for
overbreadth or vagueness of its other provisions. Doing so, I come to the following conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the Anti-Plunder Law, cannot be determined
by applying the test of strict scrutiny in free speech cases without disastrous consequences to the State’s
effort to prosecute crimes and that, contrary to petitioner’s contention, the statute must be presumed to
be constitutional;
2. That in determining the constitutionality of the Anti-Plunder Law, its provisions must be considered
in light of the particular acts alleged to have been committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor overbroad;
4. That, contrary to the contention of the Ombudsman and the Solicitor General, the crime of plunder is 11 Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate
a malum in se and not a malum prohibitum and the burden of proving each and every predicate crime is Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).
on the prosecution.
12 NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker, 364 U.S.
For these reasons, I respectfully submit that R.A. No. 7080 is valid and that, therefore, the petition 479, 5 L.Ed.2d 231 (1960).
should be dismissed.
13 Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413 (1972) (internal quotation marks
omitted).
Footnotes
14 United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697, 707 (1987). See also People v. De la
1 See Estrada v. Desierto, G.R. No. 146710, March 2, 2001; Estrada v. Macapagal-Arroyo, G.R. No. Piedra, G.R. No. 121777, Jan. 24, 2001.
146715, March 2, 2001.
15 413 U.S. 601, 612-613, 37 L.Ed. 2d 830, 840-841 (1973).
2 CONST., ART., Art. II, §27.
16 United States v. Salerno, supra.
3 United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 (1963)
(internal quotation marks omitted). 17 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.Ed.2d
362, 369 (1982).
4 Memorandum for the Petitioner, pp. 4-7.
18 United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960). The paradigmatic case is Yazoo
5 Id. at 11-66. & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912).

6 293 SCRA 161, 166 (1998). 19 K. Sullivan & G. Gunther, Constitutional Law 1299 (14th ed., 2001).

7 304 U.S. 144, 152, 82 L.Ed. 1234, 1241 (1938) (cases cited omitted). 20 Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev.
1321 (2000), arguing that, in an important sense, as applied challenges are the basic building blocks of
8 Memorandum for the Petitioner, p. 5. constitutional adjudication and that determinations that statutes are facially invalid properly occur only
as logical outgrowths of rulings on whether statutes may be applied to particular litigants on particular
9 20 SCRA 849, 865 (1967). facts.

10 Geoffrey R. Stone, Content-Neutral Restrictions, 54 Univ. of Chi. L. Rev. 46, 50-53 (1987).
21 Const., Art. VIII, §§1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 (1936):
"[T]he power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities."
22 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S. 17, 4
L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388
(1989).
32 Deliberations of the Conference Committee on Constitutional Amendments and Revision of Laws
held on Nov. 15, 1988.
33 80 Phil. 71 (1948).
34 People v. Hernandez, 99 Phil. 515 (1956); People v. Geronimo, 100 Phil. 90 (1956).
35 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators Ass’n v.
City Mayor, 20 SCRA 849, 867 (1967).

23 Broadrick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the Arts v. 36 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).
Finley, 524 U.S. 569, 580 (1998).
37 Memorandum for the Petitioner, p. 32.
24 FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 (1990); Cruz v. Secretary of
Environment and Natural Resources, G.R. No. 135385, Dec. 6, 2000 (Mendoza, J., Separate Opinion). 38 See Memorandum for the Respondents, pp. 79-88.

25 United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 (1963). 39 4 Record of the Senate 1316, June 5, 1989.

26 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators Ass’n v. 40 Id.
City Mayor, 20 SCRA 849, 867 (1967).
41 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
27 Memorandum for the Petitioner, pp. 11-66.
42 267 SCRA 682, 721-2 (1997) (emphasis added).
28 4 Record of the Senate 1310, June 5, 1989.
43 Black’s Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
29 4 Record of the Senate 1339, June 6, 1989.
44 Memorandum for the Petitioner, pp. 62-63 (emphasis in the original).
30 Webster’s Third New International Dictionary 2073 (1993).

31 Deliberations of the Joint Conference Committee on Justice held on May 7, 1991. The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
(Concurring)
PANGANIBAN, J.:
In his Petition for Certiorari under Rule 65 of the Rules of Court, former President Joseph Ejercito
Estrada seeks the annulment of the Sandiganbayan Resolution dated July 9, 2001, which denied his
Motion to Quash. He further prays to prohibit the anti-graft court from conducting the trial of petitioner
in Criminal Case No. 26558, on the ground that the statute under which he has been charged – the Anti-
Plunder Law or Republic Act (RA) 7080 -- is unconstitutional.
In sum, he submits three main arguments to support his thesis, as follows:
1. "RA 7080 is vague and overbroad on its face and suffers from structural deficiency and ambiguity."1
2. "RA 7080 reduces the standard of proof necessary for criminal conviction, and dispenses with proof
beyond reasonable doubt of each and every criminal act done in furtherance of the crime of plunder."2
3. "RA 7080 has been admitted by respondent to be malum prohibita which deprives petitioner of a
basic defense in violation of due process."3
I have read former President Estrada’s Petition, Reply, Memorandum and other pleadings and listened
carefully to his Oral Argument. However, I cannot agree with his thesis, for the following reasons:
(1) RA 7080 is not vague or overbroad. Quite the contrary, it is clear and specific especially on what it
seeks to prohibit and to penalize.
(2) The Anti-Plunder Law does not lessen the degree of proof necessary to convict its violator -- in this
case, petitioner.
(3) Congress has the constitutional power to enact laws that are mala prohibita and, in exercising such
power, does not violate due process of law.
First Issue: "Void for Vagueness" Not Applicable
In the main, petitioner attacks RA 7080 for being allegedly vague and ambiguous, for "wanting in its
essential terms," and for failing to "define what degree of participation means as [it] relates to the person
or persons charged with having participated with a public officer in the commission of plunder."4
In Dans v. People,5 reiterated recently in Sajul v. Sandiganbayan,6 this Court debunked the "void for
vagueness" challenge to the constitutionality of Section 3(g) of the Anti-Graft Law (RA 3019, as
amended) and laid down the test to determine whether a statute is vague. It has decreed that as long as a
penal law can answer the basic query "What is the violation?," it is constitutional. "Anything beyond
this, the ‘hows’ and the ‘whys,’ are evidentiary matters which the law cannot possibly disclose in view
of the uniqueness of every case x x x."
Elements of Plunder
The Anti-Plunder Law more than adequately answers the question "What is the violation?" Indeed, to
answer this question, any law student -- using basic knowledge of criminal law -- will refer to the
elements of the crime, which in this case are plainly and certainly spelled out in a straightforward
manner in Sections 2 and 1(d) thereof. Those elements are:
1. The offender is a public officer acting by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons.
2. The offender amasses, accumulates or acquires ill-gotten wealth.
3. The aggregate amount or total value of the ill-gotten wealth so amassed, accumulated or acquired is at
least fifty million pesos (₱50,000,000).
4. Such ill-gotten wealth -- defined as any asset, property, business enterprise or material possession of
any of the aforesaid persons (the persons within the purview of Section 2, RA 7080) -- has been
acquired directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:
(i) through misappropriation, conversion, misuse or malversation of public funds or raids on the public
treasury;
(ii) by receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
(iii) by the illegal or fraudulent conveyance or disposition of assets belonging to the national
government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
(iv) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business enterprise
or undertaking;
(v) by establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
(vi) by taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.7
Petitioner argues that, notwithstanding the above-detailed statement of the elements of the crime, there
is still vagueness because of the absence of definitions of the terms combination, series and pattern in
the text of the law.
Citing People v. Nazario,8 petitioner adds that "a statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application."
I say, however, that in that very case cited by petitioner, the Court cautioned that "the act (or law) must
be utterly vague on its face." When it can be "clarified either by a saving clause or by construction," the
law cannot be decreed as invalid. In other words, the absence of statutory definitions of words used in a
statute will not render the law "void for vagueness," if the meanings of such words can be determined
through the judicial function of construction.9
Solution: Simple
Statutory Construction
Indeed, simple statutory construction, not a declaration of unconstitutionality, is the key to the allegedly
vague words of the Anti-Plunder Law. And the most basic rule in statutory construction is to ascertain
the meaning of a term from the legislative proceedings. Verily, in the judicial review of a law’s
meaning, the legislative intent is paramount.10
Pervading the deliberations of the Bicameral Conference Committee on Justice held on May 7, 1991
was the common understanding of combination as a joining or combining of at least two dissimilar
things or acts, and series as a repetition or recurrence of the same thing at least twice.11 As a matter of
fact, the same understanding of those terms also prevailed during the Senate deliberations on Senate Bill
No. 733 (Plunder) earlier held on June 6, 1989.12 The Records of those deliberations speak for
themselves.
It is true that during the deliberations in the Senate, the late Senator Neptali A. Gonzales initially raised
concerns over the alleged vagueness in the use of the terms combination and series. I respectfully
submit, however, that the reliance13 of petitioner on such concerns is misplaced. That portion of the
interpellations, evincing the late senator’s reservations on the matter, had taken place during the session
of June 5, 1989.14 And the clarificatory remarks of Senate President Jovito R. Salonga and Senators
Wigberto Tañada, Alberto Romulo and Ernesto Maceda, which threw light on the matters in doubt,
happened the following day, June 6, 1989.15 In brief, the misgivings voiced by Senator Gonzales as to
the use of the two terms were adequately addressed, answered and disposed of the following day.
Thus, Senate Bill No. 733, defining and penalizing plunder, was passed and approved on third reading
on July 25, 1989, with 19 affirmative votes (including those of Senators Gonzales, Tañada, Maceda, and
petitioner himself) sans any negative vote or abstention. Indeed, some of the sharpest legal minds in the
country voted to approve the bill, even though it was bereft of statutory definitions. Likewise, it would
certainly be inconceivable for Senator Gonzales to have voted for the approval of the Bill had he
believed that it was vague to the point of constitutional infirmity; or at the very least, if he believed that
his earlier reservations or apprehensions were not fully satisfied.
At this juncture, may I call attention to the Record of the Joint Conference Meeting held on May 7,
1991.16 The portion thereof relied upon by petitioner17 features the exchanges involving
Representatives Garcia and Isidro and Senator Tañada on the meanings of the terms combination and
series. The quoted part of the Record would suggest that, somehow, particularly towards the end of the
meeting, the discussion among the legislators seemed to have degenerated into a clutch of unfinished
sentences and unintelligible phrases. Still, I believe that the deliberations did not actually sound the way
they were subsequently transcribed or as they now appear on the Record. Even more reluctant am I to
agree with petitioner that the apparent tenor of the deliberations evinced "a dearth of focus to render
precise the definition of the terms," or that the Committee members themselves were not clear on the
meanings of the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of stenographic note-taking,
especially in courtrooms and legislative halls. Too often, lawyers, parties-litigants and even judges find
themselves at the mercy of stenographers who are unfamiliar with certain legal terms; or who cannot
hear well enough or take notes fast enough; or who simply get confused, particularly when two or more
persons happen to be speaking at the same time. Often, transcripts of stenographic notes have portrayed
lawyers, witnesses, legislators and judges as blithering idiots, spouting utterly nonsensical jargon and
plain inanities in the course of a proceeding. The Record in question is no exception.
Rather than believe that the distinguished lawmakers went about their business uttering senseless half-
sentences to one another, I think that these learned and intelligent legislators of both chambers knew
what they were talking about, spoke their minds, and understood each other well, for the Record itself
does not indicate the contrary. Neither does it show any details or minutiae that would indicate that they
abandoned their earlier common understanding of the terms combination and series.
Specific Number or
Percentage Not Always Necessary
Regrettably, I shall also have to take issue with petitioner’s disquisition to the effect that "when penal
laws enacted by Congress make reference to a term or concept requiring a quantitative definition, these
laws are so crafted as to specifically state the exact number or percentage necessary to constitute the
elements of a crime," followed by a recitation of the minimum number of malefactors mentioned in the
statutory definitions of band, conspiracy, illegal recruitment by syndicate, large-scale illegal
recruitment, organized/syndicated crime group, and swindling by a syndicate. Thus, he insinuates that,
because RA 7080 has failed to specify precisely the minimum number of malefactors needed for an
offense to be properly classified as plunder, the law is vague or has somehow failed to meet the standard
for penal laws.
The aforequoted discourse would appear to be incongruous, if not totally misleading. As pointed out
during the Oral Argument on September 18, 2001, the crime of plunder can be committed by a public
officer acting alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime of Plunder;
Penalties. – Any public officer who, by himself or in connivance with x x x." Thus, the insistence on a
mathematical specification or precise quantification is essentially without basis. And lest anyone believe
that the Anti-Plunder Law is unusual in this respect, let me just recall that the RICO law, to which
petitioner made repeated references in his Amended Petition, can likewise be violated by a single
individual.18
Not Oppressive
or Arbitrary
Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more severe penalty on a
combination or series of the offenses enumerated in Section 1(d) of the law, than would otherwise be
imposed if the said offenses were taken separately. As Mr. Justice Mendoza lucidly pointed out in his
interpellation during the Oral Argument, the Anti-Plunder Law is merely employing a familiar
technique or feature of penal statutes, when it puts together what would otherwise be various
combinations of traditional offenses already proscribed by existing laws and attaching thereto higher or
more severe penalties than those prescribed for the same offenses taken separately.
Here, Mr. Justice Mendoza is referring to special complex crimes like rape with homicide or robbery
with homicide. During the Oral Argument, he asked whether petitioner’s counsel was in fact suggesting
that such special complex crimes -- a very important part of the Revised Penal Code and well-
entrenched in our penal system -- were violative of due process and the constitutional guarantees against
cruel and unusual punishment and should also be struck down. It goes without saying that the legislature
is well within its powers to provide higher penalties in view of the grave evils sought to be prevented by
RA 7080.
Innocent Acts Not
Penalized by RA 7080
Petitioner insists that innocent acts are in effect criminalized by RA 7080, because it allegedly penalizes
combinations or series of acts coming within the purview of the means or similar schemes enumerated
under items 4 and 5 of Section 1(d) of the law, which reads as follows:
"4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
forms of interest or participation including the promise of future employment in any business enterprise
or undertaking;
"5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests"
That such contention "deserves scant attention" is an understatement of the extreme sort. The claim of
"innocent acts" is possible only because items 4 and 5 have been taken completely out of context and
read in isolation instead of in relation to the other provisions of the same law, particularly Section 2. The
above-enumerated acts, means or similar schemes must be understood as having reference to or
connection with the acquisition of ill-gotten wealth by a public officer, by himself or in connivance with
others. Those acts are therefore not innocent acts. Neither are those prohibitions new or unfamiliar. The
proscribed acts under item 4, for instance, may to some extent be traced back to some of the prohibitions
in RA 3019 (the Anti-Graft Law). Section 3, the pertinent part of such law, reads as follows:
"SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
"(a) x x x x x x x x x
"(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the Government
and any other party wherein the public officer in his official capacity has to intervene under the law.
"(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit,
for himself or for another, from any person for whom the public officer, in any manner or capacity, has
secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the
help given or to be given, without prejudice to Section Thirteen of this Act.
"(d) Accepting or having any member of his family accept employment in a private enterprise which has
pending official business with him during the pendency thereof or within one year after its termination.
xxx xxx xxx
"(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction
in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited
by the Constitution or by any law from having any interest.
x x x x x x x x x."
On the other hand, the prohibited acts under item 5 have antecedents in the Revised Penal Code’s
interdiction against monopolies and combinations in restraint of trade. Clearly, the acts dealt with in
Items 4 and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that petitioner would have
us mistake them for.
RA 7080 Not Suffering from Overbreadth
In connection with the foregoing discussion, petitioner also charges that RA 7080 suffers from
"overbreadth." I believe petitioner misconstrues the concept. In the very recent case People v. Dela
Piedra,19 this Court held:
"A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms
affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally
worded statute, when construed to punish conduct which cannot be constitutionally punished, is
unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the
constitutionally permissible and the constitutionally impermissible applications of the statute.
"In Blo Umpar Adiong vs. Commission on Elections, for instance, we struck down as void for
overbreadth provisions prohibiting the posting of election propaganda in any place – including private
vehicles – other than in the common poster areas sanctioned by the COMELEC. We held that the
challenged provisions not only deprived the owner of the vehicle the use of his property but also
deprived the citizen of his right to free speech and information. The prohibition in Adiong, therefore,
was so broad that it covered even constitutionally guaranteed rights and, hence, void for overbreadth. In
the present case, however, appellant did not even specify what constitutionally protected freedoms are
embraced by the definition of ‘recruitment and placement’ that would render the same constitutionally
overbroad." (Italics supplied)
Similarly, in the instant case, petitioner has not identified which of his constitutionally protected
freedoms, if any, are allegedly being violated by the Anti-Plunder Law. As Mr. Justice Mendoza pointed
out to petitioner’s counsel during the Oral Argument, specious and even frivolous is the contention that
RA 7080 infringes on the constitutional right of petitioner by depriving him of his liberty pending trial
and by paving the way for his possible conviction because, following that line of argument, the entire
Revised Penal Code would be reckoned to be an infringement of constitutional rights.
"Pattern of Overt or Criminal Acts"
Petitioner, in line with his "void for vagueness" attack on RA 7080, faults the statute for failing to
provide a definition of the phrase a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy used in Section 4 of the law. This definition is crucial since, according to him,
such pattern is an essential element of the crime of plunder.
A plain reading of the law easily debunks this contention. First, contrary to petitioner’s suggestions,
such pattern of overt or criminal acts and so on is not and should not be deemed an essential or
substantive element of the crime of plunder. It is possible to give full force and effect to RA 7080
without applying Section 4 -- an accused can be charged and convicted under the Anti-Plunder Law
without resorting to that specific provision. After all, the heading and the text of Section 4, which I
quote below, leave no room for doubt that it is not substantive in nature:
"SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary
to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy." (Boldface
supplied)
As Mr. Chief Justice Davide very astutely pointed out during the Oral Argument, Section 2 in relation to
Section 1(d) deals with how the crime of plunder is committed. Hence, these two sections constitute the
substantive elements, whereas Section 4 deals with how the crime is proved and is therefore not
substantive, but merely procedural. It may be disregarded or discarded if found defective or deficient,
without impairing the rest of the statute.
Actually, the root of this problem may be traced to an observation made by Rep. Pablo Garcia, chair of
the House Committee on Justice, that RA 7080 had been patterned after the RICO Law.20 Petitioner
apparently seized on this statement and on the assertions in H.J. Inc. v. Northwestern Bell21 and other
cases that a pattern of racketeering is a "key requirement" in the RICO Law and a "necessary element"
of violations thereof. He then used these as the springboard for his vagueness attacks on RA 7080.
However, his reliance on the RICO law is essentially misplaced. Respondent Sandiganbayan correctly
held that the said legislation was essentially different from our Anti-Plunder Law, as it pointed out in its
Resolution of July 9, 2001, which I quote:
"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not define ‘pattern of overt or
criminal acts’ indicative of the overall scheme or conspiracy, thereby giving prosecutors and judges
unlimited discretion to determine the nature and extent of evidence that would show ‘pattern.’" (Motion
to Quash dated June 7, 2001, p. 13) The Court disagrees with this contention.
"x x x. According to the sponsors of the Anti-Plunder Law in Congress, the said law is similar to the
U.S. RICO (Deliberations of the House of Representatives Committee on Revision of Law and Justice,
May 24, 1990). However, the similarities extend only insofar as both laws penalize with severe penalties
the commission by a single accused or multiple accused of a pattern of overt or criminal acts as one
continuing crime. However, the legislative policies and objectives as well as the nature of the crimes
penalized respectively by the RICO and the Anti-Plunder Law are different." (Boldface and
underscoring supplied)
Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other conclusion than that the
crimes being penalized are completely different in nature and character, and that the legislative
objectives and policies involved are quite dissimilar.
In the case of RICO, legislative concern focused on the threat of continued racketeering activity, and
that was why pattern was imbued with such importance. "Congress was concerned in RICO with long-
term criminal conduct,"22 as the following quote indicates:
"RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a
plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or
pose a threat of continued criminal activity.23
xxx xxx xxx
"What a plaintiff or prosecutor must prove is continuity of racketeering activity, or its threat, simpliciter.
This may be done in a variety of ways, thus making it difficult to formulate in the abstract any general
test for continuity. We can, however, begin to delineate the requirement.
"‘Continuity’ is both a closed and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of repetition. x x x. It
is, in either case, centrally a temporal concept – and particularly so in the RICO context, where what
must be continuous, RICO’s predicate acts or offenses, and the relationship these predicates must bear
one to another, are distinct requirements. A party alleging a RICO violation may demonstrate continuity
over a closed period by proving a series of related predicates extending over a substantial period of time.
Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not
satisfy this requirement. Congress was concerned in RICO with long-term criminal conduct. Often a
RICO action will be brought before continuity can be established in this way. In such cases, liability
depends on whether the threat of continuity is demonstrated."24 (italics and underscoring supplied)
However, in RA 7080, precisely because of the sheer magnitude of the crimes in question and their
extremely deleterious effects on society, the legislative sentiment of great urgency – the necessity of
immediate deterrence of such crimes -- was incompatible with the RICO concept of "pattern" as
connoting either continuity over a substantial period of time or threat of continuity or repetition. The
legislative intent25 and policy of RA 7080 centered on imposing a heavy penalty in order to achieve a
strong, if not permanent, deterrent effect -- the sooner the better. The following Senate deliberations are
instructive:
"Senator Paterno. Mr. President, [I’m] not too clear yet on the reason for trying to define a crime of
plunder. Could I get some further clarification?
"Senator Tañada. Yes, Mr. President.
"Because of our experience in the former regime, we feel that there is a need for Congress to pass the
legislation which would cover a crime of this magnitude. While it is true, we already have the Anti-
Graft Law. But that does not directly deal with plunder. That covers only the corrupt practices of public
officials as well as their spouses and relatives within the civil degree, and the Anti-Graft law as
presently worded would not adequately or sufficiently address the problems that we experienced during
the past regime.
"Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of the bill?
"Senator Tañada. Yes.
"Senator Paterno. I envision that this bill or this kind of plunder would cover a discovered
interconnection of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when,
after the different acts are looked at, a scheme or conspiracy can be detected, such scheme or conspiracy
consummated by the different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such
that the scheme or conspiracy becomes a sin, as a large scheme to defraud the public or rob the public
treasury. It is parang robo and banda. It is considered as that. And, the bill seeks to define or says that
P100 million is that level at which ay talagang sobra na, dapat nang parusahan ng husto. Would it be a
correct interpretation or assessment of the intent of the bill?
"Senator Tañada. Yes, Mr. President. X x x x x.
"Senator Paterno. Would the Author not agree that this crime of plunder should be considered a heinous
crime, Mr. President?
"Senator Tañada. Yes, Mr. President. That is why, the penalty imposed under this bill is life
imprisonment, and permanent disqualification from holding public office.
"Senator Paterno. I would really ask, Mr. President, whether the Author would not consider that this is a
heinous crime which, for compelling reasons, namely to try and dampen the graft and corruption,
Congress should provide the death penalty for the crime of plunder.
"Senator Tañada. I personally would have some problem with that, Mr. President, because I am against
the restoration of death penalty in our criminal code. I would submit that to this Body.
"Senator Paterno. I respect the ministerial attitude and the respect for human life of the author, Mr.
President, but I just feel that graft and corruption is such a large problem in our society that, perhaps, it
is necessary for this Congress to express itself that this crime of plunder is a heinous crime which should
be levied the death penalty, Mr. President."26
Thus, it is clear and unarguable that "pattern," a key requirement or necessary element of RICO, is in no
wise an essential element of RA 7080.
This conclusion is further bolstered by the fact that pattern, in the RICO law context, is nowhere to be
found in the language of RA 7080 or in the deliberations of Congress. Indeed, the legislators were well
aware of the RICO Act; hence, they could have opted to adopt its concepts, terms and definitions and
installed pattern in the RICO sense as an essential element of the crime of plunder, if that were their
intent. At the very least, they would not have relegated the term pattern to a procedural provision such
as Section 4.
Second, to answer petitioner’s contention directly, the Anti-Plunder Law does in fact provide sufficient
basis to get at the meaning of the term pattern as used in Section 4. This meaning is brought out in the
disquisition of Respondent Sandiganbayan in its challenged Resolution, reproduced hereunder:
"The term ‘pattern’ x x x is sufficiently defined in the Anti-Plunder Law, specifically through Section 4
x x x, read in relation to Section 1(d) and Section 2 of the same law. Firstly, under Section 1(d) x x x, a
pattern consists of at least a combination or a series of overt or criminal acts enumerated in subsections
(1) to (6) of Section 1(d). Secondly, pursuant to Section 2 of the law, the ‘pattern’ of overt or criminal
acts is directed towards a common purpose or goal which is to enable a public officer to amass,
accumulate or acquire ill-gotten wealth; and [t]hirdly, there must either be an ‘overall unlawful scheme’
or ‘conspiracy’ to achieve said common goal. As commonly understood, the term ‘overall unlawful
scheme’ indicates ‘a general plan of action or method’ which the principal accused and public officer
and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there
is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or
criminal acts must form part of a conspiracy to attain said common goal.
"Parenthetically, it can be said that the existence of a pattern indicating an overall scheme or a single
conspiracy would serve as the link that will tie the overt or criminal acts into one continuing crime of
plunder. A conspiracy exists when two or more persons come into an agreement concerning the
commission of a felony and decide to commit it. (Art. 8, Revised Penal Code). To use an analogy made
by U.S. courts in connection with RICO violations, a pattern may be likened to a wheel with spokes (the
overt or criminal acts which may be committed by a single or multiple accused), meeting at a common
center (the acquisition or accumulation of ill-gotten wealth by a public officer) and with the rim (the
over-all unlawful scheme or conspiracy) of the wheel enclosing the spokes. In this case, the information
charges only one count of [the] crime of plunder, considering the prosecution’s allegation in the
amended information that the series or combination of overt or criminal acts charged form part of a
conspiracy among all the accused."27
Judiciary Empowered to Construe and Apply the Law
At all events, let me stress that the power to construe law is essentially judicial. To declare what the law
shall be is a legislative power, but to declare what the law is or has been is judicial.28 Statutes enacted
by Congress cannot be expected to spell out with mathematical precision how the law should be
interpreted under any and all given situations. The application of the law will depend on the facts and
circumstances as adduced by evidence which will then be considered, weighed and evaluated by the
courts. Indeed, it is the constitutionally mandated function of the courts to interpret, construe and apply
the law as would give flesh and blood to the true meaning of legislative enactments.
Moreover, a statute should be construed in the light of the objective to be achieved and the evil or
mischief to be suppressed and should be given such construction as will advance the purpose, suppress
the mischief or evil, and secure the benefits intended.29 A law is not a mere composition, but an end to
be achieved; and its general purpose is a more important aid to its meaning than any rule that grammar
may lay down.30 A construction should be rejected if it gives to the language used in a statute a
meaning that does not accomplish the purpose for which the statute was enacted and that tends to defeat
the ends that are sought to be attained by its enactment.31
As can be gleaned from the legislative deliberations, the Plunder Law was enacted to curb the
"despoliation of the National Treasury by some public officials who have held the levers of power" and
to penalize "this predatory act which has reached unprecedented heights and has been developed by its
practitioners to a high level of sophistication during the past dictatorial regime." Viewed broadly,
"plunder involves not just plain thievery but economic depredation which affects not just private parties
or personal interests but the nation as a whole." Invariably, plunder partakes of the nature of "a crime
against national interest which must be stopped, and if possible, stopped permanently."32
No Patent and Clear Conflict with Constitution
Against the foregoing backdrop, I believe petitioner’s heavy reliance on the void-for-vagueness concept
cannot prevail, considering that such concept, while mentioned in passing in Nazario and other cases,
has yet to find direct application in our jurisdiction. To this date, the Court has not declared any penal
law unconstitutional on the ground of ambiguity.33 On the other hand, the constitutionality of certain
penal statutes has been upheld in several cases, notwithstanding allegations of ambiguity in the
provisions of law. In Caram Resources Corp. v. Contreras34 and People v. Morato,35 the Court upheld
the validity of BP 22 (Bouncing Checks Law) and PD 1866 (Illegal Possession of Firearms),
respectively, despite constitutional challenges grounded on alleged ambiguity.
Similarly, the cases cited by petitioner involving U.S. federal court decisions relative to the RICO Law
did not at all arrive at a finding of unconstitutionality of the questioned statute. To repeat, reference to
these U.S. cases is utterly misplaced, considering the substantial differences in the nature, policies and
objectives between the RICO Law and the Anti-Plunder Law. Verily, "the RICO Law does not create a
new type of substantive crime since any acts which are punishable under the RICO Law also are
punishable under existing federal and state statutes."36 Moreover, the main purpose of the RICO Law is
"to seek the eradication of organized crime in the United States."37
On the other hand, the Plunder Law creates an entirely new crime that may consist of both (a) criminal
acts already punished by the Revised Penal Code or special laws and (b) acts that may not be punishable
by previously existing laws. Furthermore, unlike in the RICO Law, the motivation behind the enactment
of the Anti-Plunder Law is "the need to for a penal law that can adequately cope with the nature and
magnitude of the corruption of the previous regime"38 in accordance with the constitutional duty of the
State "to take positive and effective measures against graft and corruption."39
In sum, the law must be proven to be clearly and unequivocally repugnant to the Constitution before this
Court may declare its unconstitutionality. To strike down the law, there must be a clear showing that
what the fundamental law prohibits, the statute allows to be done.40 To justify the nullification of the
law, there must be a clear, unequivocal breach of the Constitution; not a doubtful, argumentative
implication.41 Of some terms in the law which are easily clarified by judicial construction, petitioner
has, at best, managed merely to point out alleged ambiguities. Far from establishing, by clear and
unmistakable terms, any patent and glaring conflict with the Constitution, the constitutional challenge to
the Anti-Plunder law must fail. For just as the accused is entitled to the presumption of innocence in the
absence of proof beyond reasonable doubt, so must a law be accorded the presumption of
constitutionality without the same requisite quantum of proof.
Second Issue:
Quantum of Evidence Not Lowered by RA 7080
I will now tackle petitioner’s impassioned asseverations that the Anti-Plunder Law violates the due
process clause and the constitutional presumption of innocence.
Section 4 of RA 7080 provides that, for purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. This is because it would be sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
Hence, petitioner now concludes that the Anti-Plunder Law "eliminates proof of each and every
component criminal act of plunder by the accused and limits itself to establishing just the pattern of
overt or criminal acts indicative of unlawful scheme or conspiracy." He thus claims that the statute
penalizes the accused on the basis of a proven scheme or conspiracy to commit plunder, without the
necessity of establishing beyond reasonable doubt each and every criminal act done by the accused.
From these premises, he precipitately, albeit inaccurately, concludes that RA 7080 has ipso facto
lowered the quantum of evidence required to secure a conviction under the challenged law. This is
clearly erroneous.
First, petitioner’s allegation as to the meaning and implications of Section 4 can hardly be taken
seriously, because it runs counter to certain basic common sense presumptions that apply to the process
of interpreting statutes: that in the absence of evidence to the contrary, it will be presumed that the
legislature intended to enact a valid, sensible and just law; that the law-making body intended right and
justice to prevail;42 and that the legislature aimed to impart to its enactments such meaning as would
render them operative and effective and prevent persons from eluding or defeating them.
Second, petitioner’s allegation is contradicted by the legislative Records that manifest the real intent
behind Section 4, as well as the true meaning and purpose of the provision therein. This intent is
carefully expressed by the words of Senate President Salonga:
"Senate Pres. Salonga. Is that, if there are let’s say 150 crimes all in all, criminal acts, whether bribery,
misappropriation, malversation, extortion, you need not prove all of those beyond reasonable doubt. If
you can prove by pattern, let’s say 10, but each must be proved beyond reasonable doubt, you do not
have to prove 150 crimes. That’s the meaning of this."43 (italics supplied)
All told, the above explanation is in consonance with what is often perceived to be the reality with
respect to the crime of plunder -- that "the actual extent of the crime may not, in its breadth and entirety,
be discovered, by reason of the ‘stealth and secrecy’ in which it is committed and the involvement of ‘so
many persons here and abroad and [the fact that it] touches so many states and territorial units.’"44
Hence, establishing a pattern indicative of the overall unlawful scheme becomes relevant and important.
Proof of Pattern Beyond Reasonable Doubt
Nevertheless, it should be emphasized that the indicative pattern must be proven beyond reasonable
doubt. To my mind, this means that the prosecution’s burden of proving the crime of plunder is, in
actuality, much greater than in an ordinary criminal case. The prosecution, in establishing a pattern of
overt or criminal acts, must necessarily show a combination or series of acts within the purview of
Section 1(d) of the law.
These acts which constitute the combination or series must still be proven beyond reasonable doubt. On
top of that, the prosecution must establish beyond reasonable doubt such pattern of overt or criminal
acts indicative of the overall scheme or conspiracy, as well as all the other elements thereof.
Thus, Respondent Sandiganbayan was correct in its ratiocination on that point:
"The accused misread the import and meaning of the above-quoted provision (Sec. 4). The latter did not
lower the quantum of evidence necessary to prove all the elements of plunder, which still remains proof
beyond reasonable doubt. For a clearer understanding of the import of Section 4 of the Anti-Plunder
Law, quoted hereunder are pertinent portions of the legislative deliberations on the subject:
‘MR. ALBANO. Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty
of the other acts enumerated in the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsification is less than P100 million, but the totality of
the crime committed is P100 million since there is malversation, bribery, falsification of public
document, coercion, theft?
‘MR. GARCIA (P). Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution proved only two. Now, what is required to be
proved beyond reasonable doubt is the element of the offense.
‘MR. ALBANO. I am aware of that, Mr. Speaker, but considering that in the crime of plunder the
totality of the amount is very important, I feel that such a series of overt (or) criminal acts has to be
taken singly. For instance, in the act of bribery, he was able to accumulate only ₱50,000 and in the
crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the
other acts as required under this bill through the interpretation on the rule of evidence, it is just one
single act, so how can we now convict him?
‘MR. GARCIA (P). With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and
other acts of corruption and in the enumeration the total amount would be P110 or P120 million, but
there are certain acts that could not be proved, so, we will sum up the amounts involved in these
transactions which were proved. Now, if the amount involved in these transactions, proved beyond
reasonable doubt, is P100 million, then there is a crime of plunder.’ (Deliberations of House of
Representatives on RA 7080, dated October 9, 1990).’
xxx xxx xxx
"According to the Explanatory Note of Senate Bill No. 733, the crime of plunder, which is a ‘term
chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of
high office for personal enrichment, committed through a series [or combination] of acts done not in the
public eye but in stealth or secrecy over a period of time, that may involve so many persons, here and
abroad, and which touch so many states and territorial units.’ For this reason, it would be unreasonable
to require the prosecution to prove all the overt and criminal acts committed by the accused as part of an
‘over-all unlawful scheme or conspiracy’ to amass ill-gotten wealth as long as all the elements of the
crime of plunder have been proven beyond reasonable doubt, such as, the combination or series of overt
or criminal acts committed by a public officer alone or in connivance with other persons to accumulate
ill-gotten wealth in the amount of at least Fifty Million Pesos.
"The statutory language does not evince an intent to do away with the constitutional presumption of
guilt nor to lower the quantum of proof needed to establish each and every element or ingredient of the
crime of plunder."45
In connection with the foregoing, I emphasize that there is no basis for petitioner’s concern that the
conspiracy to defraud, which is not punishable under the Revised Penal Code, may have been
criminalized under RA 7080. The Anti-Plunder Law treats conspiracy as merely a mode of incurring
criminal liability, but does not criminalize or penalize it per se.
In sum, it is clear that petitioner has misunderstood the import of Section 4. Apropos the foregoing, I
maintain that, between an interpretation that produces questionable or absurd results and one that gives
life to the law, the choice for this Court is too obvious to require much elucidation or debate.
Even granting arguendo that Section 4 of the Anti-Plunder law suffers from some constitutional
infirmity, the statute may nonetheless survive the challenge of constitutionality in its entirety.
Considering that this provision pertains only to a rule on evidence or to a procedural matter that does not
bear upon or form any part of the elements of the crime of plunder, the Court may declare the same
unconstitutional and strike it off the statute without necessarily affecting the essence of the legislative
enactment. For even without the assailed provision, the law can still stand as a valid penal statute
inasmuch as the elements of the crime, as well as the penalties therein, may still be clearly identified or
sufficiently derived from the remaining valid portions of the law. This finds greater significance when
one considers that Section 7 of the law provides for a separability clause declaring the validity, the
independence and the applicability of the other remaining provisions, should any other provision of the
law be held invalid or unconstitutional.
Third Issue:
The Constitutional Power of Congress to Enact Mala Prohibita Laws
Petitioner maintains that RA 7080 "eliminated the element of mens rea from crimes which are mala in
se and converted these crimes which are components of plunder into mala prohibita, thereby rendering it
easier to prove" since, allegedly, "the prosecution need not prove criminal intent."
This asseveration is anchored upon the postulate (a very erroneous one, as already discussed above) that
the Anti-Plunder Law exempts the prosecution from proving beyond reasonable doubt the component
acts constituting plunder, including the element of criminal intent. It thus concludes that RA 7080
violates the due process and the equal protection clauses of the Constitution.
While I simply cannot agree that the Anti-Plunder Law eliminated mens rea from the component crimes
of plunder, my bottom-line position still is: regardless of whether plunder is classified as mala prohibita
or in se, it is the prerogative of the legislature -- which is undeniably vested with the authority -- to
determine whether certain acts are criminal irrespective of the actual intent of the perpetrator.
The Power of the Legislature to Penalize Certain Acts
Jurisprudence dating as far back as United States v. Siy Cong Bieng46 has consistently recognized and
upheld "the power of the legislature, on grounds of public policy and compelled by necessity, ‘the great
master of things,’ to forbid in a limited class of cases the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer." Even earlier, in United States v. Go
Chico,47 Justice Moreland wrote that the legislature may enact criminal laws that penalize certain acts,
like the "discharge of a loaded gun," without regard for the criminal intent of the wrongdoer. In his
words:
"In the opinion of this Court it is not necessary that the appellant should have acted with criminal intent.
In many crimes, made such by statutory enactment, the intention of the person who commits the crime
is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be
substantially worthless. It would be impossible of execution. In many cases the act complained of is
itself that which produces the pernicious effect which the statute seeks to avoid. In those cases the
pernicious effect is produced with precisely the same force and result whether the intention of the
person performing the act is good or bad. The case at bar is a perfect illustration of this. The display of a
flag or emblem used, particularly within a recent period, by the enemies of the Government tends to
incite resistance to governmental functions and insurrection against governmental authority just as
effectively if made in the best of good faith as if made with the most corrupt intent. The display itself,
without the intervention of any other factor, is the evil. It is quite different from that large class of
crimes, made such by the common law or by statute, in which the injurious effect upon the public
depends upon the corrupt intention of the person perpetrating the act. If A discharges a loaded gun and
kills B, the interest which society has in the act depends, not upon B’s death, but upon the intention with
which A consummated the act. If the gun were discharged intentionally, with the purpose of
accomplishing the death of B, then society has been injured and its security violated; but if the gun was
discharged accidentally on the part of A, the society, strictly speaking, has no concern in the matter,
even though the death of B results. The reason for this is that A does not become a danger to society and
its institutions until he becomes a person with a corrupt mind. The mere discharge of the gun and the
death of B do not of themselves make him so. With those two facts must go the corrupt intent to kill. In
the case at bar, however, the evil to society and to the Government does not depend upon the state of
mind of the one who displays the banner, but upon the effect which that display has upon the public
mind. In the one case the public is affected by the intention of the actor; in the other by the act itself."
Without being facetious, may I say that, unlike the act of discharging a gun, the acts mentioned in
Section 1(d) -- bribery, conversion, fraudulent conveyance, unjust enrichment and the like -- cannot be
committed sans criminal intent. And thus, I finally arrive at a point of agreement with petitioner: that the
acts enumerated in Section 1(d) are by their nature mala in se, and most of them are in fact defined and
penalized as such by the Revised Penal Code. Having said that, I join the view that when we speak of
plunder, we are referring essentially to two or more instances of mala in se constituting one malum
prohibitum. Thus, there should be no difficulty if each of the predicate acts be proven beyond
reasonable doubt as mala in se, even if the defense of lack of intent be taken away as the solicitor
general has suggested.
In brief, the matter of classification is not really significant, contrary to what petitioner would have us
believe. The key, obviously, is whether the same burden of proof -- proof beyond reasonable doubt --
would apply.
Furthermore, I also concur in the opinion of the solicitor general: if it is conceded that the legislature
possesses the requisite power and authority to declare, by legal fiat, that acts not inherently criminal in
nature are punishable as offenses under special laws, then with more reason can it punish as offenses
under special laws those acts that are already inherently criminal. "This is so because the greater (power
to punish not inherently criminal acts) includes the lesser (power to punish inherently criminal acts). In
eo plus sit, semper inest et minus."48
Epilogue
"The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful or argumentative implication; a law shall not be
declared invalid unless the conflict with the Constitution is clear beyond a reasonable doubt. ‘The
presumption is always in favor of constitutionality x x x. To doubt is to sustain.’ x x x."49
A law should not be overturned on the basis of speculation or conjecture that it is unconstitutionally
vague. Everyone is duty-bound to adopt a reasonable interpretation that will uphold a statute, carry out
its purpose and render harmonious all its parts. Indeed, the constitutionality of a statute must be
sustained if, as in this case, a ground therefor can possibly be found. For the unbending teaching is that a
law cannot be declared invalid, unless the conflict with the Constitution is shown to be clearly beyond
reasonable doubt.
To lend color and vividness to the otherwise boring legalese that has been used to dissect RA 7080, the
parties to this case laced their arguments with interesting little stories. Thus, petitioner opened his Oral
Argument with an admittedly apocryphal account of a befuddled student of law who could not make
heads or tails of the meanings of series, combination and pattern.
On the other hand, the solicitor general compares petitioner with Hans Christian Andersen’s fabled
tailors who tried to fool the emperor into walking around naked by making him believe that anyone who
did not see the invisible garment, which they had supposedly sewn for him, was "too stupid and
incompetent to appreciate its quality." This is no doubt a parody of the alleged vagueness of RA 7080,
which is purportedly "invisible only to anyone who is too dull or dense to appreciate its quality."50
I do not begrudge petitioner (or his lawyers) for exhausting every known and knowable legal tactic to
exculpate himself from the clutches of the law. Neither do I blame the solicitor general, as the
Republic’s counsel, for belittling the attempt of petitioner to shortcut his difficult legal dilemmas.
However, this Court has a pressing legal duty to discharge: to render justice though the heavens may
fall.
By the Court’s Decision, petitioner is now given the occasion to face squarely and on the merits the
plunder charges hurled at him by the Ombudsman. He may now use this opportunity to show the courts
and the Filipino people that he is indeed innocent of the heinous crime of plunder – to do so, not by
resorting to mere legalisms, but by showing the sheer falsity of the wrongdoings attributed to him.
I think that, given his repeated claims of innocence, petitioner owes that opportunity to himself, his
family, and the teeming masses he claims to love. In short, the Court has rendered its judgment, and the
heavens have not fallen. Quite the contrary, petitioner is now accorded the opportunity to prove his clear 12 Record of the Senate, Vol. IV, No. 141, June 6, 1989, at p. 1399; quoted in the Comment, p. 16.
conscience and inculpability.
13 Petitioner’s Memorandum, p. 19.
WHEREFORE, I vote to DISMISS the Petition and to uphold the constitutionality of RA 7080.
14 Records of the Senate, Vol. IV, No. 140, June 5, 1989, at p. 1310.

Footnotes 15 See discussion of Senate Bill No. 733 on June 6, 1989.

1 Memorandum for Petitioner, p. 11. 16 Record of the Joint Conference Meeting – Committee on Justice and Committee on Constitutional
Amendments (S. No. 733 & H. No. 22752), May 7, 1991, pp. 40-43.
2 Ibid., p. 66.
17 The relevant portions of the Record are as follows:
3 Id., p.76.
"REP. ISIDRO. I am just intrigued again by our definition of plunder. We say, THROUGH A
4 Petitioner’s Memorandum, p. 16. COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION
ONE HEREOF. Now when we say combination, we actually mean to say, if there are too or more
5 285 SCRA 504, January 29, 1998, per Francisco, J. means, we mean to say that number one and two or number one and something else are included, how
about a series of the same act? Fore example, through misappropriation, conversation, misuse, will these
6 GR No. 135294, November 20, 2000, per Kapunan, J. be included also?

7 §1(d), RA 7080, as amended. THE CHAIRMAN (REP. GARCIA). Yeah, because we say series.

8 165 SCRA 186, August 31, 1988, per Sarmiento, J. REP. ISIDRO. Series.

9 "Construction is the means by which the Court clarifies the doubt to arrive at the true intent of the THE CHAIRMAN (REP. GARCIA). Yeah, we include series.
law." Agpalo, Statutory Construction, 1990 ed., p. 44; see also Caltex v. Palomar, 18 SCRA 247,
September 29, 1966. REP. ISIDRO. But we say we begin with a combination.

10 See People v. Purisima, 86 SCRA 542, November 20, 1978. THE CHAIRMAN (REP. GARCIA). Yes.

11 These deliberations are quoted in the Comment, pp. 14-15. REP. ISIDRO. When we say combination, it seem that –
THE CHAIRMAN (REP. GARCIA). Two.
. . . If there are a series of misappropriations?
REP. ISIDRO. Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration. THE CHAIRMAN. (REP. GARCIA P.) Yes.

THE CHAIRMAN (REP. GARCIA). No, no, not twice. REP. ISIDRO. So, these constitute illegal wealth.

REP. ISIDRO. Not twice? THE CHAIRMAN. (REP. GARCIA P.) Yes, yes.

THE CHAIRMAN (REP. GARCIA). Yes. Combination is not twice – but combination, two acts. REP. ISIDRO. Ill-gotten

REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different acts. It THE CHAIRMAN. (SEN. TAÑADA) Ill-gotten wealth.
can not be a repetition of the same act.
THE CHAIRMAN. (REP. GARCIA P.) Series. One after the other eh di . . .
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
THE CHAIRMAN. (SEN. TAÑADA), So, that would fall under the term ‘series’?
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN. (REP. GARCIA P.) Series, oo.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. Now, if it is combination, ano, two misappropriations . . .
REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or series, we
seem to say that two or more, ‘di ba? THE CHAIRMAN. (REP. GARCIA P.) It’s not, . . two misappropriations will not be combination.
Series.
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I said,
that’s a very good suggestion, because if it’s only one act, it may fall under ordinary crime. But we have REP. ISIDRO. So, it is not a combination?
here a combination or series, overt or criminal acts.
THA CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. I know what you are talking about. For example, through misappropriation, conversion,
misuse or malversation of public funds who raids the public treasury, now, for example, REP. ISIDRO. When you say ‘combination’, two different?
misappropriation, if there are a series of . . . . .
THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO.
THE CHAIRMAN. (REP. TAÑADA.) Two different.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
REP. ISIDRO. Two different acts.
THE CHAIRMAN. (REP. GARCIA P.) maraming salamat po.
THE CHAIRMAN. (REP. GARCIA P.) For example, ha . . .
The meeting was adjourned at 1:33 p.m."
REP. ISIDRO. Now series, meaning, repetition . . .
18 H. J., Inc. v. Northwestern Bell, (1999) 492 US 229, 106 L Ed 2d 195, 109 S Ct 2893, at p. 211:
THE CHAIRMAN. (SEN. TAÑADA) Yes. "One evident textual problem with the suggestion that predicates form a RICO pattern only if they are
indicative of an organized crime perpetrator – in either a traditional or functional sense – is that it would
REP. ISIDRO. With that . . . seem to require proof that the racketeering acts were the work of an association or group, rather than of
an individual acting alone. RICO’s language supplies no grounds to believe that Congress meant to
THE CHAIRMAN. (REP. GARCIA P.) Thank you. impose such a limit on the scope of the Act. A second indication from the text that Congress intended no
organized crime limitation is that no such restriction is explicitly stated. In those titles of OCCA (the
THE CHAIRMAN. (SEN. TAÑADA) So, it cold be a series of any of the acts mentioned in paragraphs Organized Crime Control Act of 1970) where Congress did intend to limit the new law’s application to
1, 3, 4, 5 of Section 2 (2), or . . 1 (d) rather, or combination of any of he acts mentioned in paragraph 1 the context of organized crime, it said so."
alone, or paragraph 2 alone or paragraph 3 or paragraph 4.
19 GR No. 121777, January 24, 2001, per Kapunan, J.
THE CHAIRMAN. (REP. GARCIA P.) I think combination maybe . . which one? Series?
20 The Racketeer-Influenced and Corrupt Organizations Act (RICO), 18 USC §§1961-1968 [18 USCS
THE CHAIRMAN. (SEN. TAÑADA) Series or combination. §§1961-1968] which is Title IX of the Organized Crime Control Act of 1970 (OCCA).

REP. ISIDRO. Which one, combination or series or series or combination? 21 Supra.

THE CHAIRMAN. (SEN. TAÑADA) Okay, Ngayon doon sa definition, ano, Section 2, definition, 22 Ibid., at p. 209.
doon sa portion ng . . . Saan iyon? As mentioned, as described . . .
23 Id., at p. 208.
THE CHAIRMAN. (SEN. TAÑADA) . . better than ‘mentioned’. Yes.
24 Id., at p. 209.
THE CHAIRMAN. (REP. GARCIA P.) Okay?
25 The relevant portion of the sponsorship speech of Senator Tañada reads as follows:
REP. ISIDRO. Very good.
"It cannot be seriously disputed that much of our economic woes and the nation’s anguish are directly
attributable to the despoliation of the National Treasury by some public officials who have held the
levers of power.
"It is sad to state, Mr. President, that there is presently no statute that either effectively discourages or
adequately penalizes this predatory act which reached unprecedented heights and which had been
developed by its practitioners to a high level of sophistication during the past dictatorial regime.
"For, while it is true that we have laws defining and penalizing graft and corruption in government and
providing for the forfeiture of unexplained wealth acquired by public officials, it has become
increasingly evident that these legislations x x x no longer suffice to deter massive looting of the
national wealth; otherwise, this country would not have been raided and despoiled by the powers that be
at that time.
"Indeed, there is a need to define plunder, and provide for its separate punishment as proposed in Senate
Bill No. 733; because, plunder involves not just plain thievery but economic depredation which affects
not just private parties or personal interest but the nation as a whole. And, therefore, Mr. President, it is
a crime against national interest which must be stopped and if possible stopped permanently."
26 Record of the Senate, Vol. IV, No. 140, June 5, 1989, at pp. 1314-1315.
27 On pp. 19-20 of the Resolution.
28 Foote v. Nickerson, 54 L.R.A. 554.
29 Intia Jr. v. Commission on Audit, 306 SCRA 593, April 30, 1999; Paat v. Court of Appeals, 266
SCRA 167, January 10, 1997.
30 Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999.
31 De Guia v. Commission on Elections, 208 SCRA 420, May 6, 1992.
32 Quoted portions are excerpts from Senator Tañada’s speech sponsoring Senate Bill No. 733, Records
of the Senate, June 5, 1989.
33 During the Oral Argument, petitioner contended that Yu Cong Eng v. Trinidad [271 US 500 (1926)]
declared the Bookkeeping Act unconstitutional for its alleged vagueness. This is incorrect. The reason
for its unconstitutionality was the violation of the equal protection clause. Likewise, Adiong v. Comelec
(207 SCRA 712, March 31, 1992) decreed as void a mere Comelec Resolution, not a statute. Finally,
Santiago v. Comelec (270 SCRA 106, March 19, 1997) declared a portion of RA 6735 unconstitutional
because of undue delegation of legislative powers, not because of vagueness.
34 237 SCRA 724, October 26, 1994.
35 224 SCRA 361, July 5, 1993.
36 Jeff Atkinson, "Racketeer Influenced and Corrupt Organization," 18 U.S.C. 1961-1968; "Broadest of
the Criminal Statutes," 69 Journal of Criminal Law and Criminology 1 (1978), p.1.
37 Ibid., at p. 2
38 Senator Angara’s vote explaining proposed Senate Bill No. 733; Records of the Senate, June 5, 1989.
39 Ibid.; see also Article II (Declaration of Principles and State Policies), Section 27 of the 1987
Constitution.
40 Morfe v. Mutuc, 22 SCRA 424, January 31, 1968; Salas v. Jarencio, 46 SCRA 734, August 30, 1972.
41 Padilla v. Court of Appeals, 269 SCRA 402, March 12, 1997; Francisco v. Permskul, 173 SCRA
324, May 12, 1989.
42 See Article 10, Civil Code.
43 Deliberations of the Committee on Constitutional Amendments and Revision of Laws, November 15, Republic of the Philippines
1988; cited in the Resolution of the Sandiganbayan (Third Division) dated July 9, 2001. SUPREME COURT
Manila
44 Comment, p. 29, citing the House deliberations on House Bill No. 22572, October 9, 1990.
EN BANC
45 Resolution of the Sandiganbayan (Third Division) dated July 9, 2001, pp. 28-30.
G.R. No. 192935 December 7, 2010
46 30 Phil. 577, March 31, 1915, per Carson, J; see also US v. Ah Chong, 15 Phil. 488, March 19, 1910
and Caram Resources Corp. v. Contreras, supra. LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
47 14 Phil. 128, September 15, 1909, per Moreland, J. THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

48 Respondent’s Memorandum, pp. 84-85. The solicitor general cites illegal recruitment as an example x - - - - - - - - - - - - - - - - - - - - - - -x
of a malum in se crime, which the law penalizes as malum prohibitum; that is, to punish it severely
without regard to the intent of the culprit. G.R. No. 193036

49 Virata v. Sandiganbayan, 202 SCRA 680, 698-699, October 15, 1991, per Davide, J. (now CJ). REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
50 Solicitor general’s Comment, pp. 1-2. vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are distributed
among the several departments.2 The Constitution is the basic and paramount law to which all other
laws must conform and to which all persons, including the highest officials of the land, must defer.3
Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and much more tailor itself to the whims
and caprices of government and the people who run it.4
For consideration before the Court are two consolidated cases5 both of which essentially assail the
validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for
being violative of the legislative power of Congress under Section 1, Article VI of the Constitution6 as
it usurps the constitutional authority of the legislature to create a public office and to appropriate funds
therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of
his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the
presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the
people’s trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections "kung
walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and
which will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporations, to produce documents,
books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules
of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals, accomplices or accessories, if any, when
in the course of its investigation the Commission finds that there is reasonable ground to believe that
they are liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel determined by
it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce
documents for inspection, when required, shall be subject to administrative disciplinary action. Any
private person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary
funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before
December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same
shall not affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere
ad hoc body formed under the Office of the President with the primary task to investigate reports of
graft and corruption committed by third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All
it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to
warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal,
civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been created as official,
transitory and non-judicial fact-finding bodies "to establish the facts and context of serious violations of
human rights or of international humanitarian law in a country’s past."9 They are usually established by
states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms
for transitional justice.
Truth commissions have been described as bodies that share the following characteristics: (1) they
examine only past events; (2) they investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish their work with the submission
of a report containing conclusions and recommendations; and (4) they are officially sanctioned,
authorized or empowered by the State.10 "Commission’s members are usually empowered to conduct
research, support victims, and propose policy recommendations to prevent recurrence of crimes.
Through their investigations, the commissions may aim to discover and learn more about past abuses, or
formally acknowledge them. They may aim to prepare the way for prosecutions and recommend
institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for
crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation
Commission of South Africa, the principal function of which was to heal the wounds of past violence
and to prevent future conflict by providing a cathartic experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than
on judicial retribution, while the marching order of the PTC is the identification and punishment of
perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his
inaugural speech: "To those who talk about reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have committed in the past, we have this to say: There can be
no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their
occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators
summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the
Office of the President to achieve economy, simplicity and efficiency does not include the power to
create an entirely new public office which was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general
international practice of four decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms part of the generally accepted
principles of international law which the Philippines is mandated to adhere to pursuant to the
Declaration of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress
the people that widespread poverty will altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of
an executive issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the Office of the Solicitor General (OSG),
essentially questioned the legal standing of petitioners and defended the assailed executive order with
the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the President’s
executive power and power of control necessarily include the inherent power to conduct investigations
to ensure that laws are faithfully executed and that, in any event, the Constitution, Revised
Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as amended by
P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize the President to create or
form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of the
Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and
not a quasi-judicial body and its functions do not duplicate, supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.
The OSG then points to the continued existence and validity of other executive orders and presidential
issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and
Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on
Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency
on Reform and Government Operations (PARGO) by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be
resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs
to ascertain whether the requisites for a valid exercise of its power of judicial review are present.
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.19
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not shown
that they have sustained or are in danger of sustaining any personal injury attributable to the creation of
the PTC. Not claiming to be the subject of the commission’s investigations, petitioners will not sustain
injury in its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to
assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the
Congress as a body to which they belong as members. This certainly justifies their resolve to take the
cudgels for Congress as an institution and present the complaints on the usurpation of their power and
rights as members of the legislature before the Court. As held in Philippine Constitution Association v.
Enriquez,21
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by
the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any
official action which, to their mind, infringes on their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation
of the PTC and the budget for its operations.23 It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds already appropriated by Congress.
Thus, the allocation and disbursement of funds for the commission will not entail congressional action
but will simply be an exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to
exercise judicial power and to wield the axe over presidential issuances in defense of the Constitution.
The case of David v. Arroyo24 explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a given question." In private
suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or
defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit." Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public
right" in assailing an allegedly illegal official action, does so as a representative of the general public.
He may be a person who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected
by the expenditure of public funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere
public right, however…the people are the real parties…It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury
cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act
with which he disagreed with, and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of an executive or legislative action, he must show
that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such that
he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la
Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.
[Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
the public interest so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,27 ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance28 laid down in CREBA v. ERC and
Meralco29 are non-existent in this case. The Court, however, finds reason in Biraogo’s assertion that the
petition covers matters of transcendental importance to justify the exercise of jurisdiction by the Court.
There are constitutional issues in the petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, they should be resolved for the
guidance of all.30 Undoubtedly, the Filipino people are more than interested to know the status of the
President’s first effort to bring about a promised change to the country. The Court takes cognizance of
the petition not due to overwhelming political undertones that clothe the issue in the eyes of the public,
but because the Court stands firm in its oath to perform its constitutional duty to settle legal
controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office
and not merely an adjunct body of the Office of the President.31 Thus, in order that the President may
create a public office he must be empowered by the Constitution, a statute or an authorization vested in
him by law. According to petitioner, such power cannot be presumed32 since there is no provision in
the Constitution or any specific law that authorizes the President to create a truth commission.33 He
adds that Section 31 of the Administrative Code of 1987, granting the President the continuing authority
to reorganize his office, cannot serve as basis for the creation of a truth commission considering the
aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and
"abolish."34 Insofar as it vests in the President the plenary power to reorganize the Office of the
President to the extent of creating a public office, Section 31 is inconsistent with the principle of
separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity
thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies
within the province of Congress and not with the executive branch of government. They maintain that
the delegated authority of the President to reorganize under Section 31 of the Revised Administrative
Code: 1) does not permit the President to create a public office, much less a truth commission; 2) is
limited to the reorganization of the administrative structure of the Office of the President; 3) is limited
to the restructuring of the internal organs of the Office of the President Proper, transfer of functions and
transfer of agencies; and 4) only to achieve simplicity, economy and efficiency.36 Such continuing
authority of the President to reorganize his office is limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the President of a
fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within the Office of the President
Proper has long been recognized.37 According to the OSG, the Executive, just like the other two
branches of government, possesses the inherent authority to create fact-finding committees to assist it in
the performance of its constitutionally mandated functions and in the exercise of its administrative
functions.38 This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section 17, both of Article VII of the
Constitution.39
It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his officials.40 The power of the
President to investigate is not limited to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other powers, such as his power to discipline
subordinates,41 his power for rule making, adjudication and licensing purposes42 and in order to be
informed on matters which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the President has the
power to reorganize the offices and agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the legislative power to reorganize
executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For
the OSG, the President may create the PTC in order to, among others, put a closure to the reported large
scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of
the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the President Proper by abolishing, consolidating
or merging units thereof or transferring functions from one unit to another; (2) transferring any function
under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any
agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the
provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. These point to situations where a body or an office is already
existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the
negative.
To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a
misplaced supposition, even in the plainest meaning attributable to the term "restructure"– an "alteration
of an existing structure." Evidently, the PTC was not part of the structure of the Office of the President
prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,46
But of course, the list of legal basis authorizing the President to reorganize any department or agency in
the executive branch does not have to end here. We must not lose sight of the very source of the power –
that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No.
292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of the President." For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions." It takes place when there is an alteration of the existing structure of government offices or
units therein, including the lines of control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is
subject to the President’s continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President’s power of control. Control is
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter.47 Clearly,
the power of control is entirely different from the power to create public offices. The former is inherent
in the Executive, while the latter finds basis from either a valid delegation from Congress, or his
inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to
create a public office?
According to the OSG, the power to create a truth commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by P.D. No. 1772.48 The said law granted the President the
continuing authority to reorganize the national government, including the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services
and activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation
to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive
Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a
public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation
to then President Marcos of the authority to reorganize the administrative structure of the national
government including the power to create offices and transfer appropriations pursuant to one of the
purposes of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in
the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim,
P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D.
1416 says "it was enacted to prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with
me that P.D. 1416 should not be considered effective anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National
Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as
amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed.
Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. The President’s power to conduct investigations to
aid him in ensuring the faithful execution of laws – in this case, fundamental laws on public
accountability and transparency – is inherent in the President’s powers as the Chief Executive. That the
authority of the President to conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such
authority.51 As explained in the landmark case of Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for
the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of law, e.g., his power over
the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited
only to the specific powers enumerated in the Constitution. In other words, executive power is more
than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated
above, the powers of the President are not limited to those specific powers under the Constitution.53
One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is
the power to create ad hoc committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department of Health v. Camposano,54 the
authority of the President to issue Administrative Order No. 298, creating an investigative committee to
look into the administrative charges filed against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and employees faithfully comply with
the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not
affected by the fact that the investigating team and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the
land. And if history is to be revisited, this was also the objective of the investigative bodies created in
the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the
Zenarosa Commission. There being no changes in the government structure, the Court is not inclined to
declare such executive power as non-existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for
the operation of a public office, suffice it to say that there will be no appropriation but only an allotment
or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of
the Executive of the power of Congress to appropriate funds. Further, there is no need to specify the
amount to be earmarked for the operation of the commission because, in the words of the Solicitor
General, "whatever funds the Congress has provided for the Office of the President will be the very
source of the funds for the commission."55 Moreover, since the amount that would be allocated to the
PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the government as a whole and sees to it that
all laws are enforced by the officials and employees of his department. He has the authority to directly
assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers
have been vested in the said body as it cannot adjudicate rights of persons who come before it. It has
been said that "Quasi-judicial powers involve the power to hear and determine questions of fact to
which the legislative policy is to apply and to decide in accordance with the standards laid down by law
itself in enforcing and administering the same law."58 In simpler terms, judicial discretion is involved in
the exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was delineated by the
Court in Cariño v. Commission on Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an official
inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in
the facts inquired into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an
inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or
matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the
parties to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as
judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial
powers: x x to award or grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and
the entry of a judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom
the facts of a controversy is not a judicial function. To be considered as such, the act of receiving
evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of
applying the law to the factual conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of review as may be provided by
law.60 Even respondents themselves admit that the commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode
their respective powers. If at all, the investigative function of the commission will complement those of
the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a
consequence of the overall task of the commission to conduct a fact-finding investigation."62 The actual
prosecution of suspected offenders, much less adjudication on the merits of the charges against them,63
is certainly not a function given to the commission. The phrase, "when in the course of its
investigation," under Section 2(g), highlights this fact and gives credence to a contrary interpretation
from that of the petitioners. The function of determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is shared
with other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,65 it
was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman
Act is not exclusive but is shared with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct
preliminary investigation on charges against public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians
to investigate complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal
cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in
the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of
government, the investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is categorically
out of the PTC’s sphere of functions. Its power to investigate is limited to obtaining facts so that it can
advise and guide the President in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of the
Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book
IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body
likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature.
And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to
reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will
instead be aided by the reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the President, the
Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the
1987 Constitution. Section 1 reads:
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 petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They
contend that it does not apply equally to all members of the same class such that the intent of singling
out the "previous administration" as its sole object makes the PTC an "adventure in partisan
hostility."66 Thus, in order to be accorded with validity, the commission must also cover reports of graft
and corruption in virtually all administrations previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases of graft and corruption must
encompass acts committed not only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of controversies and anomalies"68 were
reported to have been committed against the Filipino people. They assail the classification formulated
by the respondents as it does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for investigation by Executive Order No. 1
and other groups or persons who abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end corruption."69 In order to
attain constitutional permission, the petitioners advocate that the commission should deal with "graft
and grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal
force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous administration" as the
initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases
of large scale graft and corruption solely during the said administration.71 Assuming arguendo that the
commission would confine its proceedings to officials of the previous administration, the petitioners
argue that no offense is committed against the equal protection clause for "the segregation of the
transactions of public officers during the previous administration as possible subjects of investigation is
a valid classification based on substantial distinctions and is germane to the evils which the Executive
Order seeks to correct."72 To distinguish the Arroyo administration from past administrations, it recited
the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the
previous administration which have eroded public confidence in public institutions. There is, therefore,
an urgent call for the determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is warranted by the
reality that unlike with administrations long gone, the current administration will most likely bear the
immediate consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class for investigation lies in the
reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are
faithfully executed, are more easily established in the regime that immediately precede the current
administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations to provide
closure to issues that are pivotal to national life or even as a routine measure of due diligence and good
housekeeping by a nascent administration like the Presidential Commission on Good Government
(PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the
recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada under Administrative Order No,
53, to form an ad-hoc and independent citizens’ committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor, former President Fidel V. Ramos.73
[Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of right which
is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general
may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.74
"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed."75 It
"requires public bodies and institutions to treat similarly situated individuals in a similar manner."76
"The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the state’s duly constituted authorities."77 "In other words, the concept of
equal justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not just those of the legislature.79 Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial differences do not make for a
valid classification."82
For a classification to meet the requirements of constitutionality, it must include or embrace all persons
who naturally belong to the class.83 "The classification will be regarded as invalid if all the members of
the class are not similarly treated, both as to rights conferred and obligations imposed. It is not
necessary that the classification be made with absolute symmetry, in the sense that the members of the
class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as
long as this is achieved, all those covered by the classification are to be treated equally. The mere fact
that an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union85 and reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction
is based on a reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the
equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption during the previous
administration"87 only. The intent to single out the previous administration is plain, patent and
manifest. Mention of it has been made in at least three portions of the questioned executive order.
Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and
which will recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class,
that is, a class of past administrations. It is not a class of its own. Not to include past administrations
similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation
to the "previous administration" only. The reports of widespread corruption in the Arroyo administration
cannot be taken as basis for distinguishing said administration from earlier administrations which were
also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it, "Superficial differences do not make
for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the
intended investigation to the previous administration only. The OSG ventures to opine that "to include
other past administrations, at this point, may unnecessarily overburden the commission and lead it to
lose its effectiveness."89 The reason given is specious. It is without doubt irrelevant to the legitimate
and noble objective of the PTC to stamp out or "end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence or that the earlier reports involving
the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents
and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is
the PTC expected to conduct simultaneous investigations of previous administrations, given the body’s
limited time and resources. "The law does not require the impossible" (Lex non cogit ad
impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a century’s worth of graft cases. However, the fact remains that Executive Order
No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth,
must not exclude the other past administrations. The PTC must, at least, have the authority to investigate
all past administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by
public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be circumvented. 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 determined and all public authority administered.93 Laws that do not
conform to the Constitution should be stricken down for being unconstitutional.94 While the thrust of
the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To exclude the earlier
administrations in the guise of "substantial distinctions" would only confirm the petitioners’ lament that
the subject executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian,95 it
was written: "A rather limited number of such classifications have routinely been held or assumed to be
arbitrary; those include: race, national origin, gender, political activity or membership in a political
party, union activity or membership in a labor union, or more generally the exercise of first amendment
rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.96 "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions to the number included within a
class, but must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and circumstances which are
relative to the discriminatory legislation and which are indistinguishable from those of the members of
the class must be brought under the influence of the law and treated by it in the same way as are the
members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the
equal protection clause."98 "Legislation is not unconstitutional merely because it is not all-embracing
and does not include all the evils within its reach."99 It has been written that a regulation challenged
under the equal protection clause is not devoid of a rational predicate simply because it happens to be
incomplete.100 In several instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future legislations or regulations. These
cases refer to the "step by step" process.101 "With regard to equal protection claims, a legislature does
not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or
otherwise, to cover every evil that might conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least
three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even
mention any particular act, event or report to be focused on unlike the investigative commissions created
in the past. "The equal protection clause is violated by purposeful and intentional discrimination."103
To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during
the previous administration.104 The OSG points to Section 17 of Executive Order No. 1, which
provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope
of investigations of the PTC so as to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the future. Such expanded mandate
of the commission will still depend on the whim and caprice of the President. If he would decide not to
include them, the section would then be meaningless. This will only fortify the fears of the petitioners
that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of
the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,106
that the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal
protection clause." The decision, however, was devoid of any discussion on how such conclusory
statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court, in the
exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of
the legislature and the executive department, is exercising undue interference. Is the Highest Tribunal,
which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets
like the doctrine of separation of powers? Time and again, this issue has been addressed by the Court,
but it seems that the present political situation calls for it to once again explain the legal basis of its
action lest it continually be accused of being a hindrance to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested
with Judicial Power that "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 of abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the
other. Many times the Court has been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit:
"And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards
the betterment of the nation and its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble and worthy of admiration the
purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.108 The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency
must not be allowed to sap its strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the
present administration. Perhaps a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is the most interested in
knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must,
however, be emphasized that the search for the truth must be within constitutional bounds for "ours is
still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.
SO ORDERED.
JOSE CATRAL MENDOZA Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Associate Justice Decision had been reached in consultation before the case was assigned to the writer of the opinion of
the Court.
WE CONCUR:
RENATO C. CORONA
RENATO C. CORONA Chief Justice
Chief Justice

ANTONIO T. CARPIO Footnotes

Associate Justice CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice JOSE PORTUGAL PEREZ
Associate Justice
MARIA LOURDES P.A. SERENO
Associate Justice
1 Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
2 Bernas, The 1987 Constitution of the Republic of the Philippines; A Commentary, 1996 ed., p. xxxiv,
citing Miller, Lectures on the Constitution of the United States 64 (1893); 1 Schwartz, The Powers of
Government 1 (1963).
3 Cruz, Philippine Political law, 2002 ed. p. 12.
4 Id.
5 Resolution dated August 24, 2010 consolidating G.R. No. 192935 with G.R. No. 193036, rollo, pp.
87-88.
6 Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives, except to the extent reserved to the people by the provision
on initiative and referendum.
7 Biraogo Petition, p. 5, rollo, p. 7.

CERTIFICATION 8 Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12, 2002, citing F.R. Mechem, A Treatise
On The Law of Public Offices and Officers.
9 International Center for Transitional Justice, <http://www.ictj.org/en/tj/138.html> visited November
20, 2010.
10Freeman, The Truth Commission and Procedural Fairness, 2006 Ed., p. 12, citing Hayner,
UnspeakableTruths: Facing the Challenge of Truth Commissions.
11International Center for Transitional Justice, supra note 9.
12Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
13 Lagman Petition, pp. 50-52, rollo, pp. 58-60.
14 Rollo, pp. 111-216.
15 Otherwise known as the Administrative Code of 1987.
16 Granting Continuing Authority To The President Of The Philippines To Reorganize The National
Government.
17 Otherwise known as the General Appropriations Act of 2010.
18 OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy v. Sandiganbayan, G.R. Nos. 105965-70,
March 20, 2001, 354 SCRA 651, 660-661.
21 G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
22 Supra note 19, citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA
623, 631-632.
23 OSG Memorandum, p. 30, rollo, p. 349.
24 G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
25 Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement Agency,
G.R. No. 157870, November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of the Department of
Energy, 346 Phil 321 (1997); De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420,
422.
26 G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
27 84 Phil. 368, 373 (1949).
28 "(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality
of the government; and, (3) the lack of any other party with a more direct and specific interest in the
questions being raised."
29 G.R. No. 174697, July 8, 2010.
30 Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.

19 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and 31 Biraogo Memorandum, p. 7, rollo, p. 69.
Francisco v. House of Representatives, 460 Phil. 830, 842 (2003).
32 Id. at 6, rollo, p. 68.
20 OSG Memorandum, p. 29, rollo, p. 348.
33 Id. at 9, rollo, p. 71.
34 Id. at 10, rollo, p. 72. 49 G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.

35 Id. at 10-11, rollo pp. 72-73. 50 TSN, September 28, 2010, pp. 205-207.

36 Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo, pp. 270-271. 51 OSG Memorandum, p. 37, rollo, p.356.

37 OSG Memorandum, p. 32, rollo, p. 351. 52 G.R. 88211, September 15, 1989, 177 SCRA 688.

38 Id. at 33, rollo, p. 352. 53 Id. at 691.

39 OSG Consolidated Comment, p. 24, rollo, p. 144. 54 496 Phil. 886, 896-897 (2005).

40 OSG Memorandum, pp. 38-39, rollo, pp. 357-358. 55 Consolidated Comment, p. 48; rollo, p. 168.

41 Citing Department of Health v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 450.
42 Citing Evangelista v. Jarencio, No. L-27274, November 27, 1975, 68 SCRA 99, 104.
43 Citing Rodriguez v. Santos Diaz, No. L-19553, February 29, 1964, 10 SCRA 441, 445.
44 G.R. No. 166620, April 20, 2010.
56 Section 17. The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.
57 Ople v. Torres, 354 Phil. 948, 967 (1998).
58 Smart Communications, Inc. et al. v. National Telecommunications Commission, 456 Phil. 145, 156
(2003).

45 Consolidated Comment, p. 45, rollo, p. 165. 59 G.R. No. 96681, December 2, 1991, 204 SCRA 483.

46 G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also cited in Banda, supra. 60 Id. at 492.

47 The Veterans Federation of the Philippines v. Reyes, G. R. No. 155027, February 28, 2006, 483 61 TSN, September 28, 2010, pp. 39-44; and OSG Memorandum, p. 67, rollo, p. 339.
SCRA 526, 564; DOTC v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v. Silvosa, 97 Phil. 143
(1955). 62 OSG Consolidated Comment, p. 55, rollo, p. 175.

48 OSG Memorandum, p. 56, rollo, p. 375. 63 Id. at 56, rollo, p. 176.


64 Id.
65 G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
66 Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
67 Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp. 347-348.
68 Lagman Petition, p. 31, rollo, p. 39.
69 Id. at 28-29, rollo, pp. 36-37.
70 Id. at 29, rollo, p. 37.
71 OSG Memorandum, p. 88; rollo, p. 407.
72 OSG Consolidated Comment. p. 68, rollo, p. 188.
73 OSG Memorandum, pp. 90-93, rollo, pp. 409-412.
74 The Philippine Judges Association v. Hon. Pardo, G.R. No. 105371, November 11, 1993, 227 SCRA
703, 711.
75 Id. at 712, citing Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta, No. L-59431,
July 25, 1984, 130 SCRA 654; Association of Small Landowners in the Philippines v. Secretary of
Agrarian Reform, G.R. No. 7842, July 14, 1989, 175 SCRA 343, 375.
76 Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in Am. Jur, 2d, Vol. 16 (b), p. 302.
77 Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
78 Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
79 See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur. 2d, Vol. 16 (b), pp. 316-317.
80 See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d, Vol. 16 (b), p. 316.
81 Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
82 Cruz, Constitutional Law, 2003 ed., p. 128.
83 McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
84 Cruz, Constitutional Law, 2003 ed., pp. 135-136.
85 No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
86 Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF),
No. L-27113, November 19, 1974, 61 SCRA 93, 110-111; Anuncension v. National Labor Union, No.
L-26097, November 29, 1977, 80 SCRA 350, 372-373; Villegas v. Hiu Chiong Tsai Pao Ho, No. L-
29646, November 10, 1978, 86 SCRA 270, 275; Dumlao v. Comelec, No. L-52245, January 22, 1980,
95 SCRA 392, 404; Ceniza v. Comelec, No. L-52304, January 28, 1980, 95 SCRA 763, 772-773;
Himagan v. People, G.R. No. 113811, October 7, 1994, 237 SCRA 538; The Conference of Maritime
Manning Agencies, Inc. v. POEA, G.R. No. 114714, April 21, 1995, 243 SCRA 666, 677; JMM
Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA
319, 331–332; and Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278, 288-
289. See also Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (1957); Vera v. Cuevas, Nos. L-33693-
94, May 31, 1979, 90 SCRA 379, 388; and Tolentino v. Secretary of Finance, G.R. Nos. 115455,
115525, 115543, 115544, 115754, 115781, 115852, 115873, and 115931, August 25, 1994, 235 SCRA
630, 684.
87 7th Whereas clause, Executive Order No. 1.
88 Cruz, Constitutional Law, 2003 ed., p. 128. 101 See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state legislature may, consistently with the
Equal Protection Clause, address a problem one step at a time, or even select one phase of one field and
89 OSG, Memorandum, p. 89, rollo, p. 408. apply a remedy there, neglecting the others. [Jeffeson v. Hackney, 406 US 535].

90 6th Whereas clause, Executive Order No. 1 102 McDonald v. Board of Election Com’rs of Chicago, 394 US 802 cited in Am Jur 2d, Footnote No.
9.
91 Lee, Handbook of Legal Maxims, 2002 Ed., p.
103 Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
92 118 US 357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=118&invol=35
<accessed on December 4, 2010>. 104 OSG Consolidated Comment, p. 66, rollo, p.186.

93 Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 SCRA 614, pp. 631-632; Manila 105 Lagman Memorandum, p. 30; rollo, p. 118.
Prince Hotel vs. GSIS, 335 Phil. 82, 101 (1997).
106 G.R. No. 86926, October 15, 1991; 202 SCRA 680.
94 Id. at 632.
107 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
95 756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No. HCR 90-42; also
http://in.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19910130_0000002.NIN.htm/qx 108 Cruz, Philippine Political Law, 2002 ed., pp. 12-13.
<accessed December 5, 2010>
109 Id.
96 McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
110 Republic v. Southside Homeowners Association, G.R. No. 156951, September 22, 2006.
97 Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d, Vol. 16 (b), pp. 367-368 .

98 Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16 (b), p. 371. The Lawphil Project - Arellano Law Foundation

99 Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16 (b), p. 370. SEPARATE OPINION

100 Clements v. Fashing, 457 US 957. CORONA, C.J.:

Of Truth and Truth Commissions

The fundamental base upon which a truth commission is created is the right to the truth.1 While the
right to the truth is yet to be established as a right under customary law2 or as a general principle of
international law,3 it has nevertheless emerged as a "legal concept at the national, regional and
international levels, and relates to the obligation of the state to provide information to victims or to their
families or even society as a whole about the circumstances surrounding serious violations of human
rights."4
A truth commission has been generally defined5 as a "body set up to investigate a past history of
violations of human rights in a particular country ...,"6 and includes four elements:
... First, a truth commission focuses on the past. Second, a truth commission is not focused on a specific
event, but attempts to paint the overall picture of certain human rights abuses, or violations of
international humanitarian law, over a period of time. Third, a truth commission usually exists
temporarily and for a pre-defined period of time, ceasing to exist with the submission of a report of its
findings. Finally, a truth commission is always vested with some sort of authority, by way of its
sponsor, that allows it greater access to information, greater security or protection to dig into sensitive
issues, and a greater impact with its report.7
As reported by Amnesty International,8 there are at least 33 truth commissions established in 28
countries from 1974 to 2007 and this includes the Philippines, which created the Presidential Committee
on Human Rights (PCHR) in 1986 under the post-Marcos administration of Pres. Corazon C. Aquino.
The Philippine Experience
Notably, Pres. Corazon C. Aquino created not one but two truth commissions.9 Aside from the PCHR,
which was created to address human rights violations, the Presidential Commission on Good
Government or PCGG was also established. The PCGG was tasked with assisting the President in the
"recovery of all in-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates, whether located in the Philippines or abroad,
including the takeover or sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue advantage of their public
office and/or using their powers, authority, influence, connections or relationship," among others.10
Unlike the present embattled and controversial Truth Commission, however, the PCGG was created by
Pres. Corazon C. Aquino pursuant to her legislative powers under Executive Order No. 1,11 which in
turn, was sanctioned by Proclamation No. 3.12
And unlike the PCGG, the present Truth Commission suffers from both legal and constitutional
infirmities and must be struck down as unconstitutional.
Power To Create Public Offices: Inherently Legislative
The separation of powers is a fundamental principle in our system of government.13 This principle is
one of the cornerstones of our constitutional democracy and it cannot be eroded without endangering
our government.14 The 1987 Constitution divides governmental power into three co-equal branches: the
executive, the legislative and the judicial. It delineates the powers of the three branches: the legislature
is generally limited to the enactment of laws, the executive department to the enforcement of laws and
the judiciary to their interpretation and application to cases and controversies.15 Each branch is
independent and supreme within its own sphere and the encroachment by one branch on another is to be
avoided at all costs.
The power under scrutiny in this case is the creation of a public office. It is settled that, except for the
offices created by the Constitution, the creation of a public office is primarily a legislative function. The
legislature decides what offices are suitable, necessary or convenient for the administration of
government.16
The question is whether Congress, by law, has delegated to the Chief Executive this power to create a
public office.
In creating the Truth Commission, Executive Order No. 1 (E.O. No. 1) points to Section 31, Chapter 10,
Book III of E.O. No. 292 or the Administrative Code of 1987 as its legal basis:
Section 31. Continuing Authority of the President to Reorganize his Office. — The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating, or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies. (Emphasis supplied)
This provision pertains to the President’s continuing delegated power to reorganize the Office of the
President. The well-settled principle is that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally granted power of control over
executive offices and by virtue of his delegated legislative power to reorganize them under existing
statutes.17 Needless to state, such power must always be in accordance with the Constitution, relevant
laws and prevailing jurisprudence.18
In creating the Truth Commission, did the President merely exercise his continuing authority to
reorganize the executive department? No.
Considering that the President was exercising a delegated power, his actions should have conformed to
the standards set by the law, that is, that the reorganization be in the interest of "simplicity, economy
and efficiency." Were such objectives met? They were not. The Truth Commission clearly duplicates
and supplants the functions and powers of the Office of the Ombudsman and/or the Department of
Justice, as will be discussed in detail later. How can the creation of a new commission with the same
duplicative functions as those of already existing offices result in economy or a more efficient
bureaucracy?19 Such a creation becomes even more questionable considering that the 1987 Constitution
itself mandates the Ombudsman to investigate graft and corruption cases.20
The Truth Commission in the Light of The Equal Protection Clause
Equal protection is a fundamental right guaranteed by the Constitution. Section 1, Article III of the 1987
Constitution reads:
... nor shall any person be denied the equal protection of the laws.
It is a right afforded every man. The right to equal protection does not require a universal application of
the laws to all persons or things without distinction.21 It requires simply that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.22
In certain cases, however, as when things or persons are different in fact or circumstance, they may be
treated in law differently.23 In Victoriano vs. Elizalde Rope Workers Union,24 the Court declared:
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction
is based on a reasonable foundation or rational basis and is not palpably arbitrary.
Thus, for a classification to be valid it must pass the test of reasonableness,25 which requires that:
(1) it be based on substantial distinctions;
(2) it must be germane to the purpose of the law;
(3) it must not be limited to present conditions; and

(4) it must apply equally to all members of the same class.
All four requisites must be complied with for the classification to be valid and constitutional.
The constitutionality of E. O. No. 1 is being attacked on the ground that it violates the equal protection
clause.
Petitioners argue that E.O. No. 1 violates the equal protection clause as it deliberately vests the Truth
Commission with jurisdiction and authority to solely target officials and employees of the Arroyo
Administration.26 Moreover, they claim that there is no substantial distinction of graft reportedly
committed under the Arroyo administration and graft committed under previous administrations to
warrant the creation of a Truth Commission which will investigate for prosecution officials and
employees of the past administration.27
Respondents, on the other hand, argue that the creation of the Truth Commission does not violate the
equal protection clause. According to them, while E.O. No. 1 names the previous administration as the
initial subject of the investigation, it does not confine itself to cases of graft and corruption committed
solely during the past administration. Section 17 of E.O. No. 1 clearly speaks of the President’s power
to expand its coverage to previous administrations. Moreover, respondents argue that the segregation of
the transactions of public officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions and is germane to the evils which
the executive order seeks to correct.28
On its face, E.O. No. 1 clearly singles out the previous administration as the Truth Commission’s sole
subject of investigation.
Section 1. Creation of a Commission – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION", which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any during the
previous administration; and thereafter recommend the appropriate action to be taken to ensure that the
full measure of justice shall be served without fear or favor.
Section 2. Powers and Functions. – The Commission, which shall have the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to
conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in
Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any during the previous administration and thereafter submit its
findings and recommendations to the President, Congress and the Ombudsman. x x x" (Emphasis
supplied)
Notwithstanding Section 17, which provides:
If and when in the judgment of the President there is a need to expand the mandate of the Commission
as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption
during the prior administration, such mandate may be so extended accordingly by way of supplemental
Executive Order." (Emphasis supplied),
such expanded mandate of the Truth Commission will still depend on the whim and caprice of the
President. If the President decides not to expand the coverage of the investigation, then the Truth
Commission’s sole directive is the investigation of officials and employees of the Arroyo
administration.
Given the indubitably clear mandate of E.O. No. 1, does the identification of the Arroyo administration
as the subject of the Truth Commission’s investigation pass the jurisprudential test of reasonableness?
Stated differently, does the mandate of E.O. No. 1 violate the equal protection clause of the
Constitution? Yes.
I rule in favor of petitioners.
(1) No Substantial Distinction –
There is no substantial distinction between the corruption which occurred during the past administration
and the corruption of the administrations prior to it. Allegations of graft and corruption in the
government are unfortunately prevalent regardless of who the President happens to be. Respondents’
claim of widespread systemic corruption is not unique only to the past administration.
(2) Not Germane to the Purpose of the Law –
The purpose of E.O. No. 1 (to put an end to corruption in the government) is stated clearly in the
preamble of the aforesaid order:
WHEREAS, the President’s battle-cry during his campaign for the Presidency in the last elections "kung
walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds; xxx
In the light of the unmistakable purpose of E.O. No. 1, the classification of the past regime as separate
from the past administrations is not germane to the purpose of the law. Corruption did not occur only in
the past administration. To stamp out corruption, we must go beyond the façade of each administration
and investigate all public officials and employees alleged to have committed graft in any previous
administration.
(3) E.O. No. 1 does Not Apply to Future Conditions –
As correctly pointed out by petitioners, the classification does not even refer to present conditions, much
more to future conditions vis-avis the commission of graft and corruption. It is limited to a particular
past administration and not to all past administrations.29
We go back to the text of the executive order in question.
xxx
Whereas, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases if graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
xxx
Section 1. Creating of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION", which shall primarily seek and find the
truth on, and toward this end investigate reports of graft and corruption, x x x if any, during the previous
administration; xxx
Section 2. Power and Functions. Powers and Functions. – The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption x x x, if any, during the previous administration and thereafter submit its findings and
recommendations to the President, Congress and the Ombudsman. x x x
The above-quoted provisions show that the sole subject of the investigation will be public officers and
employees of the previous administration only, that is, until such time if and when the President decides
to expand the Truth Commission’s mandate to include other administrations (if he does so at all).
(4) E.O. No. 1 Does Not Apply to the Same Class –
Lastly, E.O. No. 1 does not apply to all of those belonging to the same class for it only applies to the
public officers and employees of the past administration. It excludes from its purview the graft and the
grafters of administrations prior to the last one. Graft is not exclusive to the previous presidency alone,
hence there is no justification to limit the scope of the mandate only to the previous administration.
Fact-Finding or Investigation?
The nature of the powers and functions allocated by the President to the Truth Commission by virtue of
E.O. No. 1 is investigatory,30 with the purposes of determining probable cause of the commission of
"graft and corruption under pertinent applicable laws" and referring such finding and evidence to the
proper authorities for prosecution.31
The respondents pass off these powers and functions as merely fact-finding, short of investigatory. I do
not think so. Sugar-coating the description of the Truth Commission’s processes and functions so as to
make it "sound harmless" falls short of constitutional requirements. It has in its hands the vast arsenal of
the government to intimidate, harass and humiliate its perceived political enemies outside the lawful
prosecutorial avenues provided by law in the Ombudsman or the Department of Justice.
The scope of the investigatory powers and functions assigned by the President to the Truth Commission
encompasses all "public officers and employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration."32
There is no doubt in my mind that what the President granted the Truth Commission is the authority to
conduct preliminary investigation of complaints of graft and corruption against his immediate
predecessor and her associates.
The respondents see nothing wrong with that. They believe that, pursuant to his power of control and
general supervision under Article VII of the Constitution,33 the President can create an ad-hoc
committee like the Truth Commission to investigate graft and corruption cases. And the President can
endow it with authority parallel to that of the Ombudsman to conduct preliminary investigations. Citing
Ombudsman v. Galicia34 the power of the Ombudsman to conduct preliminary investigations is not
exclusive but shared with other similarly authorized government agencies.
I take a different view. The operative word is "authorized".
Indeed, the power of control and supervision of the President includes the power to discipline which in
turn implies the power to investigate.35 No Congress or Court can derogate from that power36 but the
Constitution itself may set certain limits.37 And the Constitution has in fact carved out the preliminary
investigatory aspect of the control power and allocated the same to the following:
(a) to Congress over presidential appointees who are impeachable officers (Article XI, Sections 2 and
3);
(b) to the Supreme Court over members of the courts and the personnel thereof (Article VIII, Section 6);
and
(c) to the Ombudsman over any other public official, employee, office or agency (Article XI, Section 13
(1)).
However, even as the Constitution has granted to the Ombudsman the power to investigate other public
officials and employees, such power is not absolute and exclusive. Congress has the power to further
define the powers of the Ombudsman and, impliedly, to authorize other offices to conduct such
investigation over their respective officials and personnel.38
The Constitution has vested in Congress alone the power to grant to any office concurrent jurisdiction
with the Ombudsman to conduct preliminary investigation of cases of graft and corruption.
In a myriad of cases, this Court has recognized the concurrent jurisdiction of other bodies vis-à-vis the
Ombudsman to conduct preliminary investigation of complaints of graft and corruption as authorized by
law, meaning, for any other person or agency to be able to conduct such investigations, there must be a
law authorizing him or it to do so.
In Ombudsman v. Galicia (cited in the ponencia) as well as Ombudsman v. Estandarte,39 the Court
recognized the concurrent jurisdiction of the Division School Superintendent vis-à-vis the Ombudsman
to conduct preliminary investigation of complaints of graft and corruption committed by public school
teachers. Such concurrent jurisdiction of the Division School Superintendent was granted by law,
specifically RA 4670 or the Magna Carta for Public School Teachers.40
Likewise, in Ombudsman v. Medrano41 the Court held that by virtue of RA 4670 the Department of
Education Investigating Committee has concurrent jurisdiction with the Ombudsman to conduct a
preliminary investigation of complaints against public school teachers.
Even the Sangguniang Panlungsod has concurrent jurisdiction with the Ombudsman to look into
complaints against the punong barangay.42 Such concurrent authority is found in RA 7160 or the Local
Government Code.
The Department of Justice is another agency with jurisdiction concurrent with the Ombudsman to
conduct preliminary investigation of public officials and employees.43 Its concurrent jurisdiction is
based on the 1987 Administrative Code.
Certainly, there is a law, the Administrative Code, which authorized the Office of the President to
exercise jurisdiction concurrent with the Ombudsman to conduct preliminary investigation of graft and
corruption cases. However, the scope and focus of its preliminary investigation are restricted. Under the
principle that the power to appoint includes the power to remove, each President has had his or her own
version of a presidential committee to investigate graft and corruption, the last being President Gloria
Macapagal Arroyo’s Presidential Anti-Graft Commission (PAGC) under E.O. No. 268. The PAGC
exercised concurrent authority with the Ombudsman to investigate complaints of graft and corruption
against presidential appointees who are not impeachable officers and non-presidential appointees in
conspiracy with the latter. It is in this light that DOH v. Camposano, et al.44 as cited in the ponencia
should be understood. At that time, the PCAGC (now defunct) had no investigatory power over non-
presidential appointees; hence the President created an ad-hoc committee to investigate both the
principal respondent who was a presidential appointee and her co-conspirators who were non-
presidential appointees. The PAGC (now also defunct), however, was authorized to investigate both
presidential appointees and non-presidential appointees who were in conspiracy with each other.
However, although pursuant to his power of control the President may supplant and directly exercise the
investigatory functions of departments and agencies within the executive department,45 his power of
control under the Constitution and the Administrative Code is confined only to the executive
department.46 Without any law authorizing him, the President cannot legally create a committee to
extend his investigatory reach across the boundaries of the executive department to "public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration" without setting apart those who are still in the executive department from those
who are not. Only the Ombudsman has the investigatory jurisdiction over them under Article XI,
Section 13. There is no law granting to the President the authority to create a committee with concurrent
investigatory jurisdiction of this nature.
The President acted in violation of the Constitution and without authority of law when he created a
Truth Commission under E.O. No. 1 to exercise concurrent jurisdiction with the Ombudsman to conduct
the preliminary investigation of complaints of graft and corruption against public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration.
Investigation or Quasi-Adjudication?
Respondents argue that the Truth Commission is merely an investigative and fact-finding body tasked to
gather facts, draw conclusions therefrom and recommend the appropriate actions or measures to be
taken. Petitioners, however, argue that the Truth Commission is vested with quasi-judicial powers.
Offices with such awesome powers cannot be legally created by the President through mere executive
orders.
Petitioners are correct.
The definition of investigation was extensively discussed in Cariño v. Commission on Human Rights:47
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official
inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in
the facts inquired into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an
inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or
matters."48 (Italics in the original)
The exercise of quasi-judicial power goes beyond mere investigation and fact-finding. Quasi-judicial
power has been defined as
… the power of the administrative agency to adjudicate the rights of persons before it. It is the power to
hear and determine questions of fact to which the legislative policy is to apply and to decide in
accordance with the standards laid down by the law itself in enforcing and administering the same law.
The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act
which is essentially of an executive or administrative nature, where the power to act in such manner is
incidental to or reasonably necessary for the performance of the executive or administrative duty
entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are
required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw
conclusions from them as basis for their official action and exercise of discretion in a judicial nature.49
(Emphasis supplied)
Despite respondents’ denial that the Truth Commission is infused with quasi-judicial powers, it is patent
from the provisions of E.O. No. 1 itself that such powers are indeed vested in the Truth Commission,
particularly in Section 2, paragraphs (b) and (g):
b) Collect, receive, review, and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, …
xxx
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals, accomplices or accessories, if any, when
in the course of its investigation the Commission finds that there is reasonable ground to believe they
are liable for graft and corruption under pertinent applicable laws;
xxx
The powers to "evaluate evidence" and "find reasonable ground to believe that someone is liable for
graft and corruption" are not merely fact-finding or investigatory. These are quasi-judicial in nature
because they actually go into the weighing of evidence, drawing up of legal conclusions from them as
basis for their official action and the exercise of discretion of a judicial or quasi-judicial nature.
The evaluation of the sufficiency of the evidence is a quasi-judicial/judicial function. It involves an
assessment of the evidence which is an exercise of judicial discretion. We have defined discretion
as the ability to make decisions which represent a responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed.50
It is the "the act or the liberty to decide, according to the principles of justice and one’s ideas of what is
right and proper under the circumstances, without willfulness or favor."51
Likewise, the power to establish if there is reasonable ground to believe that certain persons are liable
for graft and corruption under pertinent applicable laws is quasi-judicial in nature because it is akin to
the discretion exercised by a prosecutor in the determination of probable cause during a preliminary
investigation. It involves a judicial (or quasi-judicial) appraisal of the facts for the purpose of
determining if a violation has in fact been committed.
Although such a preliminary investigation is not a trial and is not intended to usurp the function of the
trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts
concerning the commission of the crime with the end in view of determining whether or not an
information may be prepared against the accused. Indeed, a preliminary investigation is in effect a
realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be
adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an
acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding.
An act becomes judicial when there is opportunity to be heard and for, the production and weighing of
evidence, and a decision is rendered thereon.
The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a
preliminary investigation is no less than that of a municipal judge or even a regional trial court judge.
While the investigating officer, strictly speaking is not a "judge," by the nature of his functions he is and
must be considered to be a quasi judicial officer.52
Hence, the Truth Commission is vested with quasi-judicial discretion in the discharge of its functions.
As a mere creation of the executive and without a law granting it the power to investigate person and
agencies outside the executive department, the Truth Commission can only perform administrative
functions, not quasi-judicial functions. "Administrative agencies are not considered courts; they are
neither part of the judicial system nor are they deemed judicial tribunals."53
Executive Order No. 1 and the Philippine Truth Commission of 2010, being contrary to the
Constitution, should be nullified.
I therefore vote that the petitions be GRANTED.
RENATO C. CORONA
Chief Justice
Footnotes
1 Promotion and Protection of Human Rights (Study on the Right to the Truth): Report of the Office of
the United Nations High Commissioner for Human Rights, United Nations Economic and Social
Council (E/CN.4/2006/91), 8 February 2006.
2 See Yasmin Naqvi, The Right to the Truth in International Law: Fact or Fiction?, International
Review of the Red Cross (2006), 88:862:254-268.
3 Ibid., 268.
4 Ibid., 245.
5 But see Eric Brahm, What is a Truth Commission and Why Does it Matter?, Peace and Conflict
Review (Spring 2009), 3:2:1-14, which proposes that "Mark Freeman’s (2006) typology of human rights
investigations as the definition offering the most analytical clarity and the strongest potential to move
the field forward." Freeman [Truth Commissions and Procedural Fairness (2006), New York:
Cambridge University Press; E.H.R.L.R., 2008, 2, 294-297] defines a truth commission as an "ad hoc,
autonomous, and victim-centered commission of inquiry set up in and authorized by a state for the
primary purposes of (1) investigating and reporting on the principal causes and consequences of broad
and relatively recent patterns of severe violence or repression that occurred in the state during
determinate periods of abusive rule or conflict, and (2) making recommendations for their redress and
future prevention."
6 Priscilla B. Hayner, Fifteen Truth Commissions – 1974 to 1994: A Comparative Study, Human Rights
Quarterly (Nov. 1994), 16:4:600.
7 Ibid., 604.
8 http://www.amnesty.org/en/library/asset/POL30/009/2007/en/7988f852-d38a-11dd-a329-
2f46302a8cc6/ pol300092007en.html, viewed on 9 November 2010.
9 Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic
Crimes?, The International Journal of Transitional Justice, Vol. 2, 2008, 322.
10 Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good Government, G.R.
No. 75885, May 27, 1987, 150 SCRA 181, 202.
11 Promulgated on February 28, 1986, creating the Presidential Commission on Good Government.
12 Promulgated on March 25, 1986, promulgating the Provisional Constitution (also known as the 26 Par. 69, Lagman, et al’s Petition
Freedom Constitution). Article II, Section 1 thereof stated that the President shall continue to exercise
legislative power until a legislature is elected and convened under a new constitution x x x. 27 Par. 67, Lagman, et al’s Petition

13 Angara v. Electoral Commission, 68 Phil. 139, 156 (1936). 28 OSG Memorandum, pp. 88-90.

14 Secretary of Justice v. Lantion, G.R. No. 139465, 17 October 2000. 29 Par. 73, Lagman, et al’s Petition

15 Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, 29 August 2007. 30 Section 2. xxx b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any agency, official or
16 Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152 (1995) citing AM JUR 2d on Public employee of the Executive Branch, including government-owned or controlled corporations, to produce
Officers and Employees. documents, books, records and other papers xxx.

17 Banda v. Ermita, G.R. No. 166620, April 20, 2010. 31 Section 2. xxx g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on
18 Ibid. corruption of public officers and employees and their private sector co-principals, accomplices or
accessories, if any, when in the course of its investigation the Commission finds that there is reasonable
19 Buklod ng Kawaniang EIIB v. Sec. Zamora, 413 Phil. 281, 295. ground to believe that they are liable for graft and corruption under pertinent applicable laws xxx.

20 Office of the Ombudsman v. Samaniego, G.R. No. 175573, 11 September 2008. 32 Id.

21 Chamber of Real Estate and Builders’ Associations, Inc. v. Executive Secretary Alberto Romulo 33 Section 17. The President shall have control of all the executive departments, bureaus, and offices.
(G.R. No. 160756, 2010) He shall ensure that the laws be faithfully executed.

22 Quinto v. Comelec (G.R. No. 189698, 2009) 34 568 SCRA 327 (2008)

23 Abakada Guro v. Hon. Cesar V. Purisima (G.R. No. 166715, 2008) 35 Joson v. Executive Secretary, et al., G.R. No. 131255, May 20, 1998; Villaluz v. Zaldivar, et al. (En
Banc), G.R. No. L-22754, December 31, 1965.
24 59 SCRA 54, 1974.
36 Rufino v. Endriga, G.R. No. 139554, July 21, 2006.
25 League of Cities of the Philippines v. COMELEC (G.R. No. 176951; G.R. No. 177499; 2008; G.R.
No. 178056, 2008 37 Ang-Angco v. Hon. Natalio Castillo, et al., G.R. No. L-17169, November 30, 1963.
38 Article XI states:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxx
(8) x x x exercise such other powers or perform such functions or duties as may be provided by law.
39 G.R. No. 168670, April 13, 2007, 521 SCRA 155.
40 See also Emin v. De Leon (G.R. No. 139794, February 27, 2002, 378 SCRA 143) on the concurrent
authority of the Civil Service Commission and the DEPED Investigating Committee under RA 4670.
See further Puse v. Santos-Puse (G.R. No. 183678, March 15, 2010) where the Court held that the
concurrent jurisdiction of the DEPED and CSC to cause preliminary investigation is also shared by the
Board of Professional Teachers under RA 7836 or Philippine Teachers Professionalization Act of 1994.
41 G.R. No. 177580, October 17, 2008.
42 See Ombudsman v. Rolson Rodriguez, G.R. No. 172700, July 23, 2010 citing Laxina, Sr.
v.Ombudsman, G.R. No. 153155, 30 September 2005, 471 SCRA 542.
43 Sevilla Decin v. SPO1 Melzasar Tayco, et al., G.R. No. 149991, February 14, 2007; Honasan II v.
The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747,
April 13, 2004.
44 G.R. No. 157684. April 27, 2005.
45 See Review Center Association of the Philippines v. Executive Secretary Eduardo Ermita, et al.,
G.R. No. 180046 , April 2, 2009; Bermudez v. Executive Secretary, G.R. No. 131429, August 4, 1999.
46 KMU v. Director General, et al., G.R. No. 167798, April 19, 2006.
47 G.R. No. 96681, 2 December 1991, 204 SCRA 483.
48 Id., pp. 495-496.
49 Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30 November 2006, 509 SCRA 332, 369-370.
50 Manotoc v. Court of Appeals, G.R. No. 130974, 16 August 2006.
51 Philippine Long Distance Telephone Co. Inc. v. Manggagawa ng Komunikasyon sa Pilipinas, G.R.
No. 162783, 14 July 2005.
52 Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, 2 October 2,
1990. This is an En Banc case that had been reiterated in two other En Banc cases, namely, Olivas v.
Office of the Ombudsman (G.R. No. 102420, 20 December 1994) and Uy v. Office of the Ombudsman
(G.R. Nos. 156399-400, 27 June 2008, 556 SCRA 73). Thus it cannot be said to have been overturned
by Balangauan v. Court f Appeals, Special Nineteenth Division, Cebu City (G.R. No. 174350, 13
August 2008, 562 SCRA 184) a decision of the Court through the Third Division wherein the Court
declared: "It must be remembered that a preliminary investigation is not a quasi-judicial proceeding….
(p. 203)"
53 Meralco v. Energy Regulatory Board, G.R. No. 145399, 17 March 2006.
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
BRION, J.:
I concur, through this Separate Opinion, with the conclusion that the Executive Order No. 1 (EO 1 or
EO) creating the Truth Commission is fatally defective and thus should be struck down.

I base my conclusion:
(1) On due process grounds;
(2) On the unconstitutional impact of the EO on the established legal framework of the criminal justice
system;
(3) On the violation of the rule on separation of powers;
(4) On the violations of the personal rights of the investigated persons and their constitutional right to a
fair trial;1 and
(5) On the violation of the equal protection clause.
Two inter-related features of the EO primarily contribute to the resulting violations. The first is the use
of the title Truth Commission, which, as used in the EO, is fraught with hidden and prejudicial
implications beyond the seemingly simple truth that purportedly characterizes the Commission. The
second relates to the truth-telling function of the Truth Commission under the terms of the EO.
Together, these features radiate outwards with prejudicial effects, resulting in the above violations.
The full disclosure of the truth about irregular and criminal government activities, particularly about
graft and corruption, is a very worthy ideal that those in government must fully support; the ideal cannot
be disputed, sidetracked or much less denied. It is a matter that the Constitution itself is deeply
concerned about as shown by Article XI on Accountability of Public Officers.
This concern, however, co-exists with many others and is not the be-all and end-all of the Charter. The
means and manner of addressing this constitutional concern, for example, rate very highly in the
hierarchy of constitutional values, particularly their effect on the structure and operations of government
and the rights of third parties.
The working of government is based on a well-laid and purposeful constitutional plan, essentially based
on the doctrine of separation of powers, that can only be altered by the ultimate sovereign – the people.
Short of this sovereign action, not one of the departments of government – neither the Executive, nor the
Legislature, and nor the Judiciary – can modify this constitutional plan, whether directly or indirectly.
Concern for the individual is another overriding constitutional value. Significantly, the Constitution
does not distinguish between the guilty and the innocent in its coverage and grant of rights and
guarantees. In fact, it has very specific guarantees for all accused based on its general concern for every
Filipino’s life, liberty, security and property. The Constituion, too, ensures that persons of the same
class, whether natural or juridical, are treated equally, and that the government does not discriminate in
its actions.
All these, this Court must zealously guard. We in the Court cannot ever allow a disturbance of the
equilibrium of the constitutional structure in favour of one or the other branch, especially in favour of
the Judiciary. Much less can we pre-judge any potential accused, even in the name of truth-telling,
retribution, national healing or social justice. The justice that the Constitution envisions is largely
expressed and embodied in the Constitution itself and this concept of justice, more than anything else,
the Judiciary must serve and satisfy. In doing this, the Judiciary must stand as a neutral and apolitical
judge and cannot be an advocate other than for the primacy of the Constitution.
These, in brief, reflect the underlying reasons for the cited grounds for the invalidity of E.O. 1.
I. THE EO AND THE "TRUTH" COMMISSION.
A. THE TERMS OF THE EO AND THE RULES;
NATURE OF THE "TRUTH COMMISSION"
The Philippine Truth Commission (Truth Commission or Commission) is a body "created" by the
President of the Philippines by way of an Executive Order (EO 1 or EO) entitled "Executive Order No.
1, Creating the Philippine Truth Commission of 2010." The Truth Commission’s express and avowed
purpose is – 2
"to seek and find the truth on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed
by public officials and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration, and thereafter recommend the appropriate action to be
taken thereon to ensure that the full measure of justice shall be served without fear or favor."
Under these terms and by the Solicitor General’s admissions and representations, the Truth Commission
has three basic functions, namely, fact-finding,3 policy recommendation,4 and truth-telling,5 all with
respect to reported massive graft and corruption committed by officials and employees of the previous
administration.
The EO defines the Truth Commission as an "independent collegial body" with a Chairman and four
members;6 and provides for the staff,7 facilities8 and budgetary support9 it can rely on, all of which are
sourced from or coursed through the Office of the President. It specifically empowers the Truth
Commission to "collect, receive, review and evaluate evidence."10 It defines how the Commission will
operate and how its proceedings will be conducted.11 Notably, its hearings shall be open to the public,
except only when they are held in executive sessions for reasons of national security, public safety or
when demanded by witnesses’ personal security concerns.12 It is tasked to submit its findings and
recommendations on graft and corruption to the President, Congress and the Ombudsman,13 and submit
special interim reports and a comprehensive final report which shall be published.14 Witnesses or
resource persons are given the right to counsel,15 as well as security protection to be provided by
government police agencies.16
The Rules of Procedure of the Philippine Truth Commission of 2010 (Rules), promulgated pursuant to
Section 2(j) of EO 1, further flesh out the operations of the Commission.17 Section 4 assures that "due
process shall at all times be observed in the application of the Rules." It provides for formal complaints
that may be filed before it,18 and that after evaluation, the parties who appear responsible under the
complaints shall be provided copies of the complaints and supporting documents, and be required to
comment on or file counter-affidavits within ten (10) days.19 The Rules declare that the Commission is
not bound by the technical rules of evidence,20 reiterate the protection afforded to witnesses provided
under the EO,21 and confirm that hearings shall be open to the public.22
B. THE TITLE "TRUTH COMMISSION"
AND DUE PROCESS
Both the parties’ memoranda dwelt on the origins and nature of the term "Truth Commission," with both
using their reading of the term’s history and usages to support their respective positions.23 What comes
across in available literature is that no nation has a lock on the meaning of the term; there is only a long
line of practice that attaches the term to a body established upon restoration of democracy after a period
of massive violence and repression.24 The term truth commission has been specifically used as a title
for the body investigating the human rights violations25 that attended past violence and repression,26
and in some instances for a body working for reconciliation in society.27
The traditional circumstances that give rise to the use of a truth commission along the lines of
established international practice are not present in the Philippine setting. The Philippines has a new
democratically-elected President, whose election has been fully accepted without protest by all
presidential candidates and by the people. A peaceful transition of administration took place, where
Congress harmoniously convened, with the past President now sitting as a member of the House of
Representatives. While charges of human rights violations may have been lodged against the
government during the past administration, these charges are not those addressed by EO 1.28 Rather,
EO 1 focuses entirely on graft and corruption. Significantly, reconciliation does not appear to be a goal
– either in the EO, in the pleadings filed by the parties, or in the oral arguments – thus, removing a
justification for any massive information campaign aimed at healing divisions that may exist in the
nation.
As a matter of law, that a body called a Truth Commission is tasked to investigate past instances of graft
and corruption would not per se be an irregularity that should cause its invalidation. The use of the word
"truth" is not ordinarily a ground for objection. Not even the Constitution itself defines or tells us what
truth is; the Charter, fleshed out by the statutes, can only outline the process of arriving at the truth.
After the Constitution and the statutes, however, have laid down the prescribed procedure, then that
procedure must be observed in securing the truth. Any deviation could be a violation depending on the
attendant circumstances.
No international law can also prevent a sovereign country from using the term as the title of a body
tasked to investigate graft and corruption affecting its citizens within its borders. At the same time,
international law cannot be invoked as a source of legitimacy for the use of the title when it is not based
on the internationally-recognized conditions of its use.
No local law likewise specifically prohibits or regulates the use of the term "truth commission." Apart
from the procedural "deviation" above adverted to, what may render the use of the term legally
objectionable is the standard of reason, applicable to all government actions, as applied to the attendant
circumstances surrounding the use in the EO of the title Truth Commission.29 The use of this standard
is unavoidable since the title Truth Commission is used in a public instrument that defines the
Commission’s functions and affects both the government and private parties.30 The Commission’s
work affects third parties as it is specifically tasked to investigate and prosecute officials and employees
of the previous administration. This line of work effectively relates it to the processes of the criminal
justice system.
In the simplest due process terms, the EO – as a governmental action – must have a reasonable objective
and must use equally reasonable means to achieve this objective.31 When the EO – viewed from the
prism of its title and its truth-telling function – is considered a means of achieving the objective of
fighting graft and corruption, it would be invalid if it unreasonably or oppressively affects parties,
whether they be government or private.
C. THE COMMISSION’S FUNCTIONS
As worded, the EO establishes the Commission as an investigative body tasked to act on cases of graft
and corruption committed during the previous administration. This is an area that the law has assigned
to the primary jurisdiction of the Ombudsman to investigate and prosecute.32 If probable cause exists,
these same cases fall under the exclusive jurisdiction of the Sandiganbayan33 whose decisions are
appealable to the Supreme Court.34
Whether a Commission can engage in fact-finding, whose input can aid the President in policy
formulation, is not a disputed issue. What is actively disputed is whether the Truth Commission shall
undertake its tasks in a purely investigative fact-finding capacity or in the exercise of quasi-judicial
powers. This issue impacts on the level of fairness that should be observed (and the standard of reason
that should apply), and thus carries due process implications. Equally important to the issue of due
process are the function of truth-telling and the effects of this function when considered with the title
"Truth Commission."
C.1. The Truth-Telling Function
The Solicitor General fully verbalized the truth-telling function when he declared that it is a means of
letting the people know the truth in the allegations of graft and corruption against the past
administration.35 The Solicitor General, in response to the questions of J. Sereno, said:
Justice Sereno: . . .I go now to the truth-telling part of the commission. In other words, can you describe
to us the truth telling and truth seeking part of the commission?
Solicitor General Cadiz: Your Honor, of course our people will find closure if aside from the truth
finding of facts, those who have been found by the body to have committed graft and corruption will be
prosecuted by the Ombudsman. It is. . .Your Honor, there is a crime committed and therefore
punishment must be meted out. However, Your Honor, truth-telling part, the mere narration of facts, the
telling of the truth, will likewise I think to a certain degree, satisfy our people.
Justice Sereno: Are you saying therefore the truth-telling, that the narration like the other narrations in
the past commissions has an independent value apart from the recommendations to indict which
particular persons?
Solicitor General Cadiz: I agree Your Honor. And it is certainly, as the EO says, it’s a Truth
Commission the narration of facts by the members of the Commission, I think, will be appreciated by
the people independent of the indictment that is expected likewise. [Emphasis supplied.]
His statement is justified by the EO’s mandate to seek and find the truth under Section 1; the opening to
the public of the hearing and proceedings under Section 6; and the publication of the Commission’s
final report under Section 15 of the EO.36
C.2. Legal Implications of Truth-Telling
Truth-telling, as its name connotes, does not exist solely for the sake of "truth"; the "telling" side is
equally important as the Solicitor General impressed upon this Court during the oral arguments.37 Thus,
to achieve its objectives, truth-telling needs an audience to whom the truth shall be told.38 This
requirement opens up the reality that EO 1 really speaks in two forums.
The first forum, as expressly provided in the EO, is composed of the persons to be investigated and the
recipients of the Commission’s reports who are expected to act on these reports, specifically, the
President (who needs investigative and policy formulation assistance); Congress (who may use the
Commission’s information for its own legislative purposes); and the Ombudsman as the investigative
and prosecutory constitutional office39 to which, under the EO, the Commission must forward its
interim and final reports. The Commission’s hearings and proceedings are important venues for this
forum, as this is where the investigated persons can defend themselves against the accusations made.
The element of policy formulation, on the other hand, is present through the Commission’s interim and
final reports from which appropriate remedial policy measures can be distilled. The element of truth-
telling – in the sense of communicating to the public the developments as they happen and through the
interim and final reports – exists but only plays a secondary role, as the public is not a direct participant
in this forum.
The second forum – not as explicitly defined as the first but which must implicitly and necessarily be
there – is that shared with the general public as the audience to whom the President (through the EO and
the Truth Commission) wishes to tell the story of the allegedly massive graft and corruption during the
previous administration. This is the distinct domain of truth-telling as the Solicitor General himself
impliedly admits in his quoted arguments.40 Section 6 of the EO fully supports truth-telling, as it opens
up the Commission’s hearings or proceedings to the public (and hence, to the mass media), subject only
to an executive session "where matters of national security or public safety are involved or when the
personal safety of the witness warrants the holding of such executive or closed-door session hearing."
These separate forums are not distinguished merely for purposes of academic study; they are there,
plainly from the terms of the EO, and carry clear distinctions from which separate legal consequences
arise.
Both forums involve third parties, either as persons to be investigated or as part of the general public (in
whose behalf criminal complaints are nominally brought and who are the recipients of the
Commission’s truth-telling communications) so that, at the very least, standards of fairness must be
observed.41 In the investigative function, the standard depends on whether the tasks performed are
purely investigative or are quasi-judicial, but this distinction is not very relevant to the discussions of
this opinion. In truth-telling, on the other hand, the level of the required fairness would depend on the
objective of this function and the level of finality attained with respect to this objective.42
In the first forum, no element of finality characterizes the Commission’s reports since – from the
perspective of the EO’s express purposes of prosecution and policy formulation – they are merely
recommendatory and are submitted for the President’s, Congress’ and the Ombudsman’s consideration.
Both the President and Congress may reject the reports for purposes of their respective policy
formulation activities; the Ombudsman may likewise theoretically and nominally reject them (although
with possibly disastrous results as discussed below).
In the second forum, a very high element of finality exists as the information communicated through the
hearings, proceedings and the reports are directly "told" the people as the "truth" of the graft and
corruption that transpired during the previous administration. In other words, the Commission’s outputs
are already the end products, with the people as the direct consumers. In this sense, the element of
fairness that must exist in the second forum must approximate the rights of an accused in a criminal trial
as the consequence of truth-telling is no less than a final "conviction" before the bar of public opinion
based on the "truth" the Commission "finds." Thus, if the Commission is to observe the rights of due
process as Rule 1, Section 4 of its Rules guarantees, then the right of investigated persons to cross-
examine witnesses against them,43 the right against self-incrimination,44 and all the rights attendant to
a fair trial must be observed. The rights of persons under investigation under Section 12 of the Bill of
Rights of the Constitution45 must likewise be respected.
II. THE EO’S LEGAL INFIRMITIES.
A. THE TITLE "TRUTH COMMISSION" + THE TRUTH-TELLING FUNCTION = VIOLATION OF
DUE PROCESS

A.1. The Impact of the Commission’s "Truth"
The first problem of the EO is its use of the title "Truth Commission" and its objective of truth-telling;
these assume that what the Truth Commission speaks of is the "truth" because of its title and of its truth-
telling function; thus, anything other than what the Commission reports would either be a distortion of
the truth, or may even be an "untruth."
This problem surfaced during the oral arguments on queries about the effect of the title "Truth
Commission" on the authority of the duly constituted tribunals that may thereafter rule on the matters
that the Commission shall report on.46 Since the Commission’s report will constitute the "truth," any
subsequent contrary finding by the Ombudsman47 would necessarily be suspect as an "untruth;" it is up
then to the Ombudsman to convince the public that its findings are true.
To appreciate the extent of this problem, it must be considered that the hearings or proceedings, where
charges of graft and corruption shall be aired, shall be open to the public. The Commission’s report shall
likewise be published.48 These features cannot but mean full media coverage.
Based on common and usual Philippine experience with its very active media exemplified by the recent
taking of Chinese and Canadian hostages at the Luneta, a full opening to the media of the Commission’s
hearings, proceedings and reports means a veritable media feast that, in the case of the Truth
Commission, shall occur on small but detailed daily doses, from the naming of all the persons under
investigation all the way up to the Commission’s final report. By the time the Commission report is
issued, or even before then, the public shall have been saturated with the details of the charges made
through the publicly-aired written and testimonial submissions of witnesses, variously viewed from the
vantage points of straight reporting, three-minute TV news clips, or the slants and personal views of
media opinion writers and extended TV coverage. All these are highlighted as the power of the media
and the environment that it creates can never be underestimated. Hearing the same "truth" on radio and
television and seeing it in print often enough can affect the way of thinking and the perception, even of
those who are determined, in their conscious minds, to avoid bias.49
As expected, this is a view that those supporting the validity of the EO either dismisses as an argument
that merely relies on a replaceable name,50 or with more general argument couched under the question
"Who Fears the Truth."51
The dismissive argument, to be sure, would have been meritorious if only the name Truth Commission
had not been supported by the Commission’s truth-telling function; or, if the name "Truth Commission"
were a uniquely Filipino appellation that does not carry an established meaning under international
practice and usage. Even if it were to be claimed that the EO’s use of the name is unique because the
Philippines’ version of the Truth Commission addresses past graft and corruption and not violence and
human rights violations as in other countries, the name Truth Commission, however, cannot simply be
dissociated from its international usage. The term connotes abuses of untold proportions in the past by a
repressive undemocratic regime – a connotation that may be applicable to the allegations of graft and
corruption, but is incongruous when it did not arise from a seriously troubled regime; even the present
administration cannot dispute that it assumed office in a peaceful transition of power after relatively
clean and peaceful elections.
The "Who Fears the Truth?" arguments, on the other hand, completely miss the point of this Separate
Opinion. This Opinion does not dispute that past graft and corruption must investigated and fully
exposed; any statement to the contrary in the Dissent are unfounded rhetoric written solely for its own
partisan audience. What this Opinion clearly posits as legally objectionable is the government’s manner
of "telling;" any such action by government must be made according to the norms and limits of the
Constitution to which all departments of government – including the Executive – are subject.
Specifically, the Executive cannot be left unchecked when its methods grossly violate the Constitution.
This matter is discussed in full below.
A.2. Truth-telling and the Ombudsman
To return to the scenario described above, it is this scenario that will confront the Ombudsman when the
Commission’s report is submitted to it. At that point, there would have been a full and extended public
debate heavily influenced by the Commission’s "truthful" conclusions. Thus, when and if the
Ombudsman finds the evidence from the report unconvincing or below the level that probable cause
requires, it stands to incur the public ire, as the public shall have by then been fully informed of the
"facts" and the "truth" in the Commission’s report that the Ombudsman shall appear to have
disregarded.
This consequence does not seem to be a serious concern for the framers and defenders of the EO, as the
Commission’s truth-telling function by then would have been exercised and fully served. In the Solicitor
General’s words "Your Honor, there is crime committed and therefore punishment must be meted out.
However, your Honor, truth-telling part, the mere narration of facts, the telling of the truth, will likewise
I think to a certain degree satisfy our people." On the question of whether truth-telling has an
independent value separate from the indictment - he said: "And it is certainly, as the EO says, it’s a
Truth Commission the narration of facts by the members of the Commission, I think, will be appreciated
by the people independent of the indictment that is expected likewise."52
In other words, faced with the findings of the Commission, the Ombudsman who enters a contrary
ruling effectively carries the burden of proving that its findings, not those of the Commission, are
correct. To say the least, this resulting reversal of roles is legally strange since the Ombudsman is the
body officially established and designated by the Constitution to investigate graft and other crimes
committed by public officers, while the Commission is a mere "creation" of the Executive Order. The
Ombudsman, too, by statutory mandate has primary jurisdiction over the investigation and prosecution
of graft and corruption, while the Commission’s role is merely recommendatory.
Thus, what the EO patently expresses as a primary role for the Commission is negated in actual
application by the title Truth Commission and its truth-telling function. Expressed in terms of the
forums the EO spawned, the EO’s principal intent to use the Truth Commission as a second forum
instrument is unmasked; the first forum – the officially sanctioned forum for the prosecution of crimes –
becomes merely a convenient cover for the second forum.
A.3. Truth-telling and the Courts
The effects of truth-telling could go beyond those that affect the Ombudsman. If the Ombudsman
concurs with the Commission and brings the recommended graft and corruption charges before the
Sandiganbayan – a constitutionally-established court – this court itself would be subject to the same
truth-telling challenge if it decides to acquit the accused. For that matter, even this Court, will be
perceived to have sided with an "untruth" when and if it goes against the Commission’s report. Thus,
the authority, independence, and even the integrity of these constitutional bodies – the Ombudsman, the
Sandiganbayan, and the Supreme Court – would have been effectively compromised, to the prejudice of
the justice system. All these, of course, begin with the premise that the Truth Commission has the
mandate to find the "truth," as it name implies, and has a truth-telling function that it can fully exercise
through its own efforts and through the media.
A.4. Truth-telling and the Public.
A.4.1. Priming and Other Prejudicial Effects.
At this point in the political development of the nation, the public is already a very critical audience who
can examine announced results and can form its own conclusions about the culpability or innocence of
the investigated persons, irrespective of what conclusions investigative commissions may arrive at. This
is a reality that cannot be doubted as the public has been exposed in the past to these investigative
commissions.
The present Truth Commission operating under the terms of the EO, however, introduces a new twist
that the public and the country have not met before. For the first time, a Truth Commission, tasked with
a truth-telling function, shall speak on the "truth" of what acts of graft and corruption were actually
committed and who the guilty parties are. This official communication from a governmental body – the
Truth Commission – whose express mandate is to find and "tell the truth" cannot but make a difference
in the public perception.
At the very least, the widely-publicized conclusions of the Truth Commission shall serve as a
mechanism for "priming" 53 the public, even the Ombudsman and the courts, to the Commission’s way
of thinking. Pervasively repeated as an official government pronouncement, the Commission’s influence
can go beyond the level of priming and can affect the public environment as well as the thinking of both
the decision makers in the criminal justice system and the public in general.
Otherwise stated, the Commission’s publicly announced conclusions cannot but assume the appearance
of truth once they penetrate and effectively color the public’s perception, through repetition without
significant contradiction as official government findings. These conclusions thus graduate to the level of
"truth" in self-fulfillment of the name the Commission bears; the subtle manipulation of the
Commission’s name and functions, fades in the background or simply becomes explainable incidents
that cannot defeat the accepted truth.
A very interesting related material about the effect of core beliefs on the decision-making of judges is
the point raised by United States Supreme Court Associate Justice Benjamin N. Cardozo54 in his book
The Nature of the Judicial Process55 where he said:
… Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace, not
even the faintest, among the judges whom I have known. But every day there is borne in on me a new
conviction of the inescapable relation between the truth without us and the truth within. The spirit of the
age, as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth
or education or occupation or fellowship have given us place. No effort or revolution of the mind will
overthrow utterly and at all times the empire of the subconscious loyalties. "Our beliefs and opinions,"
says James Harvey Robinson, "like our standards of conduct come to us insensibly as products of our
companionship with our fellow men, not as results of our personal experience and the inferences we
individually make from our own observations. We are constantly misled by our extraordinary faculty of
‘rationalizing’ – that is, of devising plausible arguments by accepting what is imposed upon us by the
traditions of the group to which we belong. We are abjectly credulous by nature, and instinctively accept
the verdict of the group. We are suggestible not merely when under the spell of an excited mob, or a
fervent revival, but we are ever and always listening to the still small voice of the herd, and are ever
ready to defend and justify the instructions and warnings, and accept them as the mature results of our
own reasoning." This was written, not of judges specially, but of men and women of all classes.56
[Emphasis supplied]
Thus, Justice Cardozo accepted that "subconscious loyalties" to the "spirit" of the group, i.e., the core
beliefs within, is a major factor that affects the decision of a judge. In the context of EO 1, that "spirit"
or core belief is what a generally trusted government’s57 repeated invocation of "truth" apparently aims
to reach. This goal assumes significance given the Solicitor General’s statement that truth-telling is an
end in itself. Read with what Justice Cardozo said, this goal translates to the more concrete and
currently understandable aim – to establish the "truth" as part of the accepted public belief; the EO’s
aim is achieved irrespective of what the pertinent adjudicatory bodies may conclude, as even they could
be influenced by the generally accepted "truth."
Further on, Justice Cardozo, speaking in the context of the development of case law in common law,
went on to say, quoting Henderson:58
When an adherent to a systematic faith is brought continuously in touch with influences and exposed to
desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a
growing store of hostile mental inclinations may accumulate, strongly motivating action and decision,
but seldom emerging clearly into consciousness. In the meantime, the formulas of the old faith are
retained and repeated by force of habit, until one day the realization comes that conduct and sympathies
and fundamental desires have become so inconsistent with the logical framework that it must be
discarded. Then begins the task of building up and rationalizing a new faith.
Although written in another context, this statement – relating to how one’s belief is supplanted by
another – runs parallel to how the belief system of an individual judge can be subtly affected by
inconsistent influences and how he ultimately succumbs to a new belief.
Without doubt, the process of converting to a new belief is an unavoidable and continuous process that
every decision maker undergoes as the belief system he started with, changes and evolves through in-
court experiences and exposure to outside influences. Such exposure cannot be faulted, particularly
when brought on by the media working pursuant to its exercise of the freedoms of the press and speech,
and speaking in the course of the clash of ideas in the public forum. The same exposure, however, is not
as neutral and fault-free when it is precipitated by the government acting as a catalytic agent to hasten
the achievement of its own ends, in this case, the disclosure of the "truth" regarding the alleged graft and
corruption during the previous regime.
In the context of the EO, the Executive can investigate within the limits of its legal parameters and can
likewise publicize the results of its investigations to the full limit of allowable transparency. But in so
doing, it cannot act as catalyst by labelling the action of the Commission it has created as officially-
sanctioned and authoritative truth-telling before the officially-designated bodies – the Ombudsman and
the courts – have spoken. While the emergence of truth is a basic and necessary component of the
justice system, the truth-seeking and truth-finding processes cannot be speeded up through steps that
shortcut and bypass processes established by the Constitution and the laws. As heretofore mentioned,
the international experiences that gave rise to the title Truth Commission were transitional situations
where, for peculiar reasons (such as the temporary absence of an established judicial system or the need
to speed up the transition to democratic rule), the use of ad hoc commissions were called for. In the
Philippine setting, the closest similar situation would be the immediate aftermath of the 1986 EDSA
Revolution as the country struggled in the transition from authoritarian martial law regime into a full-
fledged democracy. To be sure, the shortcut to the emergence of truth, fashioned under the terms of EO
1, finds no justification after the 1987 Constitution and its rights, freedoms and guarantees have been
fully put in place.
A.4.2. The Effects on the Judicial System
To fully appreciate the potential prejudicial effects of truth-telling on the judicial system, the effects of
media exposure – from the point of view of what transpires and the circumstances present under truth-
telling and under the present justice system – deserve examination.
Under the present justice system, the media may fully report, as they do report, all the details of a
reported crime and may even give the suspects detailed focus. These reports, however, are not branded
as the "truth" but as matters that will soon be brought to the appropriate public authorities for proper
investigation and prosecution, if warranted. In the courts, cases are handled on the basis of the rules of
evidence and with due respect for the constitutional rights of the accused, and are reported based on
actual developments, subject only to judicial requirements to ensure orderly proceedings and the
observance of the rights of the accused. Only after the courts have finally spoken shall there be any
conclusive narrative report of what actually transpired and how accused individuals may have
participated in committing the offense charged. At this point, any public report and analysis of the
findings can no longer adversely affect the constitutional rights of the accused as they had been given all
the opportunities to tell their side in court under the protective guarantees of the Constitution.
In contrast, the circumstances that underlie Commission reports are different. The "truth" that the
Commission shall publicize shall be based on "facts" that have not been tested and admitted according
to the rules of evidence; by its own express rules, the technical rules of evidence do not apply to the
Commission.59 The reported facts may have also been secured under circumstances violative of the
rights of the persons investigated under the guarantees of the Constitution. Thus, what the Commission
reports might not at all pass the tests of guilt that apply under the present justice system, yet they will be
reported with the full support of the government as the "truth" to the public. As fully discussed below,
these circumstances all work to the active prejudice of the investigated persons whose reputations, at the
very least, are blackened once they are reported by the Commission as participants in graft and
corruption, even if the courts subsequently find them innocent of these charges.
A.5. Truth-telling: an unreasonable means to a reasonable objective.
Viewed from the above perspectives, what becomes plainly evident is an EO that, as a means of fighting
graft and corruption, will effectively and prejudicially affect the parties inter-acting with the Truth
Commission. The EO will erode the authority and even the integrity of the Ombudsman and the courts
in acting on matters brought before them under the terms of the Constitution; its premature and
"truthful" report of guilt will condition the public’s mind to reject any finding other than those of the
Commission.
Under this environment, the findings or results of the second forum described above overwhelm the
processes and whatever may be the findings or results of the first forum. In other words, the findings or
results of the second forum – obtained without any assurance of the observance of constitutional
guarantees – would not only create heightened expectations and exert unwanted pressure, but even
induce changed perceptions and bias in the processes of the first forum in the manner analogous to what
Justice Cardozo described above. The first casualties, of course, are the investigated persons and their
basic rights, as fully explained elsewhere in this Opinion.
While EO 1 may, therefore, serve a laudable anti-graft and corruption purpose and may have been
launched by the President in good faith and with all sincerity, its truth-telling function, undertaken in the
manner outlined in the EO and its implementing rules, is not a means that this Court can hold as
reasonable and valid, when viewed from the prism of due process. From this vantage point, the
Commission is not only a mislabelled body but one whose potential outputs must as well be discarded
for being unacceptable under the norms of the Constitution.
B. DISTORTION OF EXISTING LEGAL FRAMEWORK
The EO and its truth-telling function must also be struck down as they distort the constitutional and
statutory plan of the criminal justice system without the authority of law and with an unconstitutional
impact on the system.
B.1. The Existing Legal Framework
The Constitution has given the country a well-laid out and balanced division of powers, distributed
among the legislative, executive and judicial branches, with specially established offices geared to
accomplish specific objectives to strengthen the whole constitutional structure.
The Legislature is provided, in relation with the dispensation of justice, the authority to create courts
with defined jurisdictions below the level of the Supreme Court;60 to define the required qualifications
for judges;61 to define what acts are criminal and what penalties they shall carry;62 and to provide the
budgets for the courts.63
The Executive branch is tasked with the enforcement of the laws that the Legislature shall pass. In the
dispensation of justice, the Executive has the prerogative of appointing justices and judges,64 and the
authority to investigate and prosecute crimes through a Department of Justice constituted in accordance
the Administrative Code.65 Specifically provided and established by the Constitution, for a task that
would otherwise fall under the Executive’s investigatory and prosecutory authority, is an independent
Ombudsman for the purpose of acting on, investigating and prosecuting allegedly criminal acts or
omissions of public officers and employees in the exercise of their functions. While the Ombudsman’s
jurisdiction is not exclusive, it is primary; it takes precedence and overrides any investigatory and
prosecutory action by the Department of Justice.66
The Judiciary, on the other hand, is given the task of standing in judgment over the criminal cases
brought before it, either at the first instance through the municipal and the regional trial courts, or on
appeal or certiorari, through the appellate courts and ultimately to the Supreme Court.67 An exception
to these generalities is the Sandiganbayan, a special statutorily-created court with the exclusive
jurisdiction over criminal acts committed by public officers and employees in the exercise of their
functions.68 Underlying all these is the Supreme Court’s authority to promulgate the rules of procedure
applicable to courts and their proceedings,69 to appoint all officials and employees of the Judiciary
other than judges,70 and to exercise supervision over all courts and judiciary employees.71
In the usual course, an act allegedly violative of our criminal laws may be brought to the attention of the
police authorities for unilateral fact-finding investigation. If a basis for a complaint exists, then the
matter is brought before the prosecutor’s office for formal investigation, through an inquest or a
preliminary investigation, to determine if probable cause exists to justify the filing of a formal complaint
or information before the courts. Aside from those initiated at the instance of the aggrieved private
parties, the fact-finding investigation may be made at the instance of the President or of senior officials
of the Executive branch, to be undertaken by police authorities, by the investigatory agencies of the
Department of Justice, or by specially constituted or delegated officials or employees of the Executive
branch; the preliminary investigation for the determination of probable cause is a task statutorily vested
in the prosecutor’s office.72 Up to this point, these activities lie within the Executive branch of
government and may be called its extrajudicial participation in the justice system.
By specific authority of the Constitution and the law, a deviation from the above general process occurs
in the case of acts allegedly committed by public officers and employees in the performance of their
duties where, as mentioned above, the Ombudsman has primary jurisdiction. While the Executive
branch itself may undertake a unilateral fact-finding, and the prosecutor’s office may conduct
preliminary investigation for purposes of filing a complaint or information with the courts, the
Ombudsman’s primary jurisdiction gives this office precedence and dominance once it decides to take
over a case.73
Whether a complaint or information emanates from the prosecutor’s office or from the Ombudsman,
jurisdiction to hear and try the case belongs to the courts, mandated to determine – under the formal
rules of evidence of the Rules of Court and with due observance of the constitutional rights of the
accused – the guilt or innocence of the accused. A case involving criminal acts or omissions of public
officers and employees in the performance of duties falls at the first instance within the exclusive
jurisdiction of the Sandiganbayan,74 subject to higher recourse to the Supreme Court. This is the strictly
judicial aspect of the criminal justice system.
Under the above processes, our laws have delegated the handling of criminal cases to the justice system
and there the handling should solely lie, supported by all the forces the law can muster, until the
disputed matter is fully resolved. The proceedings – whether before the Prosecutor’s Office, the
Ombudsman, or before the courts – are open to the public and are thereby made transparent; freedom of
information75 and of the press76 guarantee media participation, consistent with the justice system’s
orderly proceedings and the protection of the rights of parties.
The extrajudicial intervention of the Commission, as provided in the EO, even for the avowed purpose
of "assisting" the Ombudsman, directly disrupts the established order, as the Constitution and the law do
not envision a situation where fact-finding recommendations, already labelled as "true," would be
submitted to the Ombudsman by an entity within the Executive branch. This arrangement is simply not
within the dispensation of justice scheme, as the determination of whether probable cause exists cannot
be defeated, rendered suspect, or otherwise eroded by any prior process whose results are represented to
be the "truth" of the alleged criminal acts. The Ombudsman may be bound by the findings of a court,
particularly those of this Court, but not of any other body, most especially a body outside the regular
criminal justice system. Neither can the strictly judicial aspect of the justice system be saddled with this
type of fact-finding, as the determination of the guilt or innocence of an accused lies strictly and solely
with the courts. Nor can the EO cloak its intent of undercutting the authority of the designated
authorities to rule on the merits of the alleged graft and corruption through a statement that its findings
are recommendatory; as has been discussed above, this express provision is negated in actual
application by the title Truth Commission and its truth-telling function.
A necessary consequence of the deviation from the established constitutional and statutory plan is the
extension of the situs of the justice system from its constitutionally and statutorily designated locations
(equivalent to the above-described first forum), since the Commission will investigate matters that are
bound to go to the justice system. In other words, the Commission’s activities, including its truth-telling
function and the second forum this function creates, become the prelude to the entry of criminal matters
into the Ombudsman and into the strictly judicial aspect of the system.
In practical terms, this extension undermines the established order in the judicial system by directly
bringing in considerations that are extraneous to the adjudication of criminal cases, and by co-mingling
and confusing these with the standards of the criminal justice system. The result, unavoidably, is a
qualitative change in the criminal justice system that is based, not on a legislative policy change, but on
an executive fiat.
Because of truth-telling and its consequence of actively bringing in public opinion as a consideration,
standards and usages other than those strictly laid down or allowed by the Constitution, by the laws and
by the Rules of Court will play a part in the criminal justice system. For example, public comments on
the merits of cases that are still sub judice may become rampant as comments on a truth commission’s
findings, not on the cases pending before the courts. The commission’s "truthful" findings, made
without respect for the rules on evidence and the rights of the accused, would become the standards of
public perception of and reaction to cases, not the evidence as found by the courts based on the rules of
evidence.
Once the door is opened to the Truth Commission approach and public opinion enters as a consideration
in the judicial handling of criminal cases, then the rules of judging would have effectively changed;
reliance on the law, the rules and jurisprudence would have been weakened to the extent that judges are
on the lookout, not only for what the law and the rules say, but also for what the public feels about the
case. In this eventuality, even a noisy minority can change the course of a case simply because of their
noise and the media attention they get. (Such tactics have been attempted in the immediate past where
pressure has been brought to bear on this Court through street demonstrations bordering on anarchy, the
marshalling of opinions locally and internationally, and highly partisan media comments.) The primacy
of public opinion may, without doubt, appeal to some but this is simply not the way of a Judiciary
constitutionally-designed to follow the rule of law.
Another consequent adverse impact could be erosion of what the Constitution has very carefully
fashioned to be a system where the interpretation of the law and the dispensation of justice are to be
administered apolitically by the Judiciary. Politics always enters the picture once public opinion begins
to be a significant consideration. At this point, even politicians – ever attuned to the public pulse – may
register their own statements in the public arena on the merits of the cases even while matters are sub
judice. The effects could be worse where the case under consideration carries its own political
dimensions, as in the present case where the target involves the misdeeds of the previous administration.
Whether the Judiciary shall involve, or be involved, in politics, or whether it should consider, or be
affected by, political considerations in adjudication, has been firmly decided by the Constitution and our
laws in favour of insulation through provisions on the independence of the Judiciary – the unelected
branch of government whose standard of action is the rule of law rather than the public pulse. This
policy has not been proven to be unsound. Even if it is unsound, any change will have to be effected
through legitimate channels – through the sovereignty that can change the Constitution, to the extent
that the Judiciary’s and the Ombudsman’s independence and the exercise of judicial discretion are
concerned, and through the Congress of the Philippines, with respect to other innovations that do not
require constitutional changes.
To be sure, the President of the Philippines, through an executive or administrative order and without
authority of law, cannot introduce changes or innovations into the justice system and significantly water
down the authoritative power of the courts and of duly designated constitutional bodies in dispensing
justice. The nobility of the President’s intentions is not enough to render his act legal. As has been said
often enough, ours is a government of laws, not of men.
C. LIMITS OF THE EXERCISE OF EXECUTIVE POWER IN THE JUSTICE SYSTEM
While the Executive participates in the dispensation of justice under our constitutional and statutory
system through its investigatory and prosecutory arms and has every authority in law to ensure that the
law is enforced and that violators are prosecuted, even these powers have limits.
The independence of the Ombudsman and its freedom from interference from all other departments of
government in the performance of its functions is a barrier that cannot be breached, directly or
indirectly, except only as the Constitution and the laws may allow. No such exception has been allowed
or given to the President other than through the prosecution the Department of Justice may undertake77
when the Ombudsman has not asserted its primary jurisdiction. The concurrent jurisdiction given to the
Department of Justice to prosecute criminal cases, incidentally, is a grant specific to that office,78 not to
any other office that the Executive may create through an executive order.
The Executive can, without doubt, recommend that specific violators be prosecuted and the basis for
this recommendation need not even come from the Department of Justice; the basis may be the findings
of the Office of the President itself independently of its Department of Justice. Notably, the other
branches of government may also, and do in fact, make recommendations to the Ombudsman in the way
that Congress, in the course of its fact-finding for legislative purposes, unearths anomalies that it reports
to the Ombudsman. Even the Supreme Court recommends that Judiciary officials and employees found
administratively liable be also criminally prosecuted.
The Executive can also designate officials and employees of the Executive Department (or even appoint
presidential assistants or consultants)79 to undertake fact-finding investigation for its use pursuant to the
vast powers and responsibilities of the Presidency, but it cannot create a separate body, in the way and
under the terms it created the Truth Commission, without offending the Constitution.
The following indicators, however, show that the President was not simply appointing presidential
assistants or assistants when he constituted the Truth Commission as an investigating or fact-finding
body.
First, the President "created" the Truth Commission; the act of creation goes beyond the mere naming,
designation or appointment of assistants and consultants. There is no need to "create" – i.e., to constitute
or establish something out of nothing, or to establish for the first time80 – if only the designation or
appointment of a presidential assistant or consultant is intended. To "create" an office, too, as the
petitioners rightfully claim, is a function of the Legislature under the constitutional division of
powers.81 Note in this regard, and as more fully discussed below, that what the Revised Administrative
Code, through its Section 31, allows the President is to "reorganize," not to create a public office within
the Executive department.
Second, the Truth Commission, as created by the EO, appears to be a separate body82 that is clearly
beyond being merely a group of people tasked by the President to accomplish a specific task within his
immediate office; its members do not operate in the way that presidential assistants and consultants
usually do.
It is not insignificant that the Commission has its own Rules of Procedure that it issued on its own on
the authority of the EO. Note that these are not the rules of the Office of the President but of another
body, although one constituted by the President.

The Commission has its own complete set of officers, beginning from the Chair and members of the
Commission; it has its own consultants, experts, and employees, although the latter are merely drawn
from the Executive department;83 and it even has provisions for its own budget, although these funds
ride on and are to be drawn from the budget of the Office of the President.
Third, the Commission has its own identity, separate and distinct from the Office of the President,
although it still falls within the structural framework of that office. The Commission undertakes its own
"independent" investigation84 that, according to the Solicitor General, will not be controlled by the
Office of the President;85 and it communicates on its own, under its own name, to other branches of
government outside of the Executive branch.
Lastly, the Commission as an office has been vested with functions that not even the Office of the
President possesses by authority of law, and which the President, consequently, cannot delegate.
Specifically, the Commission has its truth-telling function, because it has been given the task to disclose
the "truth" by the President, thus giving its report the imprimatur of truth well ahead of any
determination in this regard by the constitutional bodies authorized to determine the existence of
probable cause and the guilt or culpability of individuals.
If the President cannot give the official label of truth independently of the courts in a fact-finding in a
criminal case, either by himself or through the Department of Justice, it only follows that he cannot
delegate this task to any assistant, consultant, or subordinate, even granting that he can order a fact-
finding investigation based on the powers of his office. This truth-telling function differentiates the
Truth Commission from other commissions constituted in the past such as the Agrava, Feliciano and
Melo Commissions; the pronouncements of the latter bodies did not carry the imprimatur of truth, and
were mere preliminary findings for the President’s consideration. An exact recent case to drive home
this point is the Chinese hostage incident where the Office of the President modified the Report
submitted by a duly-constituted group headed by Secretary Leila de Lima.86 Apparently, the findings of
the De Lima committee did not carry the imprimatur of truth and were merely recommendatory;
otherwise the Office of the President would not have modified its findings and recommendations.
Still on the point of the President’s authority to delegate tasks to a body he has constituted, in no case
can the President order a fact-finding whose results will operate to undercut the authority and integrity
of the Ombudsman in a reported violation of the criminal laws by a public servant. The President’s
authority – outside of the instance when the Department of Justice acts in default of the Ombudsman –
is to bring to the attention of, or make recommendations to, the Ombudsman violations of the law that
the Executive branch uncovers in the course of law enforcement. This authority should be no different
from that which Congress and the Supreme Court exercise on the same point.
Given all the possibilities open to the President for a legitimate fact-finding intervention – namely,
through fact-finding by the Department of Justice or by the Office of the President itself, utilizing its
own officials, employees, consultants or assistants – the President is not wanting in measures within the
parameters allowed by law to fight graft and corruption and to address specific instances that come to
his attention. To be sure, the Philippine situation right now is far from the situations in South Africa,
Rwanda, and South America,87 where quick transitional justice88 had to be achieved because these
countries were coming from a period of non-democratic rule and their desired justice systems were not
yet fully in place. This reality removes any justification for the President to resort to extralegal (or even
illegal) measures and to institutions and mechanisms outside of those already in place, in proceeding
against grafters in the previous administration.
If the President and Congress are dissatisfied with the Ombudsman’s performance of duty, the
constitutionally-provided remedy is to impeach the Ombudsman based on the constitutionally-provided
grounds for removal. The remedy is not through the creation of a parallel office that either duplicates or
renders ineffective the Ombudsman’s actions. By the latter action, the President already situates himself
and the Executive Department into the justice system in a manner that the Constitution and the law do
not allow.
D. THE PRESIDENT HAS NO AUTHORITY EITHER UNDER THE CONSTITUTION OR UNDER
THE LAWS TO CREATE THE TRUTH COMMISSION.
Under the 1987 Constitution, the authority to create offices is lodged exclusively in Congress. This is a
necessary implication89 of its "plenary legislative power."90 Thus, except as otherwise provided by the
Constitution or statutory grant, no public office can be created except by Congress; any unauthorized
action in this regard violates the doctrine of separation of powers.
In essence, according to Father Joaquin Bernas, "separation of powers means that legislation belongs to
Congress, execution to the executive, settlement of legal controversies to the judiciary."91 This means
that the President cannot, under the present Constitution and in the guise of "executing the laws,"
perform an act that would impinge on Congress’ exclusive power to create laws, including the power to
create a public office.
In the present case, the exclusive authority of Congress in creating a public office is not questioned. The
issue raised regarding the President’s power to create the Truth Commission boils down to whether the
Constitution allows the creation of the Truth Commission by the President or by an act of Congress.
D.1 The Section 31 Argument.
EO 1, by its express terms, 92 is premised on "Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the Philippines, which gives the President
the
continuing authority to reorganize the Office of the President. The Solicitor General, of course, did not
steadfastly hold on to this view; in the course of the oral arguments and in his Memorandum, he invoked
other bases for the President’s authority to issue EO 1. In the process, he likewise made various claims,
not all of them consistent with one another, on the nature of the Truth Commission that EO 1 created.
Section 31 shows that it is a very potent presidential power, as it empowers him to (1) to re-organize his
own internal office; (2) transfer any function or office from the Office of the President to the various
executive departments; and (3) transfer any function or office from the various executive departments to
the Office of the President.
To reorganize presupposes that an office is or offices are already existing and that (1) a reduction is
effected, either of staff or of its functions, for transfer to another or for abolition because of redundancy;
(2) offices are merged resulting in the retention of one as the dominant office; (3) two offices are
abolished resulting in the emergence of a new office carrying the attributes of its predecessors as well as
their responsibilities; or (4) a new office is created by dividing the functions and staff of an existing
office. Buklod ng Kawaning EIIB v. Hon. Executive Secretary addresses this point when it said:
[R]eorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions. It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of control, authority and
responsibility between them.93
These traditional concepts of reorganization do not appear to have taken place in the establishment of
the Truth Commission. As heretofore mentioned, by its plain terms, it was "created" and did not simply
emerge from the functions or the personality of another office, whether within or outside the Office of
the President. Thus, it is a completely new body that the President constituted, not a body that
appropriated the powers of, or derived its powers from, the investigatory and prosecutory powers of the
Department of Justice or any other investigatory body within the Executive branch.
From the Solicitor General’s Memorandum, it appears that the inspiration for the EO came from the use
and experiences of truth commissions in other countries that were coming from "determinate periods of
abusive rule or conflict" for purposes of making "recommendations for [the] redress and future
prevention"94 of similar abusive rule or conflict. It is a body to establish the "truth of what abuses
actually happened in the past;" the Solicitor General even suggests that the "doctrine of separation of
powers and the extent of the powers of co-equal branches of government should not be so construed as
to restrain the Executive from uncovering the truth about betrayals of public trust, from addressing their
enabling conditions, and from preventing their recurrence."95 By these perorations, the Solicitor
General unwittingly strengthens the view that no reorganization ever took place when the Truth
Commission was created; what the President "created" was a new office that does not trace its roots to
any existing office or function from the Office of the President or from the executive departments and
agencies he controls.
Thus, the President cannot legally invoke Section 31 to create the Truth Commission. The requirements
for the application of this Section are simply not present; any insistence on the use of this Section can
only lead to the invalidity of EO 1.

D.2. The PD 1416 and Residual Powers Argument
Independently of the EO’s express legal basis, the Solicitor-General introduced a new basis of authority,
theorizing that "the power of the President to reorganize the executive branch" is justifiable under
Presidential Decree (PD) No. 1416, as amended by PD No. 1772, based on the President’s residual
powers under Section 20, Title I, Book III of E.O. No. 292." He cites in this regard the case of Larin v.
Executive Secretary96 and according to him:
x x x This provision speaks of such other powers vested in the President under the law. What law then
which gives him the power to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the
continuing authority to reorganize the national government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify
functions, services and activities and to standardize salaries and materials. The validity of these two
decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees, executive
orders, proclamations, letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or revoked." So far, there is yet no law
amending or repealing said decrees.97 [Emphasis supplied]
Unfortunately, even the invocation of the transitory clause of the 1987 Constitution (regarding the
validity of laws and decrees not inconsistent with the Constitution) cannot save EO 1, as PD 1416 is a
legislation that has long lost its potency.
Contemporary history teaches us that PD 1416 was passed under completely different factual and legal
milieus that are not present today, thus rendering this presidential decree an anachronism that can no
longer be invoked.
Prior to the EDSA Revolution of 1986 (and the 1987 Constitution), President Marcos exercised
legislative powers and issued PD 1416, as amended by PD 1772, which, by its express terms, allowed
the President to reorganize and/or create offices within the National Government. This was sanctioned
in the exercise of the President’s martial law powers and on the basis of Article XVII, Section 3(2) of
the 1973 Constitution.98
Upon the adoption of the 1987 Constitution, and the re-introduction of the presidential form of
government, the "separation of legislative and executive powers"99 was restored. Similarly recognized
were the limits on the exercise of the carefully carved-out and designated powers of each branch of
government. Thus, Congress regained the exclusive power to create public offices; PD 1416, as
amended by PD 1776 – a creation of the legal order under President Marcos – lost its authority as a
justification for the creation of an office by the President.
That PD 1416, as amended by PD 1776, has been overtaken and rendered an obsolete law, is not a new
position taken within this Court. In his separate concurring opinion in Banda v. Executive Secretary,100
Justice Antonio T. Carpio pointedly posited that the ruling in Larin v. Executive Secretary101
(reiterated in Buklod ng Kawaning EIIB v. Hon. Sec. Zamora102 and Tondo Medical Center Employees
Association v. Court of Appeals103), which relied on Section 20, Chapter 7, Book II of the
Administrative Code of 1987 in relation with P.D. 1416, cannot validate Executive Order No. 378
assailed in that case because "P.D. 1416, as amended, with its blending of legislative and executive
powers, is a vestige of an autrocratic era, totally anachronistic to our present-day constitutional
democracy." 104
Thus, the present and firmly established legal reality is that under the 1987 Constitution and the Revised
Administrative Code, the President cannot create a public office except to the extent that he is allowed
by Section 31, Chapter 10, Book III of the Revised Administrative Code. As discussed above, even this
narrow window cannot be used as the President did not comply with the requirements of Section 31.
D.3. The Authority of the President under the Faithful Execution Clause
Article VII, Section 17 of the 1987 Constitution directs and authorizes the President to faithfully execute
the laws and the potency of this power cannot be underestimated. Owing perhaps to the latitude granted
to the President under this constitutional provision, the Solicitor General posited that the President’s
power to create the Truth Commission may be justified under this general grant of authority. In
particular, the Solicitor General argues that the "President’s power to conduct investigations to aid him
in ensuring the faithful execution of laws – in this case, fundamental laws on public accountability and
transparency – is inherent in the President’s powers as the Chief Executive." 105 The Solicitor General
further argues: "That the authority of the President to conduct investigations and to create bodies to
execute this power is not explicitly mentioned in the Constitution or in statutes does not mean he is
bereft of such authority."106
That the President cannot, in the absence of any statutory justification, refuse to execute the laws when
called for is a principle fully recognized by jurisprudence. In In re Neagle, the US Supreme Court held
that the faithful execution clause is "not limited to the enforcement of acts of Congress according to
their express terms."107 According to Father Bernas, Neagle "saw as law that had to be faithfully
executed not just formal acts of the legislature but any duty or obligation inferable from the Constitution
or from statutes."108
Under his broad powers to execute the laws, the President can undoubtedly create ad hoc bodies for
purposes of investigating reported crimes. The President, however, has to observe the limits imposed on
him by the constitutional plan: he must respect the separation of powers and the independence of other
bodies which have their own constitutional and statutory mandates, as discussed above. Contrary to
what J. Antonio Eduardo B. Nachura claims in his Dissent, the President cannot claim the right to create
a public office in the course of implementing the law, as this power lodged exclusively in Congress. An
investigating body, furthermore, must operate within the Executive branch; the President cannot create
an office outside the Executive department.
These legal realities spawned the problems that the Solicitor General created for himself when he made
conflicting claims about the Truth Commission during the oral arguments. For accuracy, the excerpts
from the oral arguments are best quoted verbatim.109
Associate Justice Nachura: Mr. Solicitor General, most of my questions have actually been asked
already and there are few things that I would like to be clarified on. Well, following the questions asked
by Justice Carpio, I would like a clarification from you, a definite answer, is the Truth Commission a
public office?
Solicitor General Cadiz: No, Your Honor.
Associate Justice Nachura: Ah, you mean it is not a public office?
Solicitor General Cadiz: It is not a public office in the concept that it has to be created by Congress,
Your Honor.
Associate Justice Nachura: Oh, come on, I agree with you that the President can create public offices,
that was what, ah, one of the questions I asked Congressman Lagman.
Solicitor General Cadiz: Thank you, your Honor.
Associate Justice Nachura: Because he was insisting that only Congress could create public office
although, he said, the President can create public offices but only in the context of the authority granted
under the Administrative Code of 1987. So, it is a public office?
Solicitor General Cadiz: Yes, Your Honor.
Associate Justice Nachura: This is definite, categorical. You are certain now that Truth Commission
(interrupted)
Solicitor General Cadiz: Yes, Your Honor, under the Office of the President Proper, yes, Your Honor.
Associate Justice Nachura: Again?
Solicitor General Cadiz: That this Truth Commission is a public office, Your Honor, created under the
Office of the President.
Associate Justice Nachura: Okay, created under the Office of the President, because it is the President
who created it. And the President can create offices only within the executive department. He cannot
create a public office outside of the executive department, alright.
Solicitor General Cadiz: Yes, Your Honor.
Associate Justice Nachura: Okay. So, the Commissioners who are appointed are what, Presidential
Assistants? Are they Presidential Assistants?
Solicitor General Cadiz: They are Commissioners, Your Honor.
Associate Justice Nachura: They are, therefore, alter-egos of the President?
Solicitor General Cadiz: No, Your Honor. There is created a Truth Commission, and Commissioners are
appointed and it so stated here that they are independent.
Associate Justice Nachura: Aha, okay.
Solicitor General Cadiz: Of the Office of the President.
Associate Justice Nachura: Are you saying now that the Commissioners are not under the power and
control of the President of the Philippines?
Solicitor General Cadiz: It is so stated in the Executive Order, Your Honor.
Associate Justice Nachura: Aha, alright. So, the Truth Commission is not an office within the executive
department, because it is not under the power of control of the President, then, Section 17 of Article VII
would not apply to them, is that it?
Solicitor General Cadiz: Your Honor, the President has delineated his power by creating an Executive
Order which created the Commission, which says, that this is an independent body, Your Honor.
Associate Justice Nachura: Okay. So, what you are saying is, this is a creation of the President, it is
under the President’s power of control, but the President has chosen not to exercise the power of control
by declaring that it shall be an independent body?
Solicitor General Cadiz: Yes, Your Honor.
Associate Justice Nachura: That is your position. I would like you to place that in your memorandum
and see. I would like to see how you will develop that argument.
The Solicitor General, despite his promise to respond through his Memorandum, never bothered to
explain point-by-point his unusual positions and conclusions during the oral arguments, responding only
with generalities that were not responsive or in point.110
Specifically, while admitting that the Truth Commission is a "creation" of the President under his office
pursuant to the latter’s authority under the Administrative Code of 1987, the Solicitor General
incongruously claimed that the Commission is "independent" of the Office of the President and is not
under his control. Mercifully, J. Nachura suggested that the President may have created a body under his
control but has chosen not to exercise the power of control by declaring that it is an independent body,
to which the Solicitor General fully agreed.
Truth to tell (no pun intended), the Solicitor General appears under these positions to be playing a game
of smoke and mirrors with the Court. For purposes of the creation of the Truth Commission, he posits
that the move is fully within the President’s authority and in the performance of his executive functions.
This claim, of course, must necessarily be based on the premise that execution is by the President
himself or by people who are within the Executive Department and within the President’s power of
supervision and control, as the President cannot delegate his powers beyond the Executive Department.
At the same time, he claims that the Commissioners (whom he refuses to refer to as Presidential
Assistants or as alter egos of the President)111 are independent of the President, apparently because the
President has waived his power of control over them.
All these necessarily lead to the question: can the President really create an office within the Executive
branch that is independent of his control? The short answer is he cannot, and the short reason again is
the constitutional plan. The execution and implementation of the laws have been placed by the
Constitution on the shoulders of the President and on none other.112 He cannot delegate his executive
powers to any person or entity outside the Executive department except by authority of the Constitution
or the law (which authority in this case he does not have), nor can he delegate his authority to undertake
fact-finding as an incident of his executive power, and at the same time take the position that he has no
responsibility for the fact-finding because it is independent of him and his office.
Under the constitutional plan, the creation of this kind of office with this kind of independence is lodged
only in the Legislature.113 For example, it is only the Legislature which can create a body like the
National Labor Relations Commission whose decisions are final and are neither appealable to the
President nor to his alter ego, the Secretary of Labor.114 Yet another example, President Corazon
Aquino herself, because the creation of an independent commission was outside her executive powers,
deemed it necessary to act pursuant to a legislative fiat in constituting the first Davide Commission of
1989.115
Apparently, the President wanted to create a separate, distinct and independent Commission because he
wants to continuously impress upon the public – his audience in the second forum – that this
Commission can tell the "truth" without any control or prompting from the Office of the President and
without need of waiting for definitive word from those constitutionally-assigned to undertake this task.
Here, truth-telling again rears its ugly head and is unmasked for what it really is – an attempt to bypass
the constitutional plan on how crimes are investigated and resolved with finality.
Otherwise stated, if indeed the President can create the Commission as a fact-finding or investigating
body, the Commission must perforce be an entity that is within the Executive branch and as such is
subject to the control and supervision of the President. In fact, the circumstances surrounding the
existence of the Commission – already outlined above in terms of its processes, facilities, budget and
staff – cannot but lead to control. Likewise, if indeed the Truth Commission is under the control of the
President who issued the EO with openly-admitted political motivation,116 then the Solicitor General’s
representation about the Commission’s independently-arrived "truth" may fall under the classification of
a smoke and mirror political move. Sad to state, the Solicitor General chose to aim for the best of all
worlds in making representations about the creation and the nature of the Commission. We cannot allow
this approach to pass unnoticed and without the observations it deserves.
If the President wants a truly independent Commission, then that Commission must be created through
an act of Congress; otherwise, that independent Commission will be an unconstitutional body. Note as
added examples in this regard that previous presidential fact-finding bodies, created either by Executive
or Administrative Orders (i.e., Feliciano, Melo, Zeñarosa and IIRC Commissions), were all part of the
Executive department and their findings, even without any express representation in the orders creating
them, were necessarily subject to the power of the President to review, alter, modify or revise according
to the best judgment of the President. That the President who received these commissions’ reports did
not alter the recommendations made is not an argument that the President can create an "independent"
commission, as the Presidents receiving the commissions’ reports could have, but simply did not,
choose to interfere with these past commissions’ findings.
In sum, this Court cannot and should not accept an arrangement where: (1) the President creates an
office pursuant to his constitutional power to execute the laws and to his Administrative Code powers to
reorganize the Executive branch, and (2) at the same time or thereafter allow the President to disavow
any link with the created body or its results through a claim of independence and waiver of control. This
arrangement bypasses and mocks the constitutional plan on the separation of powers; among others, it
encroaches into Congress’ authority to create an office. This consequence must necessarily be fatal for
the arrangement is inimical to the doctrine of separation of powers whose purpose, according to Father
Joaquin Bernas, is:
to prevent concentration of powers in one department and thereby to avoid tyranny. But the price paid
for the insurance against tyranny is the risk of a degree of inefficiency and even the danger of gridlock.
As Justice Brandeis put it, "the doctrine of separation of powers was adopted…not to promote
efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by
means of the inevitable friction incident to the distribution of governmental powers among the three
departments, to save the people from autocracy."117
Indeed, to allow one department of government, without the authority of law or the Constitution, to be
granted the authority to bestow an advanced imprimatur of "truth" bespeaks of a concentration of power
that may well overshadow any initiative to combat graft and corruption; in its own way, this grant itself
is an open invitation to the very evils sought to be avoided.
E. VIOLATIONS OF THE RIGHTS OF INVESTIGATED PERSONS
E.1 Violation of Personal Rights
Separately from the above effects, truth-telling as envisioned under the EO, carries prejudicial effects on
the persons it immediately targets, namely: the officials, employees and private individuals alleged to
have committed graft and corruption during the previous administration. This consequence proceeds
from the above discussed truth-telling premise that –whether the Commission reports (recommending
the charging of specific individuals) are proven or not in the appropriate courts – the Commission’s
function of truth-telling function would have been served and the Commission would have effectively
acted against the charged individuals.
The most obvious prejudicial effect of the truth-telling function on the persons investigated is on their
persons, reputation and property. Simply being singled out as "charged" in a truth-telling report will
inevitably mean disturbance of one’s routines, activities and relationships; the preparation for a defense
that will cost money, time and energy; changes in personal, job and business relationships with others;
and adverse effects on jobs and businesses. Worse, reputations can forever be tarnished after one is
labelled as a participant in massive graft and corruption.
Conceivably, these prejudicial effects may be dismissed as speculative arguments that are not justified
by any supporting evidence and, hence, cannot effectively be cited as factual basis for the invalidity of
the EO. Evidence, however, is hardly necessary where the prejudicial effects are self-evident, i.e., given
that the announced and undisputed government position that truth-telling per se, in the manner
envisioned by the EO and its implementing rules, is an independent objective the government wants to
achieve. When the government itself has been heard on the "truth," the probability of prejudice for the
individual charged is not only a likelihood; it approaches the level of certainty.
In testing the validity of a government act or statute, such potential for harm suffices to invalidate the
challenged act; evidence of actual harm is not necessary in the way it is necessary for a criminal
conviction or to justify an award for damages. In plainer terms, the certainty of consequent damage
requires no evidence or further reasoning when the government itself declares that for as long as the
"story" of the allegedly massive graft and corruption during the past administration is told, the
Commission would have fulfilled one of its functions to satisfaction; under this reckless approach, it is
self-evident that the mistaken object of the "truth" told must necessarily suffer.
In the context of this effect, the government statement translates to the message: forget the damage the
persons investigated may suffer on their persons and reputation; forget the rights they are entitled to
under the Constitution; give primacy to the story told. This kind of message, of course, is unacceptable
under a Constitution that establishes the strongest safeguards, through the Bill of Rights, in favor of the
individual’s right to life, security and property against the overwhelming might of the government.
E.2 Denial of the right to a fair criminal trial.
The essence of the due process guarantee in a criminal case, as provided under Section 14(1) of the
Constitution, is the right to a fair trial. What is fair depends on compliance with the express guarantees
of the Constitution, and on the circumstances of each case.
When the Commission’s report itself is characterized, prior to trial, and held out by the government to
be the true story of the graft and corruption charged, the chances of individuals to have a fair trial in a
subsequent criminal case cannot be very great.
Consider on this point that not even the main actors in the criminal justice system – the Ombudsman,
the Sandiganbayan and even this Court – can avoid the cloud of "untruth" and a doubtful taint in their
integrity after the government has publicized the Commission’s findings as the truth. If the rulings of
these constitutional bodies themselves can be suspect, individual defenses for sure cannot rise any
higher.
Where the government simply wants to tell its story, already labelled as true, well ahead of any court
proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion that
news of government scandals generate, it does not require a leap of faith to conclude that an accused
brought to court against overwhelming public opinion starts his case with a less than equal chance of
acquittal. The presumption of innocence notwithstanding, the playing field cannot but be uneven in a
criminal trial when the accused enters trial with a government-sponsored badge of guilt on his
forehead.118 The presumption of innocence in law cannot serve an accused in a biased atmosphere
pointing to guilt in fact because the government and public opinion have spoken against the accused.
Viewed from the perspective of its cause, the prejudicial publicity, that adversely affects the chances of
an accused for a fair trial after the EO has done its job, is not the kind that occurs solely because of the
identity of the individual accused. This prejudice results from a cause systemic to the EO because of its
truth-telling feature that allows the government to call its proceedings and reports a process of truth-
telling where the tales cannot but be true. This kind of systemic aberration has no place in the country’s
dispensation of criminal justice system and should be struck down as invalid before it can fully work
itself into the criminal justice system as an acceptable intervention.
F. THE TRUTH COMMISSION AND THE EQUAL PROTECTION CLAUSE
The guarantee of equal protection of the law is a branch of the right to due process embodied in Article
III, Section 1 of the Constitution. It is rooted in the same concept of fairness that underlies the due
process clause. In its simplest sense, it requires equal treatment, i.e., the absence of discrimination, for
all those under the same situation. An early case, People v. Cayat,119 articulated the requisites
determinative of valid and reasonable classification under the equal protection clause, and stated that it
must
(1) rest on substantial distinctions;
(2) be germane to the purpose of the law;
(3) not be limited to existing conditions only; and
(4) apply equally to all members of the same class.
In our jurisdiction, we mainly decide equal protection challenges using a "rational basis" test, coupled
with a "deferential" scrutiny of legislative classifications and a reluctance to invalidate a law unless
there is a showing of a clear and unequivocal breach of the Constitution.120 Our views on the matter,
however, have not remained static, and have been attuned to the jurisprudential developments in the
United States on the levels of scrutiny that are applied to determine the acceptability of any differences
in treatment that may result from the law. 121
Serrano v. Gallant Maritime Services, Inc.122 summarizes the three tests employed in this jurisdiction
as follows:
There are three levels of scrutiny at which the Court reviews the constitutionality of a classification
embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification
needs only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or
intermediate scrutiny in which the government must show that the challenged classification serves an
important state interest and that the classification is at least substantially related to serving that interest;
and c) strict judicial scrutiny in which a legislative classification which impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is
presumed unconstitutional, and the burden is upon the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect such
interest. [Emphasis supplied]
The most exacting of the three tests is evidently the strict scrutiny test, which requires the government to
show that the challenged classification serves a compelling state interest and that the classification is
necessary to serve that interest.123 Briefly stated, the strict scrutiny test is applied when the challenged
statute either:
(1) classifies on the basis of an inherently suspect characteristic; or
(2) infringes fundamental constitutional rights.
In these situations, the usual presumption of constitutionality is reversed, and it falls upon the
government to demonstrate that its classification has been narrowly tailored to further compelling
governmental interests; otherwise, the law shall be declared unconstitutional for violating the equal
protection clause.124
In EO 1, for the first time in Philippine history, the Executive created a public office to address the
"reports of graft and corruption of such magnitude that shock and offend the moral and ethical
sensibilities of the people, committed….during the previous administration" through fact-finding, policy
formulation and truth-telling.125 While fact-finding has been undertaken by previous investigative
commissions for purposes of possible prosecution and policy-formulation, a first for the current Truth
Commission is its task of truth-telling. The Commission not only has to investigate reported graft and
corruption; it also has the authority to announce to the public the "truth" regarding alleged graft and
corruption committed during the previous administration.
EO 1’s problem with the equal protection clause lies in the truth-telling function it gave the Truth
Commission.
As extensively discussed earlier in this Opinion, truth-telling is not an ordinary task, as the
Commission’s reports to the government and the public are already given the imprimatur of truth way
before the allegations of graft and corruption are ever proven in court. This feature, by itself, is a unique
differential treatment that cannot but be considered in the application of the jurisprudential equal
protection clause requirements.

Equally unique is the focus of the Commission’s investigation - it solely addresses alleged graft and
corruption committed during the past administration. This focus is further narrowed down to "third level
public officers and higher, their co-principal, accomplices and accessories from the private sector, if
any, during the previous administration."126 Under these terms, the subject of the EO is limited only to
a very select group – the highest officials, not any ordinary government official at the time. Notably
excluded under these express terms are third level and higher officials of other previous administrations
who can still be possibly be charged of similar levels of graft and corruption they might have
perpetrated during their incumbency. Likewise excepted are the third level officials of the present
administration who may likewise commit the same level of graft and corruption during the term of the
Commission.
Thus, from the points of truth-telling and the focus on the people to be investigated, at least a double
layer of differential treatment characterizes the Truth Commission’s investigation. Given these disparate
treatment, the equal protection question that arises is: does the resulting classification and segregation of
third level officials of the previous administration and their differential treatment rest on substantial
distinctions? Stated more plainly, is there reasonable basis to differentiate the officials of the previous
administration, both from the focus given to them in relation with all other officials as pointed out
above, and in the truth-telling treatment accorded to them by the Commission?
Still a deeper question to be answered is: what level of scrutiny should be given to the patent
discrimination in focus and in treatment that the EO abets? Although this question is stated last, it
should have been the initial consideration, as its determination governs the level of scrutiny to be
accorded; if the strict scrutiny test is appropriate, the government, not the party questioning a
classification, carries the burden of showing that permissible classification took place. This critical
consideration partly accounts, too, for the relegation to the last, among the EO’s cited grounds for
invalidity, of the equal protection clause violation; the applicable level of scrutiny may depend on the
prior determination of whether, as held in Serrano, the disparate treatment is attended by infringement
of fundamental constitutional rights.
"Fundamental rights" whose infringement leads to strict scrutiny under the equal protection clause are
those basic liberties explicitly or implicitly guaranteed in the Constitution. Justice Carpio-Morales,
although in dissent in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,127
elaborated on this point when she said:
Most fundamental rights cases decided in the United States require equal protection analysis because
these cases would involve a review of statutes which classify persons and impose differing restrictions
on the ability of a certain class of persons to exercise a fundamental right. Fundamental rights include
only those basic liberties explicitly or implicitly guaranteed by the U.S. Constitution. And precisely
because these statutes affect fundamental liberties, any experiment involving basic freedoms which the
legislature conducts must be critically examined under the lens of Strict Scrutiny.
Fundamental rights which give rise to Strict Scrutiny include the right of procreation, the right to marry,
the right to exercise First Amendment freedoms such as free speech, political expression, press,
assembly, and so forth, the right to travel, and the right to vote. [Emphasis supplied]
In the present case, as shown by the previously cited grounds for the EO’s invalidity, EO No. 1 infringes
the personal due process rights of the investigated persons, as well as their constitutional right to a fair
trial. Indisputably, both these rights – one of them guaranteed under Section 1, Article III, and under
Section 14 of the same Article – are, by jurisprudential definition, fundamental rights. With these
infringements, the question now thus shifts to the application of the strict scrutiny test – an exercise not
novel in this jurisdiction.
In the above-cited Central Bank Employees Association, Inc. case,128 we stated:
Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the Constitution.
The deference stops where the classification violates a fundamental right, or prejudices persons
accorded special protection by the Constitution. When these violations arise, this Court must discharge
its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not suffice.
xxx
But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of
prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to
be more strict. A weak and watered down view would call for the abdication of this Court’s solemn duty
to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the
actor committing the unconstitutional act is a private person or the government itself or one of its
instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor.
[Underscoring supplied]
Stripped of the usual deference accorded to it, the government must show that a compelling state
interest exists to justify the differential treatment that EO 1 fosters.
Serrano v. Gallant Maritime Services, Inc.129 helpfully tells us the compelling state interest that is
critical in a strict scrutiny examination:
What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the
Constitution and calibrated by history. It is akin to the paramount interest of the state for which some
individual liberties must give way, such as the public interest in safeguarding health or maintaining
medical standards, or in maintaining access to information on matters of public concern.
In this same cited case, the Court categorically ruled that "the burden is upon the government to prove
that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest."130
On its face, the compelling state interest the EO cites is the "urgent call for the determination of the
truth regarding certain reports of large scale graft and corruption in the government and to put a closure
to them by the filing of the appropriate cases against those involved if warranted, and to deter others
from committing the evil, restore the people’s faith and confidence in the Government and in their
public servants."131 Under these terms, what appears important to the government as means or
mediums in its fight against graft and corruption are (1) to expose the graft and corruption the past
administration committed; (2) to prosecute the malefactors, if possible; and (3) to set an example for
others. Whether a compelling State interest exists can best be tested through the prism of the means the
government has opted to utilize.
In the usual course and irrespective of who the malefactors are and when they committed their
transgressions, grafters and corruptors ought to be prosecuted. This is not only a goal but a duty of
government. Thus, by itself, the prosecution that the EO envisions is not any different from all other
actions the government undertakes day to day under the criminal justice system in proceeding against
the grafters and the corrupt. In other words, expressed as a duty, the compelling drive to prosecute must
be the same irrespective of the administration under which the graft and corruption were perpetrated. If
indeed this is so, what compelling reasons can there be to drive the government to use the EO and its
unusual terms in proceeding against the officials of the previous administration?
If the EO’s terms are to be the yardstick, the basis for the separate focus is the "extent and magnitude"
of the reported graft and corruption which "shock and offend the moral and ethical sensibilities of the
people." What this "extent and magnitude" is or what specific incidents of massive graft are referred to,
however, have been left vague. Likewise, no explanation has been given on why special measures – i.e.,
the special focus on the targeted officials, the creation of a new office, and the grant of truth-telling
authority – have been taken.
Effectively, by acting as he did, the President simply gave the Commission the license to an open
hunting season to tell the "truth" against the previous administration; the Commission can investigate an
alleged single billion-peso scam, as well as transactions during the past administration that, collectively,
may reach the same amount. Only the Commission, in its wisdom, is to judge what allegations or reports
of graft and corruption to cover for as long as these were during the past administration. In the absence
of any specific guiding principle or directive, indicative of its rationale, the conclusion is unavoidable
that the EO carries no special compelling reason to single out officials of the previous administration;
what is important is that the graft be attributed to the previous administration. In other words, the real
reason for the EO’s focus lies elsewhere, not necessarily in the nature or extent of the matters to be
investigated.
If, as strongly hinted by the Solicitor General, dissatisfaction exists regarding the Ombudsman’s zeal,
efforts, results, and lack of impartiality, these concerns should be addressed through the remedies
provided under the Constitution and the laws, not by bypassing the established remedies under these
instruments. Certainly, the remedy is not through the creation of new public office without the authority
of Congress.
Every successful prosecution of a graft and corruption violation ought to be an opportunity to set an
example and to send a message to the public that the government seriously intends to discharge its
duties and responsibilities in the area of graft and corruption. To be sure, the conviction of a third level
officer is a high profile accomplishment that the government can and should announce to all as evidence
of its efforts and of the lesson that the conviction conveys. This government’s accomplishment,
however, does not need to be against an official or officials of the previous administration in order to be
a lesson; it can be any third level or higher official from any administration, including the present. In
fact, the present administration’s serious intent in fighting graft may all the more be highlighted if it will
also proceed against its own people.
It is noteworthy that the terms of the EO itself do not provide any specific reason why, for purposes of
conveying a message against graft and corruption, the focus should be on officials of the previous
administration under the EO’s special truth-telling terms. As mentioned above, the extent of the alleged
graft and corruption during the previous administration does not appear to be a sufficient reason for
distinction under the EO’s vague terms. Additionally, if a lesson for the public is really intended, the
government already has similar successful prosecutions to its credit and can have many more graphic
examples to draw from; it does not need to be driven to unusual means to show the graft and corruption
committed under the previous administration. The host of examples and methodologies already
available to the government only demonstrate that the focus on, and differential treatment of, specific
officials for public lesson purposes involves a classification unsupported by any special overriding
reason.
Given the lack of sufficiently compelling reasons to use two (2) of the three (3) objectives or interests
the government cited in EO 1, what is left of these expressed interests is simply the desire to expose the
graft and corruption the previous administration might have committed. Interestingly, the EO itself
partly provides the guiding spirit that might have moved the Executive to its intended expose as it
unabashedly points to the President’s promise made in the last election – "Kung walang corrupt, walang
mahirap."132 There, too, is the Solicitor General’s very calculated statement that truth-telling is an end
in itself that the EO wishes to achieve.
Juxtaposing these overt indicators with the EO’s singleness of focus on the previous administration,
what emerges in bold relief is the conclusion that the EO was issued largely for political ends: the
President wants his election promise fulfilled in a dramatic and unforgettable way; none could be more
so than criminal convictions, or at least, exposure of the "truth" that would forever mark his political
opponents; thus, the focus on the previous administration and the stress on establishing their corrupt
ways as the "truth."
Viewed in these lights, the political motivation behind the EO becomes inescapable. Political
considerations, of course, cannot be considered a legitimate state purpose as basis for proper
classification.133 They may be specially compelling but only for the point of view of a political party or
interest, not from the point of view of an equality-sensitive State.
In sum, no sufficient and compelling state interest appears to be served by the EO to justify the
differential treatment of the past administration’s officials. In fact, exposure of the sins of the previous
administration through truth-telling should not even be viewed as "least restrictive" as it is in fact a
means with pernicious effects on government and on third parties.
For these reasons, the conclusion that the EO violates the equal protection clause is unavoidable.
G. A FEW LAST WORDS
Our ruling in this case should not in any way detract from the concept that the Judiciary is the least
dangerous branch of government. The Judiciary has no direct control over policy nor over the national
purse, in the way that the Legislature does. Neither does it implement laws nor exercise power over
those who can enforce laws and national policy. All that it has is the power to safeguard the Constitution
in a manner independent of the two other branches of government. Ours is merely the power to check
and ensure that constitutional powers and guarantees are observed, and constitutional limits are not
violated.
Under this constitutional arrangement, the Judiciary offers the least threat to the people and their rights,
and the least threat, too, to the two other branches of government. If we rule against the other two
branches of government at all in cases properly brought before us, we do so only to exercise our sworn
duty under the Constitution. We do not prevent the two other branches from undertaking their respective
constitutional roles; we merely confine them to the limits set by the Constitution.
This is how we view our present action in declaring the invalidity of EO 1. We do not thereby impugn
the nobility of the Executive’s objective of fighting graft and corruption. We simply tell the Executive
to secure this objective within the means and manner the Constitution ordains, perhaps in a way that
would enable us to fully support the Executive.
To be sure, no cause exists to even impliedly use the term "imperial judiciary" 134 in characterizing our
action in this case.
This Court, by constitutional design and for good reasons, is not an elective body and, as already stated
above, has neither reason nor occasion to delve into politics – the realm already occupied by the two
other branches of government. It cannot exercise any ascendancy over the two other branches of
government as it is, in fact, dependent on these two branches in many ways, most particularly for its
budget, for the laws and policies that are the main subjects for its interpretation, and for the enforcement
of its decisions. While it has the power to interpret the Constitution, the Judiciary itself, however, is
subject to the same Constitution and, for this reason, must in fact be very careful and zealous in ensuring
that it respects the very instrument it is sworn to safeguard. We are aware, too, that we "cannot be the
repository of all remedies"135 and cannot presume that we can cure all the ills of society through the
powers the Constitution extended to us. Thus, this Court – by its nature and functions – cannot be in any
way be "imperial," nor has it any intention to be so. Otherwise, we ourselves shall violate the very
instrument we are sworn to uphold.
As evident in the way this Court resolved the present case, it had no way but to declare EO invalid for
the many reasons set forth above. The cited grounds are neither flimsy nor contrived; they rest on solid
legal bases. Unfortunately, no other approach exists in constitutional interpretation except to construe
the assailed governmental issuances in their best possible lights or to reflect these effects in a creative
way where these approaches are at all possible. Even construction in the best lights or a creative
interpretation, however, cannot be done where the cited grounds are major, grave and affect the very
core of the contested issuance – the situation we have in the present case.
Nor can this Court be too active or creative in advocating a position for or against a cause without
risking its integrity in the performance of its role as the middle man with the authority to decide
disputed constitutional issues. The better (and safer) course for democracy is to have a Court that holds
on to traditional values, departing from these values only when these values have become inconsistent
with the spirit and intent of the Constitution.
In the present case, as should be evident in reading the ponencia and this Separate Opinion, we have
closely adhered to traditional lines. If this can be called activism at all, we have been an activist for
tradition. Thereby, we invalidated the act of the Executive without however foreclosing or jeopardizing
his opportunity to work for the same objective in some future, more legally reasoned, and better framed
course of action.
ARTURO D. BRION
Associate Justice
Footnotes
1 Constitution, Article III, Section 1 and 14, which states:
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.
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the production of evidence in
his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused:
Provided, that he has been duly notified and his failure to appear is unjustifiable.
2 Executive Order No. 1, "Creating the Philippine Truth Commission of 2010," Section 1. 18 Rules, Rule 4, Section 1(b).

3 TSN, September 28, 2010, pp. 23, 39-40, 52, 60, 73-75, 123-126. 19 Id., Rule 4, Section 1(b), paragraph 2.

4 Id. at 182. 20 Rules, Rule 4, Section 2.

5 Id. at 58-60. 21 EO 1, Section 8.

6 EO 1, Section 1, par. 2. 22 Rules, Rule 5.

7 Id., Section 2, paragraphs. H and I; Sections 3, 4 and 5. 23 Petitioner Lagman’s Petition for Certiorari, rollo, pp. 34-43; Respondents’ Memorandum, id. at 322-
323.
8 Id., Sections 12, 13.
24 See Mark Freeman, Truth Commissions and Procedural Fairness (2006).
9 Id., Section 11.
25 Freeman, supra note 24 at 12-13 citing Priscilla Hayner, Unspeakable Truths: Facing the Challenge
10 Id., Section 2 (b). of Truth Commissions (2nd ed., 2004), p. 14.

11 Id., Sections 2 (c), (d), (e), (f), (g), (h), (i) and 6. 26 Freeman, supra note 24 at 14 [Freeman points out that Hayner omitted the element in the definition
that "truth commissions focus on severe acts of violence or repression." He stated further that "[s]uch
12 Id., Section 6. acts may take many forms, ranging from arbitrary detention to torture to enforced disappearance to
summary execution."
13 Id., Section 2.
27 Theresa Klosterman, The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little?
14 Id., Section 15. Too Late? 15 Ariz. J. Int'l & Comp. L. 833, 843-844 (1998). See also Priscilla Hayner, Fifteen Truth
Commissions 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597, 600, 607 (1994).
15 Id., Section 7.
28 An attempt has been made during the oral arguments to characterize massive graft and corruption as
16 Id., Section 8. a violation of human rights, but this characterization does not appear to be based on the settled
definition of human rights (TSN, Sept. 7, 2010, p. 83-84).
17 Resolution 001, "Rules of Procedure of the Philippine Truth Commission," September 20, 2010.
29 See Villanueva v. CA, G.R. No. 110921, January 28, 1998, 285 SCRA 180; Fabia v. IAC, G.R. No.
L-66101 November 21, 1984, 133 SCRA 364; Lacoste v. Hernandez, G.R. No. L-63796-97, May 21,
1984, 129 SCRA 373; Lu v. Yorkshire Insurance, 43 Phil. 633 (1922); People v. Macasinag, G.R. No.
L-18779, August 18, 1922, 43 Phil. 674 (1922); Correa v. Mateo, 55 Phil. 79 (1930); People v.
Macasinag, 43 Phil. 674 (1922).
30 See Joaquin G. Bernas, S.J. The 1987 Constitution Of The Republic Of The Philippines: A
Commentary (2009 ed.), p. 118.
And For Other Purposes." See also PCGG v. Hon. Emmanuel G. Peña, etc., et al., G.R. No. L-77663,
April 12, 1988, 159 SCRA 556.
34 Id. at 561-562, citing Presidential Decree No. 1606, Section 7, which provides that "decisions and
final orders [of the Sandiganbayan] shall be subject of review on certiorari by the Supreme Court in
accordance with Rule 45 of the Rules of Court."
35 TSN, September 28, 2010, pp. 58–60, 147.

31 See Id. at 119, citing U.S. v. Toribio, 15 Phil. 85 (1910), which quoted Lawton v. Steel:
[T]he State may interfere wherever the public interests demand it, and in this particular a large
discretion is necessarily vested in the legislature to determine, not only what the interests of the public
require, but what measures are necessary for the protection of such interests. (Barbier vs. Connolly, 113
U.S. 27; Kidd vs. Pearson, 128 U.S. 1.) To justify the State in thus interposing its authority in behalf of
the public, it must appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and, second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not,
under the guise of protecting the public interests, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to
what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision
of the court.
36 The Dissent of J. Sereno itself echoes and reechoes with the truth-telling intent of the Truth
Commission and even speaks of "the need to shape collective memory as a way for the public to
confront injustice and move towards a more just society" (p. 27, dissent). It proceeds to claim that this
Separate Opinion "eliminates the vital role of the Filipino people in constructing collective memories of
injustices as basis for redress." J. Sereno’s Dissenting Opinion, pp. 27-28.
37 TSN, September 28, 2010, pp. 146 – 147.
38 See e.g. Bilbija, et al., eds., The Art of Truth Telling About Authoritarian Rule (2005), p. 14.
39 Constitution, Article XI, Sections 12 and 13.
40 Supra note 35.

32 Republic Act No. 6770, Section 15, par.1, November 17, 1989, "An Act Providing For the 41 See Freeman, supra note 24, pp. 88-155.
Functional and Structural Organization of the Office of the Ombudsman, and For Other Purposes," See
also Ombudsman v. Enoc, G.R. Nos. 145957-68, January 25, 2002, 374 SCRA 691. See also 42 See Freeman, id. at 88.
Ombudsman v. Breva, G.R. No. 145938, February 10, 2006, 482 SCRA 182.
43 Constitution, Article III, Section 14 (2), supra note 1.
33 Presidential Decree No. 1606, December 10, 1978, "Revising Presidential Decree No. 1486, Creating
a Special Court to be known as Sandiganbayan and for other purposes," as amended by Republic Act 44 Constitution, Article III, Section 17.
No. 8249, February 5, 1997, "An Act Further Defining the Jurisdiction of the Sandiganbayan,
Amending For The Purpose Presidential Decree No. 1606, As Amended, Providing Funds Therefor, 45 Constitution, Article III, Section 12.
 58 Supra note 55, pp. 178-179, citing Foreign Corporations in American Constitutional Law, p. 164 cf.
46 TSN, September 28, 2010, pp. 149-151. Powell "The Changing Law of Foreign Corporations," 33 Pol. Science Quarterly, p. 569.

47 The Commission is bound to furnish the Ombudsman a copy of its partial and final reports for the 59 Rules, Rule 4, Section 2.
Ombudsman’s consideration and action, under Sec. 2 of the EO.
60 Constitution, Article VIII, Section 2. See also Bernas, supra note 30, p. 959.
48 EO 1, Section 16.
61 Id., Article VIII, Section 7 (2).
49 See generally Malcolm Gladwell, Blink (2005); see also, Cardozo, The Nature of the Judicial
Process, pp. 167-180, and as quoted elsewhere in this Separate Opinion, infra note 55. 62 People v. Maceren, G.R. No. L-32166 October 18, 1977, 79 SCRA 450, 461 citing 1 Am. Jur. 2nd,
sec. 127, p. 938; Texas Co. v. Montgomery, 73 F. Supp. 527: It has been held that "to declare what shall
50 J. Carpio’s Dissenting Opinion, pp. 19-211. constitute a crime and how it shall be punished is a power vested exclusively in the legislature, and it
may not be delegated to any other body or agency."
51 J. Sereno’s Dissenting Opinion, pp. 25- 29.
63 Constitution, Article VIII, Section 5.
52 TSN, September 28, 2010, p. 59.
64 Constitution, Article VIII, Section 8.
53 See Gladwell, supra note 49, pp. 49-73.
65 Revised Administrative Code, Book II, Chapter II, Section 22.
54 Born May 24, 1870, New York; died July 9, 1938, Port Chester, NY. US Supreme Court – 1932-
1938. He was also a Judge of NY Court of Appeals from 1914 to 1932, and was its Chief Judge in the 66 Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747,
last 6 years of his term with the Court of Appeals. See April 13, 2004, 427 SCRA 46. See also Ombudsman v. Enoc, supra note 32.
http://www.courts.state.ny.us/history/cardozo.htm [last visited December 2, 2010].
67 See Batas Pambansa Blg. 129, "An Act Reorganizing the Judiciary, Appropriating Funds Therefor,
55 Benjamin N. Cardozo, The Nature of the Judicial Process, (1921). and For Other Purposes."

56 Id. at 175-176. 68 Republic Act No. 8249, supra note 33, Section 4.

57 According to a recent SWS Survey conducted from October 20-29, 2010 69 Constitution, Article VIII, Section 5 (5).
http://www.mb.com.ph/articles/287833/80-filipinos-still-trust-aquino-despite-ratings-dip [last visited
November 17, 2010]. 70 Id., Article VIII, Section 5 (6).
71 Id., Article VIII, Section 6.
86 See http://www.gmanews.tv/story/201465/full-text-iirc-report-on-august-23-2010-rizal-park-hostage-
72 Revised Administrative Code, Chapter I, Title III, Book IV. See also Honasan II v. Panel of taking-incident, [last visited November 17, 2010].
Investigators, supra note 66.
87 See Jonathan Horowitz, Racial (Re) Construction: The Case of the South African Truth and
73 Ibid. See Section 15, par. 1, Republic Act No. 6770. Reconciliation Commission, 17 Nat'l Black L.J. 67 (2003); Evelyn Bradley, In Search for Justice – A
Truth and Reconciliation Commission for Rwanda, 7 J. Int'l L. & Prac. 129 (1998).
74 For officials in Salary Grade 27 and beyond.
88 See Catherine O’Rourke, The Shifting Signifier of "Community in Transitional Justice: A Feminist
75 Constitution, Article III, Section 7. Analysis¸ 23 Wis. J.L. Gender & Soc'y 269 (2008) citing Transitional Justice and Rule of Law Interest
Group, American Society of International Law, Statement of Purpose, http://www.asil.org/interest-
76 Id., Article III, Section 4. groups-view.cfm?groupid=32.

77 Honasan II v. Panel of Investigators, supra note 66.
78 See Honasan II v. Panel of Investigators, supra note 66. See also Rules of Court, Rule 112, Sections
2 and 4.
79 Revised Administrative Code, Chapter 9 (D), Title II, Book III.
89 Isagani Cruz, Philippine Political Law (1998 ed.) p. 79. See also Bernas, supra note 30, pp. 676-677,
stating: "Thus, any power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress."
90 Ibid. See also Canonizado v. Aguirre, G.R. No. 133132, January 25, 2000, 323 SCRA 312; Buklod
ng Kawaning EIIB v. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.

80 Black’s Law Dictionary (5th ed., 1979), p. 330. 91 Bernas, supra note 30, p. 678.

81 Buklod ng Kawaning EIIB v. Executive Secretary, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 92 EO 1, 8th and last Whereas Clause.
718, 726, citing Isagani Cruz, The Law on Public Officers (1999 ed.), p. 4.
93 Buklod ng Kawaning EIIB v. Hon. Executive Secretary, supra note 81.
82 EO 1, Section 1.
94 Solicitor General’s Memorandum, rollo, p. 332.
83 EO 1, Sections 3 and 5.
95 Id. at 324.
84 EO 1, Section 1.
96 G.R. No. 112745, October 16, 1997, 280 SCRA 713.
85 TSN, September 28, 2010, p. 166.
97 Solicitor General’s Consolidated Comment, rollo, pp. 148-149.
98 Aquino v. COMELEC, No. L-40004, January 31, 1975, 62 SCRA 275.
99 Gonzales v. PAGCOR, G. R. No. 144891, May 27, 2004, 429 SCRA 533,545.
100 G.R. No. 166620, April 20, 2010.
101 Supra note 96.
102 Supra note 81.
103 G.R. No. 167324, July 17, 2007, 527 SCRA 746.
104 J. Carpio’s Separate Concurring Opinion. Supra note 100.
105 Solicitor General’s Consolidated Comment, rollo, p. 160.
106 Id. at 41.
107 135 U.S. 1, 59 (1890).
108 Bernas, supra note 30, p. 895.
109 TSN, September 28, 2010, pp. 209-214.
110 Part of the argument the Solicitor General relied upon was Department of Health v. Campasano,
(G.R. No. 157684. April 27, 2005, 457 SCRA 438) Solicitor General’s Consolidated Comment, rollo,
pp. 145-146. Reliance on this case, however, is misplaced. In Campasano, the Court upheld the power
of the President to create an ad hoc investigating committee in the Department of Health on the basis of
the President’s constitutional power of control over the Executive Department as well as his obligation
under the faithful execution clause to ensure that all executive officials and employees faithfully comply
with the law. The Court’s ruling in Campasano is not determinative of the present case as the Truth
Commission is claimed to be a body entirely distinct and independent from the Office of the President.
This conclusion is bolstered by the Solicitor General’s own admission during oral arguments that the
Truth Commission, particularly the Commissioners are not under the power of control by the President.
In fact, the Solicitor General went as far as to admit that the President has in fact relinquished the power
of control over the Commission to underscore its independence.
111 TSN, September 28, 2010, p. 214.
112 Constitution, Article VII, Section 1: ‘The Executive Power shall be vested in the President of the
Philippines." See Bernas, supra note 30, p. 820: "With the 1987 Constitution, the constitutional system
returns to the presidential model of the 1935 Constitution: executive power is vested in the President."
Father Bernas further states: "In vesting executive power in one person rather than in a plural executive,
the evident intention was to invest the power holder with energy."
113 Constitution, Article VI, Section 1: "The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum." See Vera v. Avelino, 77 Phil. 192, 212
(1946): "any power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress x x x" cited in Bernas, supra note 30, pp. 676-677.
114 Even in the case of the NLRC, however, presidential control cannot be avoided as the NLRC is part
of the Executive branch and the President, through his Secretary of Labor, sets the policies on labor and
employment (expressed through rules and regulations and interpretation) that, consistent with the
existing laws and jurisprudence, must be followed.
115 Republic Act 6832, otherwise known as "An Act Creating A Commission To Conduct A Thorough
Fact-Finding Investigation Of The Failed Coup D′État Of December 1989, Recommend Measures To
Prevent The Occurrence Of Similar Attempts At A Violent Seizure Of Power, And For Other Purposes."
Its Section 1 provides:
Section 1. Creation, Objectives and Powers. — There is hereby created an independent Commission
which shall investigate all the facts and circumstances of the failed coup d'état of December 1989, and
recommend measures to prevent similar attempts at a violent seizure of power. [Emphasis supplied]
116 See 6th Whereas Clause, EO 1.
117 Bernas, supra note 30, p. 678.
118 See e.g. Allenet de Ribemont v. France, February 10, 1995, 15175/89 [1995] ECHR 5, where the
European Court of Human Rights held that the right to presumption of innocence may be "infringed not
only by a judge or court but also by other public authorities." The ECHR likewise held:
The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of
the fair criminal trial that is required by paragraph 1 (art. 6-1) (see, among other authorities, the Deweer
v. Belgium judgment, of 27 February 1980, Series A no. 35, p. 30, para. 56, and the Minelli judgment
previously cited, p. 15, para. 27). It will be violated if a judicial decision concerning a person charged
with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according
to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting
that the court regards the accused as guilty (see the Minelli judgment previously cited, p. 18, para. 37).
[emphasis supplied]
119 68 Phil. 12 (1939).
120 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, 370.
121 See Central Bank Employees Association, Inc. v. Bangko Sental ng Pilipinas, id., where the Court
expanded the concept of suspect classification; See also Serrano v. Gallant Maritime Services, Inc., infra
where the Court applied the strict scrutiny test.
122 G.R. No. 167614, March 24 2009, 582 SCRA 254, 277-278.
123 Supra note 30, pp. 139-140.
124 J. Carpio-Morales’ Dissenting Opinion. Supra note 120, p. 485.
125 See Item I (c) of this Concurring Opinion, p. 8.
126 EO 1, Section 2.
127 Supra note 120, pp. 495-496.
128 Id. at 387, 390.
129 Supra note 120, p. 296.
130 Id. at 278 citing Grutter v. Bollinger,539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984).
131 EO 1, 5th Whereas Clause.
132 EO 1, 6th Whereas Clause.
133 Carbonaro v. Reeher, 392 F. Supp. 753 (E.D. Pa. 1975).
134 See then Associate Justice Reynato S. Puno’s Concurring and Dissenting Opinion in Francisco, Jr.
v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. No. 160261,
November 10, 2003, 415 SCRA 44, 211, where former Chief Justice Puno spoke of an "imperial
judiciary," viz:
The 1987 Constitution expanded the parameters of judicial power, but that by no means is a justification
for the errant thought that the Constitution created an imperial judiciary. An imperial judiciary
composed of the unelected, whose sole constituency is the blindfolded lady without the right to vote, is
counter-majoritarian, hence, inherently inimical to the central ideal of democracy. We cannot pretend to
be an imperial judiciary for in a government whose cornerstone rests on the doctrine of separation of
powers, we cannot be the repository of all remedies.
135 Ibid.
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
BERSAMIN, J.:
I register my full concurrence with the Majority’s well reasoned conclusion to strike down Executive
Order No. 1 (E.O. No. 1) for its incurable unconstitutionality.
I share and adopt the perspectives of my colleagues in the Majority on why the issuance has to be struck
down. I render this Separate Opinion only to express some thoughts on a few matters.
I but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its
Locus Standi of Petitioners
I hold that the petitioners have locus standi.
In particular reference to the petitioners in G.R. No. 193036, I think that their being incumbent
Members of the House of Representatives gave them the requisite legal standing to challenge E. O. No.
1 as an impermissible intrusion of the Executive into the domain of the Legislature. Indeed, to the extent
that the powers of Congress are impaired, so is the power of each Member, whose office confers a right
to participate in the exercise of the powers of that institution; consequently, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless substantial injury that a Member
of Congress can assail.1 Moreover, any intrusion of one Department in the domain of another
Department diminishes the enduring idea underlying the incorporation in the Fundamental Law of the
time-honored republican concept of separation of powers.
Justice Mendoza’s main opinion, which well explains why the petitioners have locus standi, is
congruent with my view on the matter that I expressed in De Castro v. Judicial and Bar Council, et al.,2
viz:
Black defines locus standi as "a right of appearance in a court of justice on a given question." In public
or constitutional litigations, the Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to
correct any official action or policy in order to avoid obstructing the efficient functioning of public
officials and offices involved in public service. It is required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional questions."
Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is invalid,
enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that the
person who would assail the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." Vera was followed in Custodio
v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Anti-Chinese
League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality,
can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v.
Dinglasan, the Court liberalized the approach when the cases had "transcendental importance." Some
notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in
the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues
raised by the petition due to their "far-reaching implications," even if the petitioner had no personality to
file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several
notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits
involving the constitutionality or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents the
public in general. Although such petitioner may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to
protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi.
That is not surprising, for even if the issue may appear to concern only the public in general, such
capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,
the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected
by the expenditure of public funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere
public right, however…the people are the real parties…It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury
cannot be denied."
xxx
In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor
of any petitioner when the matter involved has transcendental importance, or otherwise requires a
liberalization of the requirement.
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order
to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein.
We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical
than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc., we pointed out:
"Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by
parties who have been personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest." But even if, strictly
speaking, the petitioners "are not covered by the definition, it is still within the wide discretion of the
Court to waive the requirement and so remove the impediment to its addressing and resolving the
serious constitutional questions raised."
II
The President Has No Power to Create A Public Office
A public office may be created only through any of the following modes, namely: (a) by the
Constitution; or (b) by statute enacted by Congress; or (c) by authority of law (through a valid
delegation of power).3
The power to create a public office is essentially legislative, and, therefore, it belongs to Congress. It is
not shared by Congress with the President, until and unless Congress enacts legislation that delegates a
part of the power to the President, or any other officer or agency.
Yet, the Solicitor General contends that the legal basis for the President’s creation of the Truth
Commission through E. O. No. 1 is Section 31, Chapter 10, Book III, of the Administrative Code of
1987.
Section 31, Chapter 10, Book III, of the Administrative Code of 1987, which reads:
Section 31. Continuing Authority of the President to Reorganize his Office. – The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
1. Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System, by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another;
2. Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and
3. Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.
nowhere refers to the creation of a public office by the President. On the contrary, only a little effort is
needed to know from reading the text of the provision that what has been granted is limited to an
authority for reorganization through any of the modes expressly mentioned in the provision.
The Truth Commission has not existed before E. O. No. 1 gave it life on July 30, 2010. Without a doubt,
it is a new office, something we come to know from the plain words of Section 1 of E. O. No. 1 itself, to
wit:
Section 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION", which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
If the Truth Commission is an entirely new office, then it is not the result of any reorganization
undertaken pursuant to Section 31, Chapter 10, Book III, of the Administrative Code of 1987. Thus, the
contention of the Solicitor General is absolutely unwarranted.
Neither may the creation of the Truth Commission be made to rest for its validity on the fact that the
Constitution, through its Section 17, Article VII, invests the President with the duty to ensure that the
laws are faithfully executed. In my view, the duty of faithful execution of the laws necessarily presumes
the prior existence of a law or rule to execute on the part of the President. But, here, there is no law or
rule that the President has based his issuance of E. O. No. 1.
I cannot also bring myself to accept the notion that the creation of the Truth Commission is traceable to
the President’s power of control over the Executive Department. It is already settled that the President’s
power of control can only mean "the power of an officer to alter, modify, or set aside what a subordinate
officer had done in the performance of his duties, and to substitute the judgment of the former for that of
the latter."4 As such, the creation by the President of a public office like the Truth Commission, without
either a provision of the Constitution or a proper law enacted by
Congress authorizing such creation, is not an act that the power of control includes.
III
Truth Commission Replicates and Usurps the
Duties and Functions of the
Office of the Ombudsman
I find that the Truth Commission replicates and usurps the duties and functions of the Office of the
Ombudsman. Hence, the Truth Commission is superfluous and may erode the public trust and
confidence in the Office of the Ombudsman.
The Office of the Ombudsman is a constitutionally-created quasi-judicial body established to investigate
and prosecute illegal acts and omissions of those who serve in the Government. Section 5, Article XI of
the 1987 Constitution enumerates the powers, functions, and duties of the Office of the Ombudsman,
including the power to:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
xxx
(5) Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents.
xxx
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards of
ethics and efficiency.
The Framers of the Constitution, particularly those of them who composed the Committee on
Accountability of Public Officers, intended the Office of the Ombudsman to be strong and effective, in
order to enable the Office of the Ombudsman to carry out its mandate as the Protector of the People
against the inept, abusive, and corrupt in the Government. This intent is clear from the proceedings on
the establishment of the Office of the Ombudsman, as follows:
SPONSORSHIP SPEECH OF COMMISSIONER MONSOD
MR. MONSOD. Madam President, the Committee on Accountability of Public Officers is respectfully
submitting its proposed Article in the Constitution, and we would just want to make a few remarks on
the articles and sections that we have included.
xxx
With respect to the Sandiganbayan and the Tanodbayan, the Committee decided to make a distinction
between the purely prosecutory function of the Tanodbayan and the function of a pure Ombudsman who
will use the prestige and persuasive powers of his office. To call the attention of government officials to
any impropriety, misconduct or injustice, we conceive the Ombudsman as a champion of the citizens x x
x The concept of the Ombudsman here is admittedly a little bit different from the 1973 concept x x x
The idea here is to address ourselves to the problem that those who have unlawfully benefitted from the
acquisition of public property over the years, through technicalities or practice, have gained immunity
and that, therefore, the right of the people to recover should be respected x x x.5
xxx
SPONSORSHIP SPEECH OF COMMISSIONER COLAYCO
MR. COLAYCO. Thank you, Madam President.
The Committee is proposing the creation of an office which can act in a quick, inexpensive and effective
manner on complaints against the administrative inaction, abuse and arbitrariness of government
officials and employees in dealing with the people. x x x.
xxx
[W]e have proposed as briefly as possible in our resolution an office which will not require any formal
condition for the filing of a complaint. Under our proposal, a person can file a complaint even by
telephone and without much ado, the office of the Ombudsman is under obligation to see to it that the
complaint is acted upon, not merely attended to but acted upon. x x x. If the employee admits that there
was reason behind the complaint, he is told to do what the complainant wanted him to do without much
ado. And then that is followed up by the corresponding report to the department of the government
which has supervision over the employee at fault, with the proper recommendation.
xxx
Under our proposal, the Ombudsman is empowered to investigate, to inquire into and to demand the
production of documents involving transactions and contracts of the government where disbursement of
public funds is reported. x x x [t]he main thrust is action; the disciplinary or punitive remedy is
secondary. On a higher level then, the Ombudsman is going to be the eyes and ears of the people. Where
administrative action demanded is not forthcoming x x x he (Ombudsman) is authorized to make public
the nature of the complaint and the inaction of the official concerned, x x x.6
xxx
SPONSORSHIP SPEECH OF COMMISSIONER NOLLEDO
MR. NOLLEDO. Thank you, Madam President.
xxx
Madam President, the creation of an Ombudsman x x x is in answer to the crying need of our people for
an honest and responsive government. The office of the Ombudsman as proposed by the Committee on
Accountability of Public Officers, x x x is really an institution primarily for the citizens as against the
malpractices and corruption in the government. As an official critic, the Ombudsman will study the law,
the procedure and practice in the government, and make appropriate recommendations for a more
systematic operation of the governmental machinery, free from bureaucratic inconveniences. As a
mobilizer, the Ombudsman will see to it that there be a steady flow of services to the individual
consumers of government. And as a watchdog, the Ombudsman will look after the general, as well as
specific, performances of all government officials and employees so that the law may not be
administered with an evil eye or an uneven hand.7
On the other hand, E. O. No. 1 enumerates the objectives of the creation of the Truth Commission, thus:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
xxx
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public servants;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and
which will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken 5 Record of the Deliberation of the 1986 Constitutional Commission, R.C.C. No. 40, Saturday, July 26,
thereon to ensure that the full measure of justice shall be served without fear or favor. 1986, pp. 265.

xxx 6 Id., at 265-266.

A comparison between the aforequoted objectives of the Office of the Ombudsman and the Truth 7 Id., at 267.
Commission quickly reveals that the Truth Commission is superfluous, because it replicates or imitates
the work of the Office of the Ombudsman. The result is that the Truth Commission can even usurp the
functions, duties, and responsibilities of the Office of the Ombudsman. That usurpation is not a The Lawphil Project - Arellano Law Foundation
desirable result, considering that the public faith and trust in the Office of the Ombudsman, as a
constitutionally-created office imbued with specific powers and duties to investigate and prosecute graft SEPARATE OPINION
and corruption, may be eroded.
PEREZ, J.:
ACCORDINGLY, I vote to grant the petitions.
Executive Order No. 1 of President Benigno S. Aquino III Creating the Philippine Truth Commission of
LUCAS P. BERSAMIN 2010 violates Article XI, Section 5 and Section 7 together with Section 13(1) and (7) and related
Associate Justice provisions in Paragraphs (2), (3), (4), (5) and (6) of the same Section 7, all of the Philippine
Constitution.

Footnotes Particularized, the presidential issuance offends against the independence of the Office of the
Ombudsman; defies the protection against legislation of the mandates of the Ombudsman; and defiles
1 Philippine Constitution Association v. Hon. Enriquez, G.R. Nos. 113105, 113174, 113766 and the bestowal of these mandates by their reappointment to the lesser body. The presidential creation, if
113888, August 19, 1994, 235 SCRA 506. unchecked, would, under the layer of good intentions, sully the integrity of the organic act which, for
law to rule, can be touched by no one except the sovereign people and only by the way and manner they
2 G.R. Nos. 191002, 191032, 191057, 191149, 191342 and 191420, and A.M. No. 10-2-5-SC, March have ordained. This is a democratic original. The sovereign people can, of course, choose to cut the
17, 2010. essential ties, scatter the existing entirety and slay the standing system. That did not happen. The
sovereign elected to stay put; to stay in the present ordinance. Everyone must honor the election. And
3 Secretary of the Department of Transportation and Communications v. Malabot, G.R. No. 138200, there can be no permissible disregard, even in part, of the free and deliberate choice.
February 27, 2002, 378 SCRA 128.
The proposition is truly significant in this study of the questioned executive order. The country has had
4 Mondano v. Silvosa, 97 Phil. 143. a historic revolution that gave the people the chance to right the wrong that shoved the nation on the
verge. A new charter was written. But the topic of Executive Order No. 1, accountability of public
officers, was rewritten and as the same constitutional heading. The injunction that public office is a
public trust, including its meaning and import, was copied from the otherwise discarded document. And
having adopted the objective of the old, the new law assumed likewise the means for the end which are
the anti-graft institutions of 1973,to wit, the special graft court named Sandiganbayan and the
Ombudsman, the corruption investigator and prosecutor then known as the Tanodbayan both of which
were, in the 1973 Charter, ordered created by legislation.
The transplant of idea and mechanism, the adoption of the ends and the assumption of the means of
1973 leads to the definite conclusion that the present Constitution is an affirmance that, driven by the
breadth of corruption in public office needing enduring solutions, there must be no less than a
constitutionally secured institution with impregnable authority to combat corruption. This is the
Ombudsman.
Uy vs. Sandiganbayan,1 chronicled the origins of the Ombudsman. It was there recounted that:
In the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to
constitutionalize the office of the Ombudsman, to give it political independence and adequate powers to
enforce its recommendations. The 1973 Constitution mandated the legislature to create an office of the
Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and
making recommendations, but shall also include the filing and prosecution of criminal, civil or
administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of
the 1973 Constitution read:
Section 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including those in
government-owned or controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding criminal, civil or administrative
case before the proper court of body.
Uy went on to enumerate the implementing presidential decrees, issued as legislation, namely
Presidential Decree No. 1487 creating the Office of the Ombudsman known as the Tanodbayan;
Presidential Decree No. 1607 broadening the authority of the Tanodbayan to investigate administrative
acts of administrative agencies; Presidential Decree 1630 reorganizing the Office of the Tanodbayan
and vesting the powers of the Special Prosecutor in the Tanodbayan himself.
The events at and following the ratification of the 1987 Constitution, as likewise historified in Uy, must
be made part of this writer’s position:
With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present
Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or
manner against public officials or employees of the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations, and to notify the
complainants of the action taken and the result thereof. He possesses the following powers, functions
and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient;
2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or
any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled
corporation with original charter, to perform and expedite any act or duty required by law, or to stop,
prevent and correct any abuse or impropriety in the performance of duties.
3. Direct the officer concerned to take appropriate action against a public official or employee at fault,
and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered into
by his office involving the disbursements or use of public funds or properties, and report any irregularity
to the Commission on Audit for appropriate action.
5. Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents.
6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards of
ethics and efficiency.
8. Promulgate its rules or procedure and exercise such other powers or perform such functions or duties
as may be provided by law.
As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office
of the Special Prosecutor which continued to function and exercise its powers as provided by law,
except those conferred on the Office of the Ombudsman created under the 1987 Constitution.
The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid
down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24,
1987.
In September 1989, Congress passed RA 6770 providing for the functional and structural organization
of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present
Ombudsman not only the duty to receive and relay the people’s grievances, but also the duty to
investigate and prosecute for and in their behalf, civil, criminal and administrative offenses committed
by government officers and employees as embodied in Sections 15 and 11 of the law.2
Clear then from the chronicle, that, as it was at the time of its constitutionalization in 1973, the power of
the Ombudsman "shall not be limited to receiving complaints and making recommendations, but shall
also include the filing and prosecution of criminal xxx cases before the appropriate body xxx." More
importantly, the grant of political independence to the Ombudsman which was the spirit behind the 1973
provisions was specifically stated in the 1987 Constitution. Thus:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon,
Visayas and Mindanao. A separate Deputy for the Military establishment may likewise be appointed.
(Underscoring supplied.)
Of direct relevance and application to the case at bar is the reason behind the constitutionalization of the
Ombudsman. Again, we refer to Uy3 citing Cortez, Redress of Grievance and the Philippine
Ombudsman (Tanodbayan):
In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the
people’s medium for airing grievances and seeking redress against abuses and misconduct in the
government. These offices were conceived with the view of raising the standard in public service and
ensuring integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the
Integrity Board charged with receiving complaints against public officials for acts of corruption,
dereliction of duty and irregularity in office, and conducting a thorough investigation of these
complaints. The Integrity Board was succeeded by several other agencies which performed basically the
same functions of complaints-handling and investigation. These were the Presidential Complaints and
Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration
Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under
President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations
and the Office of the Citizens counselor, both under President Ferdinand Marcos. It was observed,
however, that these agencies failed to realize their objective for they did not enjoy the political
independence necessary for the effective performance of their function as government critic.
Furthermore, their powers extended to no more than fact-finding and recommending.
The lack of political independence of these presidential commissions, to which was attributed their
failure to realize their objectives, was clarified during the deliberations of the Constitutional
Commission on what is now Article XI of the Constitution with, as already observed, the same heading
used in 1973, "Accountability of Public Officials." The Commissioners also alluded to the unsuccessful
presidential attempts.
In his sponsorship speech, Commissioner Colayco, Vice-Chairman of the Committee on Accountability
of Public Officers, articulated:
In 1950, for instance, President Quirino created the Integrity Board in an attempt to formalize the
procedure for executive direction and control of the bureaucracy. This Board lasted for six months.
When President Magsaysay took over the reins of government in 1953, he created the Presidential
Complaints and Action Committee. The primary purpose of this Committee was to expedite action on
complaints received by the Office of the President against the manner in which the officials of the
executive departments and offices were performing the duties entrusted to them by law, or against their
acts, conduct or behavior. xxx. But again politics came in – this office did not last long. Two months
after President Magsaysay’s death, the office was abolished.
Next, President Garcia created his own Presidential Committee on Administration, Performance and
Efficiency [PCAPE]. Again this office did not last long and was replaced by the Presidential Agency on
Reforms and Government Operations or PARGO under the regime of President Marcos.4
As Commissioner Colayco pointed out in the continuation of his sponsorship speech: although these
programs were "good per se," the succeeding Presidents discarded them – as the incoming Presidents
generally tend to abandon the policies and programs of their predecessors – a political barrier to the
eventual success of these bodies. He concluded by saying that "[t]he intention, therefore, of our proposal
is to constitutionalize the office so that it cannot be touched by the Presidents as they come and go."
It may thus be said that the 1987 Constitution completed the Ombudsman’s constitutionalization which
was started in 1973. The past Constitution mandated the creation by the legislature, the National
Security Assembly, later the Batasang Pambansa, of an office of the Ombudsman, which mandate,
incidentally, was given also for the creation of a special court, the Sandiganbayan. The present
Constitution, while allowing the continuation of the Sandiganbayan and leaving its functions and
jurisdiction to provisions "by law," itself created "the independent Office of the Ombudsman" and itself
determined its powers, functions and duties. The independence of the Ombudsman is further
underscored by the constitutional orders that the Ombudsman and his Deputies shall be appointed by the
President from a list prepared by the Judicial and Bar Council which appointments shall require no
confirmation; that the Ombudsman and his Deputies shall have the rank of Chairman and Members,
respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not
be decreased during their term of office; that the Office of the Ombudsman shall enjoy fiscal autonomy
and its approved annual appropriations shall be automatically and regularly released; and that the
Ombudsman may only be removed from office by impeachment.5
It is with the ground and setting just described that Executive Order No. 1 created the Philippine Truth
Commission. Naturally, the Order had to state that the Philippine Truth Commission was created by the
President of the Republic of the Philippines further describing the act as the exercise of his "continuing
authority to reorganize the Office of the President." The Order specified that the budget of the
Commission shall be provided by the Office of the President and even its furniture and equipment will
come from the Office of the President. More significantly, a basic premise of the creation is the
President’s battlecry during his campaign for the Presidency in the last elections "kung walang corrupt,
walang mahirap," which is considered a "solemn pledge that if elected, he would end corruption and the
evil it breeds." So much so that the issuance states that "a comprehensive final report shall be published
upon directive of the President" upon whose directive likewise, interim reports may issue from time to
time.
The Philippine Truth Commission anchored itself on the already constitutionalized principle that public
office is a public trust. It adopted the already defined goal to circle and contain corruption, an enemy of
the good state already identified way back in 1973. What Executive Order No. 1 did was to shorten the
sight and set it from the incumbent’s standpoint. Therefrom, it fixed its target at "reported cases of graft
and corruption involving third level public officers and higher, their co-principals, accomplice and
accessories from the private sector" and further pinpointed the subjects as "third level public officers
during the previous administration." For this commission, the Philippine Truth Commission was
presidentially empowered as an "investigative body" for a thorough fact finding investigation, thereafter
to:
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals, accomplice or accessories, if any, when in
the course of its investigation the Commission finds that there is reasonable ground to believe that they
are liable for graft and corruption under pertinent applicable laws.

Having thus taken account of the foregoing, this writer takes the following position:
1. In light of the constitutionally declared and amply underscored independence of the Office of the
Ombudsman, which declaration is winnowed wisdom from the experienced inherent defects of
presidential creations, so real and true that the Ombudsman’s constitutionalization was adopted to
completion even if from the charter of an overthrown regime, Executive Order No. 1 cannot pass the
present constitutional test. Executive Order No. 1 is unconstitutional precisely because it was issued by
the President. As articulated by Commissioner Colayco of the Commission that resurrected the
Ombudsman, "our proposal is to constitutionalize the office so that it cannot be touched by the
Presidents as they come and go." And as this Court stated, repeating the observation regarding the
erstwhile presidential anti-graft commissions, such commissions failed to realize their objective because
they did not enjoy the political independence necessary for the effective performance of a government
critic.
Relevant too are the words of Commissioner Regalado:
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not
necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of
the Office of the President because it is now a constitutional creation, so that the insidious tentacles of
politics, as has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him
of the opportunity to render service to Juan dela Cruz.6
Verily, the Philippine Truth Commission is a defiance of the constitutional wisdom that established the
politically independent Ombudsman for one of its reasons for being is the very campaign battlecry of
the President "kung walang corrupt, walang mahirap." Not that there is anything wrong with the
political slogan. What is wrong is the pursuit of the pledge outside the limits of the Constitution. What
is wrong is the creation by the President himself of an Ombudsman-like body while there stands
established an Ombudsman, constitutionally created especially because of unsuccessful presidential
antecedents, and thus made independent from presidential prerogative.
2. A simple comparison will show that likeness of the Philippine Truth Commission with the
Ombudsman. No such likeness is permitted by the Constitution.
It can easily be seen that the powers of the Truth Commission to: 1) identify and determine the reported
cases of graft and corruption which it will investigate; and 2) collect, receive, review and evaluate
evidence related to or regarding the cases of large scale corruption which it has chosen to investigate,7
are the same as the power of the Ombudsman to investigate any illegal, unjust, improper, or inefficient
act or omission of any public official, employee, office or agency.8
The authority of the Truth Commission to require any agency, official or employee of the Executive
Branch to produce documents, books, records and other papers9 mirrors the authority of the
Ombudsman to direct concerned government officials to furnish it with copies of documents relating to
contracts or transactions entered into by the latter’s office involving the disbursement or use of public
funds or properties.10
Likewise, the right to obtain information and documents from the Senate, the House of Representatives
and the courts,11 granted by Executive Order No. 1 to the Truth Commission, is analogous to the
license of the Ombudsman to request any government agency for assistance and information and to
examine pertinent records and documents.12
And, the powers of the Truth Commission to invite or subpoena witnesses, take their testimonies,
administer oaths13 and impose administrative disciplinary action for refusal to obey subpoena, take oath
or give testimony14 are parallel to the powers to administer oaths, issue subpoena, take testimony and
punish for contempt or subject to administrative disciplinary action any officer or employee who delays
or refuses to comply with a referral or directive granted by Republic Act (RA) 677015 to the
Ombudsman.
If Executive Order No. 1 is allowed, there will be a violation of Section 7 of Article XI, the essence of
which is that the function and powers (enumerated in Section 13 of Article XI) conferred on the
Ombudsman created under the 1987 Constitution cannot be removed or transferred by law. Section 7
states:
Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It
shall continue to function and exercise its powers as now or hereafter may be provided by law, except
those conferred on the Office of the Ombudsman created under this Constitution.
There is a self-evident reason for the shield against legislation provided by Section 7 in protection of the
functions conferred on the Office of the Ombudsman in Section 13. The Ombudsman is a constitutional
office; its enumerated functions are constitutional powers.
So zealously guarded are the constitutional functions of the Ombudsman that the prohibited assignment
of the conferred powers was mentioned in Section 7 in relation to the authority of the Tanodbayan
which, while renamed as Office of the Special Prosecutor, remained constitutionally recognized and
allowed to "continue to function and exercise its powers as now or hereafter may be provided by law."
The position of the Office of the Special Prosecutor, as a continuing office with powers "as may be
provided by law" vis-à-vis the Ombudsman created by the 1987 Constitution would be unraveled by
subsequent law and jurisprudence. Most apt is Zaldivar vs. Sandiganbayan,16 which said:
Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent Tanodbayan) is
charged with the duty to:
Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
The Constitution likewise provides that:
The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall
continue to function and exercise its powers as now or hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created under this Constitution.
Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent
Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain
powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary
investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of
the Ombudsman. This right to do so was lost effective February 2, 1987. From that time, he has been
divested of such authority.
Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the
Tanodbayan (Ombudsman) and can investigate and prosecute cases only upon the latter’s authority or
orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if
instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims
under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however,
retain it in the Special Prosecutor in connection with the cases he is ordered to investigate.
(Underscoring supplied.)
The ruling was clear: the duty to investigate contained in Section 13(1) having been conferred on the
Office of the Ombudsman, left the then Tanodbayan without authority to conduct preliminary
investigation except upon orders of the Ombudsman. The message was definite. The conferment of
plenary power upon the Ombudsman to investigate "any act or omission of any public official xxx when
such act or omission appears to be illegal, unjust, improper or inefficient" cannot, after 1987 and while
the present Constitution remains, be shared even by the body previously constitutionalized as vested
with such authority, even if there is such assignment "by law."
Indeed, the subsequent law obeyed Section 7 as correctly read in Zaldivar. Thus, in Republic Act No.
6770, an Act Providing For the Functional And Structural Organization of the Office of the Ombudsman
and For Other Purposes, it was made clear in Section 11(3) second sentence that "the Office of the
Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under
the supervision and control of the Ombudsman."
Constitutional history, specific constitutional provisions, jurisprudence and current statute combine to
say that after the ratification of the Constitution in 1987, no body can be given "by law" any of the
powers, functions and duties already conferred on the Ombudsman by Section 13, Article XI of the
Constitution. As already shown, the Truth Commission insofar as concerns the mentioned third level
officers or higher of the previous administration appropriates, not just one but virtually, all of the
powers constitutionally enumerated for the Ombudsman. The violation of Section 7 in relation to
Section 13 of Article XI of the Constitution is evident.
3. No comfort is given to the respondents by the fact that, as mentioned in Honasan II vs. Panel of
Investigating Prosecutors of the Department of Justice,17 there are "jurisprudential declarations" that
the Ombudsman and the Department of Justice (DOJ) have concurrent jurisdiction. Concurrence of
jurisdiction does not allow concurrent exercise of such jurisdiction. Such is so that the Ombudsman Act
specifically states in Section 15 that the Ombudsman has primary jurisdiction over cases cognizable by
the Sandiganbayan – precisely the kind of cases covered by the Philippine Truth Commission – and
proceeds to define "primary jurisdiction" by again, specifically, stating that the Ombudsman "may take
over, at any stage, from any investigation of such cases." This primary jurisdiction was the premise
when a majority of the Court in Honasan discussed the relevance of OMB-DOJ Joint Circular No. 95-
001 (which provides that the preliminary investigation and prosecution of offenses committed by public
officers in relation to office filed with the Office of the Prosecutor shall be "under the control and
supervision of the Office of the Ombudsman") in relation to Sections 2 and 4, Rule 112 of the Revised
Rules on Criminal Procedure on Preliminary Investigation, which concerns the review of the resolution
of the investigating prosecutor in such cases. Honasan would conclude that the authority of the DOJ
prosecutors to conduct preliminary investigation of offenses within the original jurisdiction of the
Sandiganbayan is subject to the qualification:
xxx that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall,
after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for
appropriate action. Also, the prosecutor cannot dismiss the complaint without prior written authority of
the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan
without being deputized by, and without prior written authority of the Ombudsman, or his deputy.18
(Underscoring in the original)
Three separate opinions, two of which were dissents were submitted in Honasan. Justice Vitug said that
the investigating fiscal must be particularly deputized by the Ombudsman and the investigation must be
conducted under the supervision and control of the Ombudsman;19 Justice Ynares-Santiago discussed at
length the concept of primary jurisdiction and took the position that:20
Where the concurrent authority is vested in both the Department of Justice and the Office of the
Ombudsman, the doctrine of primary jurisdiction should operate to restrain the Department of Justice
from exercising its investigative authority if the case will likely be cognizable by the Sandiganbayan. In
such cases, the Office of the Ombudsman should be the proper agency to conduct the preliminary
investigation over such an offense, it being vested with the specialized competence and undoubted
probity to conduct the investigation.
Justice Sandoval-Gutierrez was more straightforward:21
While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code and special
laws, however, this jurisdiction is not plenary or total. Whenever the Constitution or statute vests
jurisdiction over the investigation and prosecution of certain crimes in an office, the DOJ has no
jurisdiction over those crimes. In election offenses, the Constitution vests the power to investigate and
prosecute in the Commission on Elections. In crimes committed by public officers in relation to their
office, the Ombudsman is given by both the Constitution and the statute the same power of investigation
and prosecution. These powers may not be exercised by the DOJ. xxx
At the very least, therefore, the prosecutor, in Sandiganbayan cases must, after investigation transmit the
records and their resolution to the Ombudsman whose prior written authority is needed before the
prosecutor can dismiss a complaint or file an information in which latter instance, a deputization of the
fiscal is additionally needed. Even as this writer submits that the position of the minority in Honasan
hews far better to the Constitution since, as already observed, the Ombudsman’s authority excludes even
the Tanodbayan which used to be the constitutionally recognized holder of the power, the further
submission is that the majority ruling to the effect that the Ombudsman is the supervisor of the
prosecutor who investigates graft in high places, nonetheless illegalizes the Philippine Truth
Commission.
Respondent’s main reliance is that –
Unlike that of the OMB or DOJ which conducts formal investigation as a result of criminal complaints
filed before them, or upon reports, the Truth Commission conducts fact-finding investigation
preliminary to the filing of a complaint that could lead to a criminal investigation.22

If the Philippine Truth Commission would, indeed, conduct only fact-finding investigations preliminary
to a criminal investigation, then the foregoing discussion would truly be irrelevant. The fact, however, is
that the Philippine Truth Commission is, to use the Solicitor General’s phrase a "criminal investigator"
or one who conducts a preliminary investigation for the prosecution of a criminal case.
Detailing the powers and functions of the Philippine Truth Commission, Section 2 of Executive Order
No. 1 says that the Commission shall identify and determine the reported cases of such graft and
corruption which it will investigate (Section 2[a]) and collect, receive, review and evaluate evidence
related to or regarding the cases of large scale corruption which it has chosen to investigate (Sec. 2[b]).
As aforenoted, the Philippine Truth Commission’s power to investigate graft and corruption is no
different from the constitutional power of the Ombudsman to investigate any act of any public official
when such act appears to be illegal, unjust, improper, or inefficient. The Philippine Truth Commission
cannot avoid the comparison by differentiating "formal investigation" or "criminal investigation" which
it says is conducted by the Ombudsman or the DOJ, from the "fact-finding investigation" of the
Philippine Truth Commission. Let us go back to Zaldivar. There it was as much as stated that the power
to investigate mentioned in Section 13(1) of the 1987 Constitution is the authority to conduct
preliminary investigation which authority was removed from the Tandobayan called Special Prosecutor
when it was given to the Ombudsman. This equivalence was affirmed in Acop vs. Office of the
Ombudsman,23 where it was stated:
In view of the foregoing, it is evident that the petitioners have not borne out any distinction between
"the duty to investigate" and "the power to conduct preliminary investigations;" neither have the
petitioners established that the latter remains with the Tanodbayan, now the Special Prosecutor. Thus,
this Court can only reject the petitioners’ first proposition.
Such established definition of "investigation" of graft and corruption cases, especially for the purpose of
determining the authority of one body in relation to another, which is exactly one of the issues in this
case, must be read into Executive Order No. 1. No source citation is needed for the generally accepted
rule that the words used in a legal document, indeed one which is intended to be a law, has the meaning
that is established at the time of the law’s promulgation. "Investigation" in Section 1(a) of Executive
Order No. 1 is the same as preliminary investigation and its conduct by the Truth Commission cannot be
independent of the Ombudsman. The Truth Commission cannot exist outside the Ombudsman.
Executive Order No. 1 so places the Truth Commission and, is, therefore unconstitutional.
Indeed, Executive Order No. 1 itself pronounces that what it empowers the Philippine Truth
Commission with is the authority of preliminary investigation. Section 2(g) of the executive order
states:
Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional authorities, by
means of a special or interim report and recommendation, all evidence on corruption of public officers
and employees and their private sector co-principals, accomplice or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground to believe that they are
liable for graft and corruption under pertinent applicable laws. (Underscoring supplied.)
Investigation to find reasonable ground to believe "that they are liable for graft and corruption under
applicable laws" is preliminary investigation as defined in Rule 112, Section 1 of the Rules of Criminal
Procedure, which states:
Section 1. Preliminary investigation defined; when required. – Preliminary investigation is an inquiry or
proceeding to determine whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof, and should be held for trial.
Moreover, as clearly stated in Section 2(g) of Executive Order No. 1, the Philippine Truth Commission
will be more powerful than the DOJ prosecutors who are required, after their investigation, to transmit
the records and their resolution for appropriate action by the Ombudsman or his deputy, which action is
taken only after a review by the Ombudsman. Section 4 of Rule 112 states that:
xxxx
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation
is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy on the ground that a probable cause exists, the latter may, by himself, file the information against
the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting
another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The same Rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman.
In other words, under existing Rule which follows the statutorily defined primary jurisdiction of the
Ombudsman in obeisance to the constitutional conferment of authority, the Ombudsman reviews and
may reverse or modify the resolution of the investigating prosecutor. In the case of the Philippine Truth
Commission, the Ombudsman not only shares its constitutional power but, over and above this, it is
divested of any and all investigatory power because the Philippine Truth Commission’s finding of
"reasonable ground" is final and unreviewable and is turned over to the Ombudsman solely for
"expeditious prosecution."
4. There is an attempt by the Solicitor General to read around the explicitness of Section 2(g) of
Executive Order No. 1. Thus, skirting the words "for expeditious prosecution" and their obvious
meanings as just discussed, the respondents argue that:
The Truth Commission will submit its recommendation to, among others, the OMB and to the
"appropriate prosecutorial authorities" which then shall exercise their constitutional and statutory
powers and jurisdiction to evaluate the recommendation or endorsements of the Truth Commission.
While findings of the Truth Commission are recommendatory, the facts gathered by the Commission
will decisively aid prosecutorial bodies in supporting possible indictments for violations of anti-graft
laws. Moreover, the policy recommendations to address corruption in government will be invaluable to
the Executive’s goal to realize its anti-corruption policies.24
xxxx
The Reports of the Truth Commission will serve as bases for possible prosecutions and as sources of
policy options xxx.
Fact gathering as basis for preliminary investigation and not as preliminary investigation itself and basis
for prosecution, is, seemingly, the function respondents want to attribute to the Philippine Truth
Commission to escape the obvious unconstitutional conferment of Ombudsman power. That is no route
out of the bind. Fact gathering, fact finding, indeed truth finding is, as much as investigation as
preliminary investigation, also constitutionally conferred on the Ombudsman. Section 12 of Article XI
states:
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the government, or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporations,
and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.
The Ombudsman on its own investigates any act or omission of any public official when such act or
omission appears to be illegal (Section 13(1), Article XI of the Constitution). The power is broad
enough, if not specially intended, to cover fact-finding of the tenor that was given to the Philippine
Truth Commission by Executive Order No. 1 which is:
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate xxx.
And, the objective of the Philippine Truth Commission pointed to by the Solicitor General which is to
make findings for "policy recommendations to address corruption in government" and to serve as
"sources of policy options" is exactly the function described for and ascribed to the Ombudsman in
Section 13(7), Art. XI of the Constitution:
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards of
ethics and efficiency.
Moreover, as at the outset already pointed out, the power of the Philippine Truth Commission to obtain
information and documents from the Congress and the Judiciary [Section 2(c) and (d) of Executive
Order No. 1] is a reproduction of the Ombudsman powers provided for in Section 13 (4) and (5), Article
XI of the Constitution.
Virtually, another Ombudsman is created by Executive Order No. 1. That cannot be permitted as long as
the 1987 Constitution remains as the fundamental law.
5. To excuse the existence of the presidentially created, manned, funded and equipped Truth
Commission side-by-side with the Constitutionally created and empowered Ombudsman, the Solicitor
General provides the very argument against the proposition. In page 75 of his memorandum, the
Solicitor General says that:
The concerned agencies need not wait until the completion of the investigation of the Truth Commission
before they can proceed with their own investigative and prosecutorial functions. Moreover, the Truth
Commission will, from time to time, publish special interim reports and recommendations, over and
above the comprehensive final report. If any, the preliminary reports may aid the concerned agencies in
their investigations and eventually, in the filing of a complaint or information. (Underscoring supplied)
Apparently, the statement proceeds from the position that "the power of the OMB to investigate
offenses involving public officers or employees is not exclusive but is concurrent with other similarly
authorized agencies of the government."25 Without cutting off from the discussions that the
concurrence of jurisdiction of the Ombudsman with any other body should be read to mean that at the
very least any finding by any other body is reviewable by the Ombudsman and that in full obedience to
the Constitution, graft cases against high officials should be investigated alone by or under the aegis of
the Ombudsman, it need only be repeated that concurrence of jurisdiction does not allow concurrent
exercise of jurisdiction. This is the reason why we have the rule that excludes any other concurrently
authorized body from the body first exercising jurisdiction. This is the reason why forum shopping is
malpractice of law.
The truth is, in the intensely political if not partisan matter of "reports of graft and corruption xxx
committed by public officers xxx, if any, during the previous administration," there can only be one
finding of truth. Any addition to that one finding would result in din and confusion, a babel not needed
by a nation trying to be one. And this is why all that fall under the topic accountability of public officers
have been particularized and gathered under one authority - The Ombudsman. This was done by the
Constitution. It cannot be undone as the nation now stands and remains.
WHEREFORE, I vote for the grant of the petition and the declaration of Executive Order No. 1 as
unconstitutional.
JOSE PORTUGAL PEREZ
Associate Justice
Footnotes
1 G.R. No. 105965-70, 354 SCRA 651, 661.
2 Id. at 664-665.
3 Id. at 660-661.
4 Records of the Constitutional Commission Vol. II, 26 July 1986, p. 267.
5 Sec. 9, Sec. 10, Sec. 14 and Sec. 2 of Article XI, 1987 Constitution.
6 Records of the Constitutional Commission, Vol. II, 26 July 1986, p. 296.
7 Section 2(a) and (b), respectively, E.O. No. 1, dated 30 July 2010.
8 Article XI, Section 13(1), 1987 Constitution.
9 Section 2(b), E.O. No. 1, supra note 7.
10 Article XI, Section 13(4), 1987 Constitution.
11 Section 2(c) and (d), E.O. No. 1, supra.
12 Article XI, Section 13(5), 1987 Constitution.
13 Section 2(e), E.O. No. 1, supra.
14 Id., Section 9.
15 The Ombudsman Act of 1989, Section 15(8) and (9) and Section 26(4).
16 G.R. Nos. L-79660-707, 27 April 1988, 160 SCRA 843, 846-847.
17 G.R. No. 159747, 13 April 2004, 427 SCRA 46.
18 Id. at 74.
19 Id. at 77-78.
20 Id. at 86.
21 Id. at 92.
22 Memorandum for Respondent, p. 79.
23 G.R. No. 120422, 248 SCRA 566, 579.
24 Memorandum for Respondents, pp. 73-74.
25 Memorandum for Respondents, p. 82.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO, J.:
The two petitions before this Court seek to declare void Executive Order No. 1, Creating the Philippine
Truth Commission of 2010 (EO 1), for being unconstitutional.
In G.R. No. 192935, petitioner Louis C. Biraogo (Biraogo), as a Filipino citizen and as a taxpayer, filed
a petition under Rule 65 for prohibition and injunction. Biraogo prays for the issuance of a writ of
preliminary injunction and temporary restraining order to declare EO 1 unconstitutional, and to direct
the Philippine Truth Commission (Truth Commission) to desist from proceeding under the authority of
EO 1.
In G.R. No. 193036, petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and
Orlando B. Fua, Sr. (Lagman, et al.), as Members of the House of Representatives, filed a petition under
Rule 65 for certiorari and prohibition. Petitioners Lagman, et al. pray for the issuance of a temporary
restraining order or writ of preliminary injunction to declare void EO 1 for being unconstitutional.
The Powers of the President
Petitioners Biraogo and Lagman, et al. (collectively petitioners) assail the creation of the Truth
Commission. They claim that President Benigno S. Aquino III (President Aquino) has no power to
create the Commission. Petitioners’ objections are mere sound bites, devoid of sound legal reasoning.
On 30 July 2010, President Aquino issued EO 1 pursuant to Section 31, Chapter 10, Title III, Book III
of Executive Order No. 292 (EO 292).1 Section 31 reads:
Section 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies. (Emphasis supplied)
The law expressly grants the President the "continuing authority to reorganize the administrative
structure of the Office of the President," which necessarily includes the power to create offices within
the Office of the President Proper. The power of the President to reorganize the Office of the President
Proper cannot be disputed as this power is expressly granted to the President by law. Pursuant to this
power to reorganize, all Presidents under the 1987 Constitution have created, abolished or merged
offices or units within the Office of the President Proper, EO 1 being the most recent instance. This
Court explained the rationale behind the President’s continuing authority to reorganize the Office of the
President Proper in this way:
x x x The law grants the President this power in recognition of the recurring need of every President to
reorganize his office "to achieve simplicity, economy and efficiency." The Office of the President is the
nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must
be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his
directives and policies. After all, the Office of the President is the command post of the President. This
is the rationale behind the President’s continuing authority to reorganize the administrative structure of
the Office of the President.2 (Emphasis supplied)
The Power To Execute Faithfully the Laws
Section 1, Article VI of the 1987 Constitution states that "[t]he executive power is vested in the
President of the Philippines." Section 17, Article VII of the 1987 Constitution states that "[t]he President
shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed."3 Before he enters office, the President takes the following oath prescribed in
Section 5, Article VII of the 1987 Constitution: "I do solemnly swear that I will faithfully and
conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me
God."4
Executive power is vested exclusively in the President. Neither the Judiciary nor the Legislature can
execute the law. As the Executive, the President is mandated not only to execute the law, but also to
execute faithfully the law.
To execute faithfully the law, the President must first know the facts that justify or require the execution
of the law. To know the facts, the President may have to conduct fact-finding investigations. Otherwise,
without knowing the facts, the President may be blindly or negligently, and not faithfully and
intelligently, executing the law.
Due to time and physical constraints, the President cannot obviously conduct by himself the fact-finding
investigations. The President will have to delegate the fact-finding function to one or more subordinates.
Thus, the President may appoint a single fact-finding investigator, or a collegial body or committee. In
recognizing that the President has the power to appoint an investigator to inquire into facts, this Court
held:
Moreover, petitioner cannot claim that his investigation as acting general manager is for the purpose of
removing him as such for having already been relieved, the obvious purpose of the investigation is
merely to gather facts that may aid the President in finding out why the NARIC failed to attain its
objectives, particularly in the stabilization of the prices of rice and corn. His investigation is, therefore,
not punitive, but merely an inquiry into matters which the President is entitled to know so that he can be Yes, Your Honor.
properly guided in the performance of his duties relative to the execution and enforcement of the laws of
the land. In this sense, the President may authorize the appointment of an investigator of petitioner ASSOCIATE JUSTICE CARPIO:
Rodriguez in his capacity as acting general manager even if under the law the authority to appoint him
and discipline him belongs to the NARIC Board of Directors. The petition for prohibition, therefore, has And it is also inherent in executive power that [the] President has to know the facts so that he can
no merit.5 (Boldfacing and italicization supplied) faithfully execute the laws, correct?

The Power To Find Facts CONGRESSMAN LAGMAN:

The power to find facts, or to conduct fact-finding investigations, is necessary and proper, and thus Yes, Your Honor, in that context (interrupted).
inherent in the President’s power to execute faithfully the law. Indeed, the power to find facts is inherent
not only in Executive power, but also in Legislative as well as Judicial power. The Legislature cannot ASSOCIATE JUSTICE CARPIO:
sensibly enact a law without knowing the factual milieu upon which the law is to operate. Likewise, the
courts cannot render justice without knowing the facts of the case if the issue is not purely legal. So (interrupted)
Petitioner Lagman admitted this during the oral arguments:
CONGRESSMAN LAGMAN:
ASSOCIATE JUSTICE CARPIO:
Your Honor, in that context, the legislature has the inherent power to make factual inquiries in aid of
x x x The power to fact-find is inherent in the legislature, correct? I mean, before you can pass a law, legislation. In the case of the Supreme Court and the other courts, the power to inquire into facts [is] in
you must determine the facts. So, it’s essential that you have to determine the facts to pass a law, and aid of adjudication. And in the case of the Office of the President, or the President himself [has the
therefore, the power to fact-find is inherent in legislative power, correct? power] to inquire into the facts in order to execute the laws.6

CONGRESSMAN LAGMAN: Being an inherent power, there is no need to confer explicitly on the President, in the Constitution or in
the statutes, the power to find facts. Evangelista v. Jarencio7 underscored the importance of the power
Yes, Your Honor. to find facts or to investigate:

ASSOCIATE JUSTICE CARPIO: It has been essayed that the lifeblood of the administrative process is the flow of fact[s], the gathering,
the organization and the analysis of evidence. Investigations are useful for all administrative functions,
And it is also inherent in judicial power, we must know the facts to render a decision, correct? not only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and
directing, for determining general policy, for recommending legislation, and for purposes no more
CONGRESSMAN LAGMAN: specific than illuminating obscure areas to find out what if anything should be done. An administrative
agency may be authorized to make investigations, not only in proceedings of a legislative or judicial
nature, but also in proceedings whose sole purpose is to obtain information upon which future action of
a legislative or judicial nature may be taken and may require the attendance of witnesses in proceedings
of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to
report findings to appropriate bodies and make recommendations for actions. (Emphasis supplied)
The Power To Create A Public Office
The creation of a public office must be distinguished from the creation of an ad hoc fact-finding public
body.
The power to create a public office is undeniably a legislative power. There are two ways by which a
public office is created: (1) by law, or (2) by delegation of law, as found in the President’s authority to
reorganize his Office. The President as the Executive does not inherently possess the power to
reorganize the Executive branch. However, the Legislature has delegated to the President the power to
create public offices within the Office of the President Proper, as provided in Section 31(1), Chapter 10,
Title III, Book III of EO 292.
Thus, the President can create the Truth Commission as a public office in his Office pursuant to his
power to reorganize the Office of the President Proper.8 In such a case, the President is exercising his
delegated power to create a public office within the Office of the President Proper. There is no dispute
that the President possesses this delegated power.
In the alternative, the President can also create the Truth Commission as an ad hoc body to conduct a
fact-finding investigation pursuant to the President’s inherent power to find facts as basis to execute
faithfully the law. The creation of such ad hoc fact-finding body is indisputably necessary and proper
for the President to execute faithfully the law. In such a case, members of the Truth Commission may be
appointed as Special Assistants or Advisers of the President,9 and then assigned to conduct a fact-
finding investigation. The President can appoint as many Special Assistants or Advisers as he may
need.10 There is no public office created and members of the Truth Commission are incumbents already
holding public office in government. These incumbents are given an assignment by the President to be
members of the Truth Commission. Thus, the Truth Commission is merely an ad hoc body assigned to
conduct a fact-finding investigation.
The creation of ad hoc fact-finding bodies is a routine occurrence in the Executive and even in the
Judicial branches of government. Whenever there is a complaint against a government official or
employee, the Department Secretary, head of agency or head of a local government unit usually creates
a fact-finding body whose members are incumbent officials in the same department, agency or local
government unit.11 This is also true in the Judiciary, where this Court routinely appoints a fact-finding
investigator, drawn from incumbent Judges or Justices (or even retired Judges or Justices who are
appointed consultants in the Office of the Court Administrator), to investigate complaints against
incumbent officials or employees in the Judiciary.
The creation of such ad hoc investigating bodies, as well as the appointment of ad hoc investigators,
does not result in the creation of a public office. In creating ad hoc investigatory bodies or appointing ad
hoc investigators, executive and judicial officials do not create public offices but merely exercise a
power inherent in their primary constitutional or statutory functions, which may be to execute the law,
to exercise disciplinary authority, or both. These fact-finding bodies and investigators are not permanent
bodies or functionaries, unlike public offices or their occupants. There is no separate compensation,
other than per diems or allowances, for those designated as members of ad hoc investigating bodies or
as ad hoc investigators.
Presidential Decree No. 1416 (PD 1416) cannot be used as basis of the President’s power to reorganize
his Office or create the Truth Commission. PD 1416, as amended, delegates to the President "continuing
authority to reorganize the National Government,"12 which means the Executive, Legislative and
Judicial branches of government, in addition to the independent constitutional bodies. Such delegation
can exist only in a dictatorial regime, not under a democratic government founded on the separation of
powers. The other powers granted to the President under PD 1416, as amended, like the power to
transfer appropriations without conditions and the power to standardize salaries, are also contrary to the
provisions of the 1987 Constitution.13 PD 1416, which was promulgated during the Martial Law regime
to facilitate the transition from the presidential to a parliamentary form of government under the 1973
Constitution,14 is now functus officio and deemed repealed upon the ratification of the 1987
Constitution.

The President’s power to create ad hoc fact-finding bodies does not emanate from the President’s power
of control over the Executive branch. The President’s power of control is the power to reverse, revise or
modify the decisions of subordinate executive officials, or substitute his own decision for that of his
subordinate, or even make the decision himself without waiting for the action of his subordinate.15 This
power of control does not involve the power to create a public office. Neither does the President’s
power to find facts or his broader power to execute the laws give the President the power to create a
public office.1avvphi1 The President can exercise the power to find facts or to execute the laws without
creating a public office.
Objections to EO 1
There Is No Usurpation of Congress’
Power To Appropriate Funds
Petitioners Lagman, et al. argue that EO 1 usurps the exclusive power of Congress to appropriate funds
because it gives the President the power to appropriate funds for the operations of the Truth
Commission. Petitioners Lagman, et al. add that no particular source of funding is identified and that the
amount of funds to be used is not specified.
Congress is exclusively vested with the "power of the purse," recognized in the constitutional provision
that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by
law."16 The specific purpose of an appropriation law is to authorize the release of unappropriated public
funds from the National Treasury.17
Section 11 of EO 1 merely states that "the Office of the President shall provide the necessary funds for
the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties
and responsibilities as effectively, efficiently, and expeditiously as possible." Section 11 does not direct
the National Treasurer to release unappropriated funds in the National Treasury to finance the
operations of the Truth Commission. Section 11 does not also say that the President is appropriating, or
is empowered to appropriate, funds from the unappropriated funds in the National Treasury. Clearly,
there is absolutely no language in EO 1 appropriating, or empowering the President to appropriate,
unappropriated funds in the National Treasury.
Section 11 of EO 1 merely states that the Office of the President shall fund the operations of the Truth
Commission. Under EO 1, the funds to be spent for the operations of the Truth Commission have
already been appropriated by Congress to the Office of the President under the current General
Appropriations Act. The budget for the Office of the President under the annual General Appropriations
Act always contains a Contingent Fund18 that can fund the operations of ad hoc investigating bodies
like the Truth Commission. In this case, there is no appropriation but merely a disbursement by the
President of funds that Congress had already appropriated for the Office of the President.
The Truth Commission Is Not
A Quasi-Judicial Body
While petitioners Lagman, et al. insist that the Truth Commission is a quasi-judicial body, they admit
that there is no specific provision in EO 1 that states that the Truth Commission has quasi-judicial
powers.19
ASSOCIATE JUSTICE CARPIO:
Okay. Now. Let’s tackle that issue. Where in the Executive Order is it stated that [the Truth
Commission] has a quasi-judicial power? Show me the provision.
CONGRESSMAN LAGMAN:
There is no exact provision.
There is no language in EO 1 granting the Truth Commission quasi-judicial power, whether expressly or
impliedly, because the Truth Commission is not, and was never intended to be, a quasi-judicial body.
The power of the President to create offices within the Office of the President Proper is a power to
create only executive or administrative offices, not quasi-judicial offices or bodies. Undeniably, a quasi-
judicial office or body can only be created by the Legislature. The Truth Commission, as created under
EO 1, is not a quasi-judicial body and is not vested with any quasi-judicial power or function.
The exercise of quasi-judicial functions involves the determination, with respect to the matter in
controversy, of what the law is, what the legal rights and obligations of the contending parties are, and
based thereon and the facts obtaining, the adjudication of the respective rights and obligations of the
parties.20 The tribunal, board or officer exercising quasi-judicial functions must be clothed with the
power to pass judgment on the controversy.21 In short, quasi-judicial power is the power of an
administrative body to adjudicate the rights and obligations of parties under its jurisdiction in a manner
that is final and binding, unless there is a proper appeal. In the recent case of Bedol v. Commission on
Elections,22 this Court declared:
Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative
agency to adjudicate the rights of persons before it. It is the power to hear and determine questions of
fact to which the legislative policy is to apply and to decide in accordance with the standards laid down
by the law itself in enforcing and administering the same law. The administrative body exercises its
quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or
administrative nature, where the power to act in such manner is incidental to or reasonably necessary for
the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-
judicial functions the administrative officers or bodies are required to investigate facts or ascertain the
existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their
official action and exercise of discretion in a judicial nature.23 (Emphasis supplied)
Under EO 1, the Truth Commission primarily investigates reports of graft and corruption and
recommends the appropriate actions to be taken. Thus, Section 2 of EO 1 states that the Truth
Commission is "primarily tasked to conduct a thorough fact-finding investigation of reported cases of
graft and corruption and thereafter submit its findings and recommendations to the President, Congress
and the Ombudsman." The President, Congress and the Ombudsman are not bound by the findings and
recommendations of the Truth Commission. Neither are the parties subject of the fact-finding
investigation bound by the findings and recommendations of the Truth Commission.
Clearly, the function of the Truth Commission is merely investigative and recommendatory in nature.
The Truth Commission has no power to adjudicate the rights and obligations of the persons who come
before it. Nothing whatsoever in EO 1 gives the Truth Commission quasi-judicial power, expressly or
impliedly. In short, the Truth Commission is not a quasi-judicial body because it does not exercise the
quasi-judicial power to bind parties before it with its actions or decisions.
The creation of the Truth Commission has three distinct purposes since it is tasked to submit its findings
to the President, Congress and the Ombudsman. The Truth Commission will submit its findings to the
President so that the President can faithfully execute the law. For example, the Truth Commission may
recommend to the President that Department Secretaries should personally approve disbursements of
funds in certain contracts or projects above a certain amount and not delegate such function to their
Undersecretaries.24 The Truth Commission will also submit its findings to Congress for the possible
enactment by Congress of remedial legislation. For example, Congress may pass a law penalizing
Department Secretaries who delegate to their Undersecretaries the approval of disbursement of funds
contrary to the directive of the President. Lastly, the Truth Commission will submit its findings to the
Ombudsman for possible further investigation of those who may have violated the law. The
Ombudsman may either conduct a further investigation or simply ignore the findings of the Truth
Commission. Incidentally, the Ombudsman has publicly stated that she supports the creation of the
Truth Commission and that she will cooperate with its investigation.25
That EO 1 declares that the Truth Commission "will act as an independent collegial body" cannot
invalidate EO 1. This provision merely means that the President will not dictate on the members of the
Truth Commission on what their findings and recommendations should be. The Truth Commission is
free to come out with its own findings and recommendations, free from any interference or pressure
from the President. Of course, as EO 1 expressly provides, the President, Congress and the Ombudsman
are not bound by such findings and recommendations.
There Is No Usurpation of the
Powers of the Ombudsman
Petitioners Lagman, et al. argue that since the Ombudsman has the exclusive jurisdiction to investigate
graft and corruption cases, the Truth Commission encroaches on this exclusive power of the
Ombudsman.
There are three types of fact-finding investigations in the Executive branch. First, there is the purely
fact-finding investigation the purpose of which is to establish the facts as basis for future executive
action, excluding the determination of administrative culpability or the determination of probable cause.
Second, there is the administrative investigation to determine administrative culpabilities of public
officials and employees. Third, there is the preliminary investigation whose sole purpose is to determine
probable cause as to the existence and perpetrator of a crime. These three types of fact-finding
investigations are separate and distinct investigations.
A purely fact-finding investigation under the Office of the President is
the first type of fact-finding investigation. Such fact-finding
investigation has three distinct objectives. The first is to improve
administrative procedures and efficiency, institute administrative
measures to prevent corruption, and recommend policy options − all with
the objective of enabling the President to execute faithfully the law. The
second is to recommend to Congress possible legislation in response to
new conditions brought to light in the fact-finding investigation. The
third is to recommend to the head of office the filing of a formal
administrative charge, or the filing of a criminal complaint before the
prosecutor.
Under the third objective, the fact-finding investigation is merely a gathering and evaluation of facts to
determine whether there is sufficient basis to proceed with a formal administrative charge, or the filing
of a criminal complaint before the prosecutor who will conduct a preliminary investigation. This purely
fact-finding investigation does not determine administrative culpability or the existence of probable
cause. The fact-finding investigation comes before an administrative investigation or preliminary
investigation, where administrative culpability or probable cause, respectively, is determined.
On the other hand, an administrative investigation follows, and takes up, the recommendation of a
purely fact-finding investigation to charge formally a public official or employee for possible
misconduct in office. Similarly, a preliminary investigation is an inquiry to determine whether there is
sufficient ground to believe that a crime has been committed and that the respondent is probably guilty
of such crime, and should be held for trial.26 A preliminary investigation’s sole purpose is to determine
whether there is probable cause to charge a person for a crime.
Section 15 of Republic Act No. 677027 provides:
SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following
powers, functions and duties: x x x
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in
the exercise of his primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases; x x x (Emphasis supplied)
The Ombudsman has "primary jurisdiction over cases cognizable by the Sandiganbayan." The cases
cognizable by the Sandiganbayan are criminal cases as well as quasi-criminal cases like the forfeiture of
unexplained wealth.28 "[I]n the exercise of this primary jurisdiction" over cases cognizable by the
Sandiganbayan, the Ombudsman "may take over x x x the investigation of such cases" from any
investigatory agency of the Government. The cases covered by the "primary jurisdiction" of the
Ombudsman are criminal or quasi-criminal cases but not administrative cases. Administrative cases,
such as administrative disciplinary cases, are not cognizable by the Sandiganbayan. With more reason,
purely fact-finding investigations conducted by the Executive branch are not cognizable by the
Sandiganbayan.
Purely fact-finding investigations to improve administrative procedures and efficiency, to institute
administrative measures to prevent corruption, to provide the President with policy options, to
recommend to Congress remedial legislation, and even to determine whether there is basis to file a
formal administrative charge against a government official or employee, do not fall under the "primary
jurisdiction" of the Ombudsman. These fact-finding investigations do not involve criminal or quasi-
criminal cases cognizable by the Sandiganbayan.
If the Ombudsman has the power to take-over purely fact-finding investigations from the President or
his subordinates, then the President will become inutile. The President will be wholly dependent on the
Ombudsman, waiting for the Ombudsman to establish the facts before the President can act to execute
faithfully the law. The Constitution does not vest such power in the Ombudsman. No statute grants the
Ombudsman such power, and if there were, such law would be unconstitutional for usurping the power
of the President to find facts necessary and proper to his faithful execution of the law.
Besides, if the Ombudsman has the exclusive power to conduct fact-finding investigations, then even
the Judiciary and the Legislature cannot perform their fundamental functions without the action or
approval of the Ombudsman. While the Constitution grants the Office of the Ombudsman the power to
"[i]nvestigate on its own x x x any act or omission of any public official, employee, office or agency,"29
such power is not exclusive. To hold that such investigatory power is exclusive to the Ombudsman is to
make the Executive, Legislative and Judiciary wholly dependent on the Ombudsman for the
performance of their Executive, Legislative and Judicial functions.
Even in investigations involving criminal and quasi-criminal cases cognizable by the Sandiganbayan,
the Ombudsman does not have exclusive jurisdiction to conduct preliminary investigations. In Honasan
II v. The Panel of Investigating Prosecutors of the Department of Justice,30 this Court held:
In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate
offenses committed by public officers or employees. The authority of the Ombudsman to investigate
offenses involving public officers or employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its
primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of such cases.31 (Emphasis supplied)
To repeat, Honasan II categorically ruled that "the Constitution, Section 15 of the Ombudsman Act of
1989 and Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman exclusive
jurisdiction to investigate offenses committed by public officials and employees."
The concurrent jurisdiction of the Ombudsman refers to the conduct of a preliminary investigation to
determine if there is probable cause to charge a public officer or employee with an offense, not to the
conduct of a purely administrative fact-finding investigation that does not involve the determination of
probable cause.32 The Truth Commission is a purely fact-finding body that does not determine the
existence of probable cause. There is no accused or even a suspect before the Truth Commission, which
merely conducts a general inquiry on reported cases of graft and corruption. No one will even be under
custodial investigation before the Truth Commission.33 Thus, the claim that the Truth Commission is
usurping the investigatory power of the Ombudsman, or of any other government official, has no basis
whatsoever.
In criminal fact-finding investigations, the law expressly vests in the Philippine National Police (PNP)
and the National Bureau of Investigation (NBI) investigatory powers. Section 24 of Republic Act No.
697534 provides:
Section 24. Powers and Functions – The PNP shall have the following powers and duties:
(a) x x x
xxx
(c) Investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice, and
assist in their prosecution;
x x x. (Emphasis supplied)
Section 1 of Republic Act No. 157 also provides:
Section 1. There is hereby created a Bureau of Investigation under the Department of Justice which shall
have the following functions:
(a) To undertake investigation of crimes and other offenses against the laws of the Philippines, upon its
own initiative and as public interest may require;
x x x. (Emphasis supplied)
The PNP and the NBI are under the control of the President. Indisputably, the President can at any time
direct the PNP and NBI, whether singly, jointly or in coordination with other government bodies, to
investigate possible violations of penal laws, whether committed by public officials or private
individuals. To say that the Ombudsman has the exclusive power to conduct fact-finding investigations
of crimes involving public officials and employees is to immobilize our law-enforcement agencies and
allow graft and corruption to run riot. The fact-finding arm of the Department of Justice (DOJ) to
investigate crimes, whether committed by public or private parties, is the NBI.35 The DOJ Proper does
not conduct fact-finding investigations of crimes, but only preliminary investigations.
The Truth Commission
Has Subpoena Powers
Section 2 of EO 1 provides that the Truth Commission shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of EO 292, which reads:
Sec. 37. Powers Incidental to Taking of Testimony. - When authority to take testimony or receive
evidence is conferred upon any administrative officer or any non-judicial person, committee, or other
body, such authority shall include the power to administer oaths, summon witnesses, and require the
production of documents by a subpoena duces tecum. (Emphasis supplied)
Section 2(e) of EO 1 confers on the Truth Commission the power to "[i]nvite or subpoena witnesses and
take their testimonies and for that purpose, administer oaths or affirmation as the case may be." Thus,
the Truth Commission, a body authorized to take testimony, can administer oaths and issue subpoena
and subpoena duces tecum pursuant to Section 37, Chapter 9, Book I of EO 292. In fact, this power to
administer oaths and to issue subpoena and subpoena duces tecum is a power of every administrative
fact-finding investigative body created in the Executive, Legislative or Judicial branch. Section 37,
Chapter 9, Book I of EO 292 grants such power to every fact-finding body so created.
The Truth Commission
Has No Contempt Powers
Section 9 of EO 1 provides:
Section 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce
documents for inspection, when required, shall be subject to administrative disciplinary action. Any
private person who does the same may be dealt with in accordance with law.
There is no provision in EO 1 that gives the Truth Commission the power to cite persons for contempt.
As explained by Solicitor General Jose Anselmo I. Cadiz, if the person who refuses to obey the
subpoena, take oath or give testimony is a public officer, he can be charged with "defiance of a lawful
order,"36 which should mean insubordination37 if his superior had ordered him to obey the subpoena of
the Truth Commission. If the person is not a public officer or employee, he can only be dealt with in
accordance with law, which should mean that the Truth Commission could file a petition with the
proper court to cite such private person in contempt pursuant to Sections 138 and 939 of Rule 21 of the
Rules of Court.
However, the mere fact that the Truth Commission, by itself, has no coercive power to compel any one,
whether a government employee or a private individual, to testify before the Commission does not
invalidate the creation by the President, or by the Judiciary or Legislature, of a purely administrative
fact-finding investigative body. There are witnesses who may voluntarily testify, and bring relevant
documents, before such fact-finding body. The fact-finding body may even rely only on official records
of the government. To require every administrative fact-finding body to have coercive or contempt
powers is to invalidate all administrative fact-finding bodies created by the Executive, Legislative and
Judicial branches of government.

The Name "Truth Commission"
Cannot Invalidate EO 1
There is much ado about the words "Truth Commission" as the name of the fact-finding body created
under EO 1. There is no law or rule prescribing how a fact-finding body should be named. In fact, there
is no law or rule prescribing how permanent government commissions, offices, or entities should be
named.40 There is also no law or rule prohibiting the use of the words "Truth Commission" as the name
of a fact-finding body. Most fact-finding bodies are named, either officially or unofficially, after the
chairperson of such body, which by itself, will not give any clue as to the nature, powers or functions of
the body. Thus, the name Feliciano Commission or Melo Commission, by itself, does not indicate what
the commission is all about. Naming the present fact-finding body as the "Truth Commission" is more
descriptive than naming it the Davide Commission after the name of its chairperson.
The name of a government commission, office or entity does not determine its nature, powers or
functions. The specific provisions of the charter creating the commission, office or entity determine its
nature, powers or functions. The name of the commission, office or entity is not important and may even
be misleading. For example, the term Ombudsman connotes a male official but no one in his right mind
will argue that a female cannot be an Ombudsman. In fact, the present Ombudsman is not a man but a
woman. In the private sector, the name of a corporation may not even indicate what the corporation is
all about. Thus, Apple Corporation is not in the business of selling apples or even oranges. An
individual may be named Honesto but he may be anything but honest. All this tells us that in
determining the nature, powers or functions of a commission, office or entity, courts should not be
fixated by its name but should examine what it is tasked or empowered to do.
In any event, there is nothing inherently wrong in the words "Truth Commission" as the name of a fact-
finding body. The primary purpose of every fact-finding body is to establish the facts. The facts lead to,
or even constitute, the truth. In essence, to establish the facts is to establish the truth. Thus, the name
"Truth Commission" is as appropriate as the name "Fact-Finding Commission." If the name of the
commission created in EO 1 is changed to "Fact-Finding Commission," the nature, powers and
functions of the commission will remain exactly the same. This simply shows that the name of the
commission created under EO 1 is not important, and any esoteric discourse on the ramifications of the
name "Truth Commission" is merely an academic exercise. Of course, the name "Truth Commission" is
more appealing than the worn-out name "Fact-Finding Commission." Courts, however, cannot
invalidate a law or executive issuance just because its draftsman has a flair for catchy words and a
disdain for trite ones. Under the law, a fact-finding commission by any other name is a fact-finding
commission.41
The Public Will Not Be Deceived that
Findings of Truth Commission Are Final
The fear that the public will automatically perceive the findings of the Truth Commission as the "truth,"
and any subsequent contrary findings by the Ombudsman or Sandiganbayan as the "untruth," is
misplaced. First, EO 1 is unequivocally clear that the findings of the Truth Commission are neither final
nor binding on the Ombudsman, more so on the Sandiganbayan which is not even mentioned in EO 1.
No one reading EO 1 can possibly be deceived or misled that the Ombudsman or the Sandiganbayan are
bound by the findings of the Truth Commission.
Second, even if the Truth Commission is renamed the "Fact-Finding Commission," the same argument
can also be raised — that the public may automatically perceive the findings of the Fact-Finding
Commission as the unquestionable "facts," and any subsequent contrary findings by the Ombudsman or
Sandiganbayan as "non-factual." This argument is bereft of merit because the public can easily read and
understand what EO 1 expressly says — that the findings of the Truth Commission are not final or
binding but merely recommendatory.
Third, the Filipino people are familiar with the Agrava Board,42 a fact-finding body that investigated
the assassination of former Senator Benigno S. Aquino, Jr. The people know that the findings of the
Agrava Board were not binding on the then Tanodbayan or the Sandiganbayan. The Agrava Board
recommended for prosecution 26 named individuals43 but the Tanodbayan charged 40 named
individuals44 before the Sandiganbayan. On the other hand, the Sandiganbayan convicted only 16 of
those charged by the Tanodbayan and acquitted 20 of the accused.45
Fourth, as most Filipinos know, many persons who undergo preliminary investigation and are charged
for commission of crimes are eventually acquitted by the trial courts, and even by the appellate courts.
In short, the fear that the public will be misled that the findings of the Truth Commission is the unerring
gospel truth is more imagined than real.
EO 1 Does Not Violate
The Equal Protection Clause
Petitioners Lagman, et al. argue that EO 1 violates the equal protection clause because the investigation
of the Truth Commission is limited to alleged acts of graft and corruption during the Arroyo
administration.
A reading of Section 17 of EO 1 readily shows that the Truth Commission’s investigation is not limited
to the Arroyo administration. Section 17 of EO 1 provides:
Section 17. Special Provision Concerning Mandate. If and when in the judgment of the President there
is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be extended accordingly by way of a supplemental Executive Order. (Emphasis supplied)
The President can expand the mandate of the Truth Commission to investigate alleged graft and
corruption cases of other past administrations even as its primary task is to investigate the Arroyo
administration. EO 1 does not confine the mandate of the Truth Commission solely to alleged acts of
graft and corruption during the Arroyo Administration.
Section 17 of EO 1 is the same as Section 2(b) of Executive Order No. 1 dated 28 February 1986 issued
by President Corazon Aquino creating the Presidential Commission on Good Government (PCGG
Charter). Section 2(b) of the PCGG Charter provides:
Section 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates xxx.
(b) The investigation of such cases of graft and corruption as the President may assign to the
Commission from time to time.
x x x x . (Emphasis supplied)
Thus, under Section 2(b) of the PCGG Charter, the President can expand the investigation of the PCCG
even as its primary task is to recover the ill-gotten wealth of the Marcoses and their cronies. Both EO 1
and the PCGG Charter have the same provisions on the scope of their investigations. Both the Truth
Commission and the PCGG are primarily tasked to conduct specific investigations, with their mandates
subject to expansion by the President from time to time. This Court has consistently upheld the
constitutionality of the PCGG Charter.46
Like Section 2(b) of the PCGG Charter, Section 17 of EO 1 merely prioritizes the investigation of acts
of graft and corruption that may have taken place during the Arroyo administration. If time allows, the
President may extend the mandate of the Truth Commission to investigate other administrations prior to
the Arroyo administration. The prioritization of such work or assignment does not violate the equal
protection clause because the prioritization is based on reasonable grounds.
First, the prescriptive period for the most serious acts of graft and corruption under the Revised Penal
Code is 20 years,47 15 years for offenses punishable under the Anti-Graft and Corrupt Practices Act,48
and 12 years for offenses punishable under special penal laws that do not expressly provide for
prescriptive periods.49 Any investigation will have to focus on alleged acts of graft and corruption
within the last 20 years, almost half of which or 9 years is under the Arroyo administration.
While it is true that the prescriptive period is counted from the time of discovery of the offense, the
"reported cases"50 of "large scale corruption"51 involving "third level public officers and higher,"52
which the Truth Commission will investigate, have already been widely reported in media, and many of
these reported cases have even been investigated by the House of Representatives or the Senate. Thus,
the prescriptive periods of these "reported cases" of "large scale corruption" may have already began to
run since these anomalies are publicly known and may be deemed already discovered.53 These
prescriptive periods refer to the criminal acts of public officials under penal laws, and not to the
recovery of ill-gotten wealth which under the Constitution is imprescriptible.54
Second, the Marcos, Ramos and Estrada administrations were already investigated by their successor
administrations. This alone is incontrovertible proof that the Arroyo administration is not being singled
out for investigation or prosecution.
Third, all the past Presidents, with the exception of Presidents Ramos, Estrada and Arroyo, are already
dead. The possible witnesses to alleged acts of graft and corruption during the Presidencies of the
deceased presidents may also be dead or unavailable. In fact, the only living President whose
administration has not been investigated by its successor administration is President Arroyo.
Fourth, the more recent the alleged acts of graft and corruption, the more readily available will be the
witnesses, and the more easily the witnesses can recall with accuracy the relevant events. Inaction over
time means the loss not only of witnesses but also of material documents, not to mention the loss of
public interest.
Fifth, the 29-month time limit given to the Truth Commission prevents it from investigating other past
administrations.55 There is also the constraint on the enormous resources needed to investigate other
past administrations. Just identifying the transactions, locating relevant documents, and looking for
witnesses would require a whole bureaucracy.
These are not only reasonable but also compelling grounds for the Truth Commission to prioritize the
investigation of the Arroyo administration. To prioritize based on reasonable and even compelling
grounds is not to discriminate, but to act sensibly and responsibly.
In any event, there is no violation of the equal protection clause just because the authorities focus their
investigation or prosecution on one particular alleged law-breaker, for surely a person accused of
robbery cannot raise as a defense that other robbers like him all over the country are not being
prosecuted.56 By the very nature of an investigation or prosecution, there must be a focus on particular
act or acts of a person or a group of persons.
Indeed, almost every fact-finding body focuses its investigation on a specific subject matter ─ whether it
be a specific act, incident, event, situation, condition, person or group of persons. This specific focus
results from the nature of a fact-finding investigation, which is a necessary and proper response to a
specific compelling act, incident, event, situation, or condition involving a person or group of persons.
Thus, the fact-finding commissions created under the previous Arroyo administration had specific
focus: the Feliciano Commission focused on the Oakwood mutiny, the Melo Commission focused on
extra-judicial killings, and the Zeñarosa Commission focused on private armies.
Significantly, the PCGG Charter even specifies the persons to be investigated for the recovery of ill-
gotten wealth. Thus, Section 2(a) of the PCGG Charter provides:
Section 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue advantage
of their public office and/or using their powers, authority, influence, connections or relationship.
(b) x x x . (Emphasis supplied)
The PCGG Charter has survived all constitutional attacks before this Court, including the claim that its
Section 2(a) violates the equal protection clause. In Virata v. Sandiganbayan,57 this Court categorically
ruled that the PCGG Charter "does not violate the equal protection clause and is not a bill of attainder or
an ex post facto law."58
This specific focus of fact-finding investigations is also true in the United States. Thus, the Roberts
Commission59 focused on the Pearl Harbor attack, the Warren Commission60 focused on the
assassination of President John F. Kennedy, and the 9/11 Commission61 focused on the 11 September
2001 terrorist attacks on the United States. These fact-finding commissions were created with specific
focus to assist the U.S. President and Congress in crafting executive and legislative responses to specific
acts or events of grave national importance. Clearly, fact-finding investigations by their very nature
must have a specific focus.
Graft and corruption cases before the Arroyo administration have already been investigated by the
previous administrations. President Corazon Aquino created the Presidential Commission on Good
Government to recover the ill-gotten wealth of the Marcoses and their cronies.62 President Joseph
Estrada created the Saguisag Commission to investigate the Philippine Centennial projects of President
Fidel Ramos.63 The glaring acts of corruption during the Estrada administration have already been
investigated resulting in the conviction of President Estrada for plunder. Thus, it stands to reason that
the Truth Commission should give priority to the alleged acts of graft and corruption during the Arroyo
administration.
The majority opinion claims that EO 1 violates the equal protection clause because the Arroyo
administration belongs to a class of past administrations and the other past administrations are not
included in the investigation of the Truth Commission. Thus, the majority opinion states:
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class,
that is, a class of past administrations. It is not a class of its own. Not to include past administrations
similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.
xxx
x x x The PTC [Philippine Truth Commission], to be true to its mandate of searching the truth, must not
exclude the other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional.
xxx
x x x To exclude the earlier administrations in the guise of "substantial distinctions" would only confirm
the petitioners' lament that the subject executive order is only an "adventure in partisan hostility." x x x.
xxx
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions to the number included within a
class, but must be of such a nature as to embrace all those who may hereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and circumstances which are
relative to the discriminatory legislation and which are indistinguishable from those of the members of
the class must be brought under the influence of the law and treated by it in the same way as are the
members of the class." (Emphasis supplied)
The majority opinion goes on to suggest that EO 1 could be amended "to include the earlier past
administrations" to allow it "to pass the test of reasonableness and not be an affront to the Constitution."
The majority opinion’s reasoning is specious, illogical, impractical, impossible to comply, and contrary
to the Constitution and well-settled jurisprudence. To require that "earlier past administrations" must
also be included in the investigation of the Truth Commission, with the Truth Commission expressly
empowered "to investigate all past administrations," before there can be a valid investigation of the
Arroyo administration under the equal protection clause, is to prevent absolutely the investigation of the
Arroyo administration under any circumstance.
While the majority opinion admits that there can be "reasonable prioritization" of past administrations to
be investigated, it not only fails to explain how such reasonable prioritization can be made, it also
proceeds to strike down EO 1 for prioritizing the Arroyo administration in the investigation of the Truth
Commission. And while admitting that there can be a valid classification based on substantial
distinctions, the majority opinion inexplicably makes any substantial distinction immaterial by stating
that "[t]o exclude the earlier administrations in the guise of "substantial distinctions" would only
confirm the petitioners' lament that the subject executive order is only an 'adventure in partisan
hostility.'"

The "earlier past administrations" prior to the Arroyo administration cover the Presidencies of Emilio
Aguinaldo, Manuel Quezon, Jose Laurel, Sergio Osmeña, Manuel Roxas, Elpidio Quirino, Ramon
Magsaysay, Carlos Garcia, Diosdado Macapagal, Ferdinand Marcos, Corazon Aquino, Fidel Ramos,
and Joseph Estrada, a period spanning 102 years or more than a century. All these administrations, plus
the 9-year Arroyo administration, already constitute the universe of all past administrations, covering a
total period of 111 years. All these "earlier past administrations" cannot constitute just one class of
administrations because if they were to constitute just one class, then there would be no other class of
administrations. It is like saying that since all citizens are human beings, then all citizens belong to just
one class and you cannot classify them as disabled, impoverished, marginalized, illiterate, peasants,
farmers, minors, adults or seniors.
Classifying the "earlier past administrations" in the last 111 years as just
one class is not germane to the purpose of investigating possible acts of
graft and corruption. There are prescriptive periods to prosecute crimes.
There are administrations that have already been investigated by their
successor administrations. There are also administrations that have been
subjected to several Congressional investigations for alleged large-scale
anomalies. There are past Presidents, and the officials in their
administrations, who are all dead. There are past Presidents who are dead
but some of the officials in their administrations are still alive. Thus, all
the "earlier past administrations" cannot be classified as just one single
class − "a class of past administrations" ‒ because they are not all
similarly situated.
On the other hand, just because the Presidents and officials of "earlier past administrations" are now all
dead, or the prescriptive periods under the penal laws have all prescribed, does not mean that there can
no longer be any investigation of these officials. The State's right to recover the ill-gotten wealth of
these officials is imprescriptible.64 Section 15, Article XI of the 1987 Constitution provides:
Section 15. The right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by prescription, laches
or estoppel. (Emphasis supplied)
Legally and morally, any ill-gotten wealth since the Presidency of Gen. Emilio Aguinaldo can still be
recovered by the State. Thus, if the Truth Commission is required to investigate "earlier past
administrations" that could still be legally investigated, the Truth Commission may have to start with
the Presidency of Gen. Emilio Aguinaldo.
A fact-finding investigation of "earlier past administrations," spanning 111 years punctuated by two
world wars, a war for independence, and several rebellions ─ would obviously be an impossible task to
undertake for an ad hoc body like the Truth Commission. To insist that "earlier past administrations"
must also be investigated by the Truth Commission, together with the Arroyo administration, is utterly
bereft of any reasonable basis other than to prevent absolutely the investigation of the Arroyo
administration. No nation on this planet has even attempted to assign to one ad-hoc fact-finding body
the investigation of all its senior public officials in the past 100 years.
The majority opinion’s overriding thesis − that "earlier past
administrations" belong to only one class and they must all be included in
the investigation of the Truth Commission, with the Truth Commission
expressly empowered "to investigate all past administrations" − is even
the wrong assertion of discrimination that is violative of the equal
protection clause. The logical and correct assertion of a violation of the
equal protection clause is that the Arroyo administration is being
investigated for possible acts of graft and corruption while other past
administrations similarly situated were not.
Thus, in the leading case of United States v. Armstrong,65 decided in 1996, the U.S. Supreme Court
ruled that "to establish a discrimination effect in a race case, the claimant must show that similarly
situated individuals of a different race were not prosecuted."66 Applied to the present petitions,
petitioners must establish that similarly situated officials of other past administrations were not
investigated. However, the incontrovertible and glaring fact is that the Marcoses and their cronies were
investigated and prosecuted by the PCGG, President Fidel Ramos and his officials in the Centennial
projects were investigated by the Saguisag Commission, and President Joseph Estrada was investigated,
prosecuted and convicted of plunder under the Arroyo administration. Indisputably, the Arroyo
administration is not being singled out for investigation or prosecution because other past
administrations and their officials were also investigated or prosecuted.
In United States v. Armstrong, the U.S. Supreme Court further stated that "[a] selective-prosecution
claim asks a court to exercise judicial power over a "special province" of the Executive,"67 citing
Hecker v. Chaney68 which held that a decision whether or not to indict "has long been regarded
as the special province of the Executive Branch, inasmuch it is the Executive who is charged by the
Constitution to ‘take Care that the Laws be faithfully executed.’"69 These U.S. cases already involved
the prosecution of cases before the grand jury or the courts, well past the administrative fact-finding
investigative phase.
In the present case, no one has been charged before the prosecutor or the courts. What petitioners want
this Court to do is invalidate a mere administrative fact-finding investigation by the Executive branch,
an investigative phase prior to preliminary investigation. Clearly, if courts cannot exercise the
Executive’s "special province" to decide whether or not to indict, which is the equivalent of
determination of probable cause, with greater reason courts cannot exercise the Executive’s "special
province" to decide what or what not to investigate for administrative fact-finding purposes.
For this Court to exercise this "special province" of the President is to encroach on the exclusive domain
of the Executive to execute the law in blatant violation of the finely crafted constitutional separation of
power. Any unwarranted intrusion by this Court into the exclusive domain of the Executive or
Legislative branch disrupts the separation of power among the three co-equal branches and ultimately
invites re-balancing measures from the Executive or Legislative branch.
A claim of selective prosecution that violates the equal protection clause can be raised only by the party
adversely affected by the discriminatory act. In Nunez v. Sandiganbayan,70 this Court declared:
‘x x x Those adversely affected may under the circumstances invoke the equal protection clause only if
they can show that the governmental act assailed, far from being inspired by the attainment of the
common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no
support in reason.’ x x x. (Emphasis supplied)
Here, petitioners do not claim to be adversely affected by the alleged selective prosecution under EO 1.
Even in the absence of such a claim by the proper party, the majority opinion strikes down EO 1 as
discriminatory and thus violative of the equal protection clause. This is a gratuitous act to those who are
not before this Court, a discriminatory exception to the rule that only those "adversely affected" by an
alleged selective prosecution can invoke the equal protection clause. Ironically, such discriminatory
exception is a violation of the equal protection clause. In short, the ruling of the majority is in itself a
violation of the equal protection clause, the very constitutional guarantee that it seeks to enforce.
The majority opinion’s requirement that "earlier past administrations" in the last 111 years should be
included in the investigation of the Truth Commission to comply with the equal protection clause is a
recipe for all criminals to escape prosecution. This requirement is like saying that before a person can be
charged with estafa, the prosecution must also charge all persons who in the past may have committed
estafa in the country. Since it is impossible for the prosecution to charge all those who in the past may
have committed estafa in the country, then it becomes impossible to prosecute anyone for estafa.
This Court has categorically rejected this specious reasoning and false invocation of the equal protection
clause in People v. dela Piedra,71 where the Court emphatically ruled:
The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by
itself, a denial of the equal protection of the laws. x x x
x x x The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while
a Zamboangueña, the guilty party in appellant’s eyes, was not, is insufficient to support a conclusion
that the prosecution officers denied appellant equal protection of the laws.
There is also common sense practicality in sustaining appellant’s prosecution.
While all persons accused of crime are to be treated on a basis of equality before the law, it does not
follow that they are to be protected in the commission of crime. It would be unconscionable, for
instance, to excuse a defendant guilty of murder because others have murdered with impunity. The
remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty
at the expense of society . . . . Protection of the law will be extended to all persons equally in the pursuit
of their lawful occupations, but no person has the right to demand protection of the law in the
commission of a crime. (People v. Montgomery, 117 P.2d 437 [1941])
Likewise,
[i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a
defense for others charged with crime, the result would be that the trial of the district attorney for
nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the
enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]).72
(Emphasis supplied)
The Court has reiterated this "common sense" ruling in People v. Dumlao73 and in Santos v. People,74
for to hold otherwise is utter nonsense as it means effectively granting immunity to all criminals.
Indeed, it is a basic statutory principle that non-observance of a law by disuse is not a ground to escape
prosecution for violation of a law. Article 7 of Civil Code expressly provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.
x x x. (Emphasis supplied)
A person investigated or prosecuted for a possible crime cannot raise the defense that he is being singled
out because others who may have committed the same crime are not being investigated or prosecuted.
Such person cannot even raise the defense that after several decades he is the first and only one being
investigated or prosecuted for a specific crime. The law expressly states that disuse of a law, or custom
or practice allowing violation of a law, will never justify the violation of the law or its non-observance.
A fact-finding investigation in the Executive or Judicial branch, even if limited to specific government
officials ─ whether incumbent, resigned or retired ─ does not violate the equal protection clause. If an
anomaly is reported in a government transaction and a fact-finding investigation is conducted, the
investigation by necessity must focus on the public officials involved in the transaction. It is ridiculous
for anyone to ask this Court to stop the investigation of such public officials on the ground that past
public officials of the same rank, who may have been involved in similar anomalous transactions in the
past, are not being investigated by the same fact-finding body. To uphold such a laughable claim is to
grant immunity to all criminals, throwing out of the window the constitutional principle that "[p]ublic
office is a public trust"75 and that "[p]ublic officials and employees must at all times be accountable to
the people."76
When the Constitution states that public officials are "at all times" accountable to the people, it means at
any time public officials can be held to account by the people. Nonsensical claims, like the selective
prosecution invoked in People v. dela Piedra, are unavailing. Impossible conditions, like requiring the
investigation of "earlier past administrations," are disallowed. All these flimsy and dilatory excuses
violate the clear command of the Constitution that public officials are accountable to the people "at all
times."
The majority opinion will also mean that the PCGG Charter − which tasked
the PCGG to recover the ill-gotten wealth of the Marcoses and their
cronies − violates the equal protection clause because the PCCG Charter
specifically mentions the Marcoses and their cronies. The majority
opinion reverses several decisions77 of this Court upholding the
constitutionality of the PCCG Charter, endangering over two decades of
hard work in recovering ill-gotten wealth.
Ominously, the majority opinion provides from hereon every administration a cloak of immunity against
any investigation by its successor administration. This will institutionalize impunity in transgressing
anti-corruption and other penal laws. Sadly, the majority opinion makes it impossible to bring good
governance to our government.
The Truth Commission is only a fact-finding body to provide the President with facts so that he can
understand what happened in certain government transactions during the previous administration. There
is no preliminary investigation yet and the Truth Commission will never conduct one. No one is even
being charged before the prosecutor or the Ombudsman. This Court has consistently refused to interfere
in the determination by the prosecutor of the existence of probable cause in a preliminary
investigation.78 With more reason should this Court refuse to interfere in the purely fact-finding work
of the Truth Commission, which will not even determine whether there is probable cause to charge any
person of a crime.
Before the President executes the law, he has the right, and even the duty, to know the facts to assure
himself and the public that he is correctly executing the law. This Court has no power to prevent the
President from knowing the facts to understand certain government transactions in the Executive
branch, transactions that may need to be reviewed, revived, corrected, terminated or completed. If this
Court can do so, then it can also prevent the House of Representatives or the Senate from conducting an
investigation, in aid of legislation, on the financial transactions of the Arroyo administration, on the
ground of violation of the equal protection clause. Unless, of course, the House or the Senate attempts to
do the impossible ― conduct an investigation on the financial transactions of “earlier past
administrations" since the Presidency of General Emilio Aguinaldo. Indeed, under the majority opinion,
neither the House nor the Senate can conduct any investigation on any administration, past or present, if
"earlier past administrations" are not included in the legislative investigation.
In short, the majority opinion’s requirements that EO 1 should also include "earlier past
administrations," with the Truth Commission empowered "to investigate all past administrations," to
comply with the equal protection clause, is a requirement that is not only illogical and impossible to
comply, it also allows the impunity to commit graft and corruption and other crimes under our penal
laws. The majority opinion completely ignores the constitutional principle that public office is a public
trust and that public officials are at all times accountable to the people.
A Final Word
The incumbent President was overwhelmingly elected by the Filipino people in the 10 May 2010
elections based on his announced program of eliminating graft and corruption in government. As the
Solicitor General explains it, the incumbent President has pledged to the electorate that the elimination
of graft and corruption will start with the investigation and prosecution of those who may have
committed large-scale corruption in the previous administration.79 During the election campaign, the
incumbent President identified graft and corruption as the major cause of poverty in the country as
depicted in his campaign theme "kung walang corrupt, walang mahirap." It was largely on this
campaign pledge to eliminate graft and corruption in government that the electorate overwhelmingly
voted for the incumbent President. The Filipino people do not want to remain forever at the bottom third
of 178 countries ranked in terms of governments free from the scourge of corruption.80
Neither the Constitution nor any existing law prevents the incumbent President from redeeming his
campaign pledge to the Filipino people. In fact, the incumbent President’s campaign pledge is merely a
reiteration of the basic State policy, enshrined in Section 27, Article II of the Constitution, that:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption. (Emphasis supplied)
The incumbent President’s campaign pledge also reiterates the constitutional principle that "[p]ublic
office is a public trust"81 and that "[p]ublic officers and employees must at all times be accountable to
the people."82
This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will of the
Filipino people to start the difficult task of putting an end to graft and corruption in government, denies
the President his basic constitutional power to determine the facts in his faithful execution of the law,
and suppresses whatever truth may come out in the purely fact-finding investigation of the Truth
Commission. This Court, in invoking the equal protection clause to strike down a purely fact-finding
investigation, grants immunity to those who violate anti-corruption laws and other penal laws, renders
meaningless the constitutional principle that public office is a public trust, and makes public officials
unaccountable to the people at any time.
Ironically, this Court, and even subordinates of the President in the Executive branch, routinely create
all year round fact-finding bodies to investigate all kinds of complaints against officials and employees
in the Judiciary or the Executive branch, as the case may be. The previous President created through
executive issuances three purely fact-finding commissions similar to the Truth Commission. Yet the
incumbent President, the only official mandated by the Constitution to execute faithfully the law, is now
denied by this Court the power to create the purely fact-finding Truth Commission.
History will record the ruling today of the Court’s majority as a severe case of judicial overreach that
made the incumbent President a diminished Executive in an affront to a co-equal branch of government,
crippled our already challenged justice system, and crushed the hopes of the long suffering Filipino
people for an end to graft and corruption in government.
Accordingly, I vote to DISMISS the petitions.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 Also known as the Administrative Code of 1987. One of EO 1’s WHEREAS clauses reads:
"WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President."
2 Domingo v. Zamora, 445 Phil. 7, 13 (2003).
3 Emphasis supplied.
4 Emphasis supplied. President Aquino took his oath in Filipino.
5 Rodriguez, et al. v. Santos Diaz, et al., 119 Phil. 723, 727-728 (1964).
6 TSN, 7 September 2010, pp. 56-57.
7 No. L-29274, 27 November 1975, 68 SCRA 99, 104.
8 Section 31, Chapter 10, Title III, Book III of EO 292, quoted on page 2.
9 Section 22, Chapter 8, Title II, Book III of EO 292 reads:
Section 22. Office of the President Proper. (1) The Office of the President Proper shall consist of the
Private Office, the Executive Office, the Common Staff Support System, and the Presidential Special
Assistants/Advisers System;
(2) The Executive Office refers to the Offices of the Executive Secretary, Deputy Executive Secretaries
and Assistant Executive Secretaries;
(3) The Common Staff Support System embraces the offices or units under the general categories of
development and management, general government administration and internal administration; and
(4) The Presidential Special Assistants/Advisers System includes such special assistants or advisers as
may be needed by the President." (Emphasis supplied)
10 Section 22(4), Id.
11 Section 47(2), Chapter 6, Book V of EO 292 provides:
Section 47. Disciplinary Jurisdiction. -
xxx
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters involving disciplinary action against officers
and employees under their jurisdiction. x x x. (Emphasis supplied)
12 Paragraph 1 of PD 1416, as amended, provides:

1. The President of the Philippines shall have continuing authority to reorganize the National
Government. In exercising this authority, the President shall be guided by generally acceptable
principles of good government and responsive national development, including but not limited to the
following guidelines for a more efficient, effective, economical and development-oriented governmental
framework:
(a) More effective planning, implementation, and review functions;
(b) Greater decentralization and responsiveness in the decision-making process;
(c) Further minimization, if not elimination, of duplication or overlapping of purposes, functions,
activities, and programs;
(d) Further development of as standardized as possible ministerial, sub-ministerial and corporate
organizational structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and administrative relationship among government entities.
For purposes of this Decree, the coverage of the continuing authority of the President to reorganize shall
be interpreted to encompass all agencies, entities, instrumentalities, and units of the National
Government, including all government-owned or controlled corporations, as well as the entire range of
the powers, functions, authorities, administrative relationships, and related aspects pertaining to these
agencies, entities, instrumentalities, and units.
2. For this purpose, the President may, at his discretion, take the following actions:
(a) Group, coordinate, consolidate or integrate departments, bureaus, offices, agencies, instrumentalities
and functions of the government;
(b) Abolish departments, offices, agencies or functions which may not be necessary, or create those
which are necessary, for the efficient conduct of government functions services and activities;
(c) Transfer functions, appropriations, equipment, properties, records and personnel from one
department, bureau, office, agency or instrumentality to another;
(d) Create, classify, combine, split, and abolish positions;
(e) Standardize salaries, materials and equipment;
(f) Create, abolish, group, consolidate, merge, or integrate entities, agencies, instrumentalities, and units
of the National Government, as well as expand, amend, change, or otherwise modify their powers,
functions and authorities, including, with respect to government-owned or controlled corporations, their
corporate life, capitalization, and other relevant aspects of their charters; and
(g) Take such other related actions as may be necessary to carry out the purposes and objectives of this
Decree. (Emphasis supplied)
13 Paragraph 1 (c) and (e), PD 1416, as amended.
14 The clause states: "WHEREAS, the transition towards the parliamentary form of government will
necessitate flexibility in the organization of the national government."
15 Aurillo v. Rabi, 441 Phil. 117 (2002); Drilon v. Lim, G.R. No. 112497, 4 August 1994, 235 SCRA
135; Mondano v. Silvosa, etc. et al., 97 Phil. 143 (1955).
16 Section 29(1), Article VI, 1987 Constitution.
17 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No.
78742, 14 July 1989, 175 SCRA 343.
18 See Special Provision No. 2, General Appropriations Act of 2010 or Republic Act No. 9970.
19 TSN, 7 September 2010, p. 61. 30 G.R. No. 159747, 13 April 2004, 427 SCRA 46.

20 Doran v. Executive Judge Luczon, Jr., G.R. No. 151344, 26 September 2006, 503 SCRA 106. 31 Id. at 70.

21 Id. 32 Id.

22 G.R. No. 179830, 3 December 2009, 606 SCRA 554, citing Dole Philippines Inc. v. Esteva, G.R. No.
161115, 30 November 2006, 509 SCRA 332.
23 Id. at 570-571.
24 Section 65, Chapter 13, Book IV of EO 292 merely provides:
Section 65. Approval of other types of Government Contracts. — All other types of government
contracts which are not within the coverage of this Chapter shall, in the absence of a special provision,
be executed with the approval of the Secretary or by the head of the bureau or office having control of
the appropriation against which the contract would create a charge. Such contracts shall be processed
and approved in accordance with existing laws, rules and regulations.
33 People vs. Morial, 415 Phil. 310 (2001).
34 An Act Establishing The Philippine National Police Under A Reorganized Department of Interior
and Local Government And For Other Purposes. Also known as the Philippine National Police Law or
the Department of Interior and Local Government Act of 1990.
35 Section 3, Chapter I, Title III, Book IV of EO 292 provides:
Section 3. Powers and Functions. - To accomplish its mandate, the Department (DOJ) shall have the
following powers and functions:
(1) x x x

25 http://www.mb.com.ph/node/270641/ombud, accessed on 19 November 2010. (2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system;
26 Section 1, Rule 112, Rules of Court.
x x x.
27 "An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman,
and for Other Purposes." Also known as "The Ombudsman Act of 1989." 36 TSN, 28 September 2010, pp. 41-42.

28 Republic Act No. 8249, entitled "An Act Further Defining the Jurisdiction of the Sandiganbayan, 37 Section 46(25), Chapter 7, Book V, EO 292.
Amending For the Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefore, and
For Other Purposes." Approved on 5 February 1997. 38 Section 1, Rule 21 of the Rules of Court provides:

29 Section 13(1), Article XI, Constitution.

SEC. 1. Subpoena and Subpoena duces tecum. - 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 by 47 Article 90, in relation to Articles 211-A and 217, of the Revised Penal Code.
competent authority, or for the taking of his deposition. It may also require him to bring with him any
books, documents, or other things under his control, in which case it is called a subpoena duces tecum. 48 Section 11, RA No. 3019.
(Emphasis supplied)
49 Section 1, Act No. 3326.
39 Section 9, Rule 21 of the Rules of Court provides:
50 Section 2, EO 1.
SEC. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him
shall be deemed a contempt of court from which the subpoena is issued. If the subpoena was not issued 51 Section 2(b), EO 1.
by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.
(Emphasis supplied) 52 Id.

40 In sharp contrast, Section 26(1), Article VI of the Constitution provides: "Every bill passed by the 53 See People v. Duque, G.R. No. 100285, 13 August 1992, 212 SCRA 607.
Congress shall embrace only one subject which shall be expressed in the title thereof." Thus, the title of
a bill must express the subject of the bill. 54 Section 15, Article XI, Constitution.

41 With apologies to William Shakespeare. These are the lines in Romeo and Juliet: "What’s in a name? 55 Section 14 of EO 1 provides that "the Commission shall accomplish its mission on or before
That which we call a rose by any other name would smell as sweet." December 31, 2012."

42 Created by Presidential Decree No. 1886 dated 14 October 1983.
43 The Majority Opinion of the Agrava Board recommended for prosecution 26 named individuals,
including Gen. Fabian Ver. The Minority Opinion of Chairperson Corazon Agrava recommended for
prosecution only 7 named individuals, excluding Gen. Ver.
56 In People v. dela Piedra, 403 Phil. 31, 54 (2001), the Court stated, "The prosecution of one guilty
person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal
protection of the laws."
57 G.R. No. 86926, 15 October 1991, 202 SCRA 680.

44 Excluding those charged as "John Does." 58 Id. at 698. (Emphasis supplied)

45 One of the accused died during the trial and three remained at large. 59 Created by President Franklin Roosevelt.

46 Virata v. Sandiganbayan, G.R. No. 86926, 15 October 1991, 202 SCRA 680; PCGG v. Peña, 293 60 Created by President Lyndon Johnson.
Phil. 93 (1988); and Baseco v. PCGG, 234 Phil. 180 (1987).
61 Created through law by the U.S. Congress. 69 Id. at 832.

62 Executive Order No. 1, dated 28 February 1986.
63 Administrative Order No. 53 – Creating an Ad-hoc and Independent Citizens’ Committee to
Investigate All the Facts and Circumstances Surrounding Philippine Centennial Projects, Including its
Component Activities, dated 24 February 1999.
70 197 Phil. 407, 423 (1982). This ruling was reiterated in City of Manila v. Laguio, 495 Phil. 289
(2005); Mejia v. Pamaran, 243 Phil. 600 (1998); Bautista v. Juinio, 212 Phil. 307 (1984); and
Calubaquib v. Sandiganbayan, 202 Phil. 817 (1982).
71 403 Phil. 31 (2001).

64 Even prior to the 1987 Constitution, public officials could not acquire ownership of their ill-gotten 72 Id. at 54-56.
wealth by prescription. Section 11 of Republic Act No. 1379, or the Law on Forfeiture of Ill-Gotten
Wealth enacted on 18 June 1956, provides: 73 G.R. No. 168918, 2 March 2009, 580 SCRA 409.

Section 11. Laws on prescription. — The laws concerning acquisitive prescription and limitation of 74 G.R. No. 173176, 26 August 2008, 563 SCRA 341.
actions cannot be invoked by, nor shall they benefit the respondent, in respect of any property
unlawfully acquired by him. 75 Section 1, Article XI, Constitution.

Under Article 1133 of the New Civil Code, "[m]ovables possessed through a crime can never be 76 Id.
acquired through prescription by the offender." And under Article 1956 of the Spanish Civil Code of
1889, "ownership of personal property stolen or taken by robbery cannot be acquired by prescription by 77 Supra, note 46.
the thief or robber, or his accomplices, or accessories, unless the crime or misdemeanor or the penalty
therefor and the action to enforce the civil liability arising from the crime or misdemeanor are barred by 78 See Spouses Aduan v. Levi Chong, G.R. No. 172796, 13 July 2009, 592 SCRA 508; UCPB v.
prescription." Looyuko, G.R. No. 156337, 28 September 2007, 534 SCRA 322; First Women’s Credit Corporation v.
Perez, G.R. No. 169026, 15 June 2006, 490 SCRA 774; and Dupasquier v. Court of Appeals, 403 Phil.
65 517 U.S. 456, decided 13 May 1996. The U.S. Supreme Court reiterated this ruling in United States 10 (2001).
v. Bass, 536 U.S. 862 (2002), a per curiam decision.
79 Memorandum for Respondents, p. 91.
66 517 U.S. 456, 465.
80 The 2010 Transparency International Corruption Index ranks the Philippines at 134 out of 178
67 Id. at 464. countries. See http:/www.transparency.org/policy_research/surveys_indices/cpi/2010/results, accessed
on 13 November 2010.
68 470 U.S. 821 (1985).
81 Section 1, Article XI, Constitution.

82 Id.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO MORALES, J.:
Assailed for being unconstitutional in the present consolidated cases is Executive Order (EO) No. 1 of
July 30, 2010 that created the Philippine Truth Commission of 2010 (Truth Commission).
In issue is whether EO No. 1 violates the Constitution in three ways, viz., (i) for usurping the power of
Congress to create public office and appropriate public funds, (ii) for intruding into the independence of
the Office of the Ombudsman, and (iii) for infringing on the equal protection clause with its limited
scope of investigation.
The ponencia submits the following findings and conclusions which have been synthesized:
1. The Truth Commission is an ad hoc body formed under the Office of the President.1avvph!1 It has all
the powers of an investigative body under the Administrative Code.1 It is a fact-finding body, and not a
quasi-judicial body;
2. The President has the power to create a new office like the Truth Commission. The power inheres in
his powers as Chief Executive and springs from the constitutional duty to faithfully execute the laws.2
Otherwise stated, the President has the power to conduct investigations to aid him in ensuring that laws
are faithfully executed. It does not emanate from the President’s power of control under the
Constitution,3 nor by virtue of the power to reorganize under the Administrative Code4 which pertains
to certain modifications of existing offices, nor by authority of a stale law5 governing reorganization of
the national government;
3. There is no transgression of the legislative power to appropriate public funds since what is involved is
only an allotment or allocation of existing funds that have already been appropriated and which shall
equally be subject to auditing rules;
4. The Truth Commission does not duplicate, supersede or erode the powers and functions of the Office
of the Ombudsman and the Department of Justice, since its investigative function complements the two
offices’ investigative power which is not exclusive. This investigative function is not akin to the conduct
of preliminary investigation of certain cases, over which the Ombudsman exercises primary jurisdiction;
and
5. EO No. 1 violates the equal protection clause enshrined in the Constitution,6 for it singles out the
previous administration as the sole subject of investigation.
Sustaining only the fifth ground – that the EO violates the equal protection clause, the ponencia
disposes:
WHEREFORE, the petition is (sic) GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are enjoined from implementing (sic) and operating the Truth
Commission.7 (underscoring supplied)
I submit that the petitions should be DISMISSED.
It bears noting at the outset that none of the petitioners properly raises the issue of equal protection of
the laws.
Petitioners in G.R. No. 193036, with legal standing as legislators, cannot properly assert the equal
protection claim of the previous administration. While legislators have locus standi in certain cases,
their legal standing as such is recognized only insofar as the assailed issuance affects their functions as
legislators. In the absence of a claim that the issuance in question violated the rights of petitioner-
legislators or impermissibly intruded into the domain of the Legislature, they have no legal standing to
institute the present action in their capacity as members of Congress.8
No doubt, legislators are allowed to sue to question the validity of any official action upon a claim of
usurpation of legislative power.9 That is why, not every time that a Senator or a Representative invokes
the power of judicial review, the Court automatically clothes them with locus standi.10 The Court
examines first, as the ponencia did, if the petitioner raises an issue pertaining to an injury to Congress as
an institution or a derivative injury to members thereof,11 before proceeding to resolve that particular
issue.
The peculiarity of the locus standi of legislators necessarily confines the adjudication of their petition
only on matters that tend to impair the exercise of their official functions. In one case, the Court ruled:
We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens
of the country. They have not shown, however, that they have sustained or will sustain a direct injury
from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they
will be deprived of their remedies for the protection and enforcement of their rights does not persuade.
The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are
available under our national laws to protect our citizens against human rights violations and petitioners
can always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that 'to the extent the powers of Congress are impaired, so
is the power of each member thereof, since his office confers a right to participate in the exercise of the
powers of that institution. Thus, legislators have the standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as legislators. The petition at
bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the
executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to
transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to assert such authority of the Senate.12
(emphasis and underscoring supplied)
Breach of the equal protection clause, as presently raised by petitioner-legislators on behalf of the
Executive Department of the immediate past administration, has nothing to do with the impairment of
the powers of Congress. Thus, with respect to the issue in Pimentel, Jr. v. Exec. Secretary Ermita13 that
did not involve any impairment of the prerogatives of Congress, some Senators who merely invoked
their status as legislators were not granted standing.
Moreover, petitioner-legislators cannot take the cudgels for the previous administration/s, unless they
admit that they are maintaining a confidential relation with it/them or acting as advocates of the rights of
a non-party who seeks access to their market or function.14
The petitioner in G.R. No. 192935, Louis Biraogo, does not raise the issue of equal protection. His
Memorandum mentions nothing about equal protection clause.15 While the ponencia "finds reason in
Biraogo’s assertion that the petition covers matters of transcendental importance,"16 not even his
successful invocation of transcendental importance can push the Court into resolving an issue which he
never raised in his petition.
On the foregoing score alone, the ponencia should not have dealt with the issue of equal protection.17
Such barriers notwithstanding, the claim of breach of the equal protection clause fails to hurdle the
higher barrier of merit.
EQUAL PROTECTION OF THE LAWS
The ponencia holds that the previous administration has been denied equal protection of the laws. To it,
"[t]o restrict the scope of the commission’s investigation to said particular administration constitutes
arbitrariness which the equal protection clause cannot sanction."18
I find nothing arbitrary or unreasonable in the Truth Commission’s defined scope of investigation.
In issues involving the equal protection clause, the test developed by jurisprudence is that of
reasonableness, 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.19
The classification rests on
substantial distinction
Reasonableness should consider the nature of the truth commission which, as found by the ponencia,
emanates from the power of the President to conduct investigations to aid him in ensuring the faithful
execution of laws. The ponencia explains that the Executive Department is given much leeway in
ensuring that our laws are faithfully executed. It adds:
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the
land. And if history is to be revisited, this was also the objective of the investigative bodies created in
the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission, and the
Zenarosa Commission. There being no changes in the government structure, the Court is not inclined to
declare such executive power as non-existent just because the direction of the political winds ha[s]
changed.20 (underscoring supplied)
This Court could not, in any way, determine or dictate what information the President would be needing
in fulfilling the duty to ensure the faithful execution of laws on public accountability. This sweeping
directive of the ponencia to include all past administrations in the probe tramples upon the prerogative
of a co-equal branch of government.
The group or class, from which to elicit the needed information, rests on substantial distinction that sets
the class apart.
Proximity and magnitude of incidents
Fairly recent events like the exigencies of transition and the reported large-scale corruption explain the
determined need to focus on no other period but the tenure of the previous administration.
The proximity and magnitude of particular contemporary events like the Oakwood mutiny and
Maguindanao massacre similarly justified the defined scope of the Feliciano Commission and the
Zenarosa Commission, respectively. As applied to the two commissions whose objective the ponencia
itself recognizes, the same test of reasonableness rejects the absurd proposition to widen their respective
scopes to include all incidents of rebellion/mutiny and election-related violence since the First Republic.
Certainly, it is far removed not just from the present time but also from logic and experience.
This explained need for specific information removes the arbitrariness from recognizing the previous
administration as a distinct class of its own.
Without a complete and definitive report
The ponencia brushes aside the proffered reasons for limiting the investigation to the previous
administration since "earlier administrations have also been blemished by similar widespread reports of
impropriety."21
The ponencia employs the premise that previous administrations have all been blemished by reports of
improprieties similar22 to those of the previous administration. Whether reports of such nature exist is
not borne by the pleadings submitted by petitioners who allege unequal protection. Without any factual
basis, the statement is inconclusive and, at best, arguable.
Assuming arguendo that comparable reports of large-scale graft and corruption existed during
administrations previous to the last, petitioners do not allege that information regarding these reported
activities is not yet available in the Executive Department. On the contrary, respondents disclose that the
Presidential Commission on Good Government and the Saguisag Commission have already probed into
certain anomalous transactions that occurred during the Marcos and Ramos administrations,
respectively. During past administrations, parallel functions had been discharged by the Integrity Board,
Presidential Complaints and Action Commission (PCAC), Presidential Committee on Administrative
Performance Efficiency (PCAPE), and Presidential Anti-Graft Committee (PAGCOM, later replaced by
the Presidential Committee on Administering Performance Efficiency), that were created by former
Presidents Quirino, Magsaysay, Garcia and Macapagal, respectively.23 Not to mention the plunder
committed during the Estrada administration, the facts of which – already judicially ascertained, at that
– are contained in public records.
The Executive Department’s determination of the futility or redundancy of investigating other
administrations should be accorded respect. Respondents having manifested that pertinent and credible
data are already in their hands or in the archives, petitioners’ idea of an all-encompassing de novo
inquiry becomes tenuous as it goes beyond what the Executive Department needs.
The exclusion of other past administrations from the scope of investigation by the Truth Commission is
justified by the substantial distinction that complete and definitive reports covering their respective
periods have already been rendered. The same is not true with the immediate past administration. There
is thus no undue favor or unwarranted partiality. To include everybody all over again is to insist on a
useless act.
The distinction is not discriminatory
I find it contradictory for the ponencia to state, on the one hand, that the Truth Commission would be
labeled as a "vehicle for vindictiveness and selective retribution"24 and declare, on the other, that "its
power to investigate is limited to obtaining facts x x x and its findings "would at best be
recommendatory in nature[,] [a]nd x x x [the concerned agencies] have a wide degree of latitude to
decide whether or not to reject the recommendation."25
After precisely explaining that "fact-finding is not adjudication,"26 the ponencia relates it to retribution
which it depicts, in the context of truth commissions, as a "retributory body set up to try and punish
those responsible for the crimes."27 The ponencia jumps into conclusion but lands nowhere for it has no
ground on which to stand.
Further, the Court should not concern itself with the nebulous concept of "partisan hostility," a relatively
redundant term that eludes exact definition in a political world of turncoatism. Had the assailed issuance
provided exemption to former members of the previous administration who have joined the prevailing
political party, I would not hesitate to declare EO No. 1 void.
Far from being discriminatory, E.O No. 1 permits the probing of current administration officials who
may have had a hand in the reported graft and corruption committed during the previous administration,
regardless of party affiliation. The classification notably rests not on personalities but on period, as
shown by the repeated use of the phrase "during the previous administration."28
The ponencia treats adventures in "partisan hostility" as a form of undue discrimination. Without
defining what it is, the ponencia gives life to a political creature and transforms it into a legal animal. By
giving legal significance to a mere say-so of "partisan hostility," it becomes unimaginable how the
Court will refuse to apply this novel doctrine in the countless concerns of the inherently political
branches of government under an invocation of equal protection. And to think, the present matter only
involves the gathering of information.
To knowingly classify per se is not synonymous to intentional discrimination, which brings me to the
next point that the classification is germane to the purpose of the law.
The classification is germane
to the purpose of the law
I entertain no doubt that respondents consciously and deliberately decided to focus on the corrupt
activities reportedly committed during the previous administration. For respondents to admit that the
selection was inadvertent is worse. The ponencia, however, is quick to ascribe intentional discrimination
from the mere fact that the classification was intentional.
Good faith is presumed. I find it incomprehensible how the ponencia overturns that presumption. Citing
an array of foreign jurisprudence, the ponencia, in fact, recognizes that mere under-inclusiveness or
incompleteness is not fatal to the validity of a law under the equal protection clause. Thus the ponencia
pontificates:

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the
equal protection clause." "Legislation is not unconstitutional merely because it is not all-embracing and
does not include all the evils within its reach." It has been written that a regulation challenged under the
equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete.
In several instances, the underinclusiveness was not considered valid reason to strike down a law or
regulation where the purpose can be attained in future legislations or regulations. These cases refer to
the "step by step" process. "With regard to equal protection claims, a legislature does not run the risk of
losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no clear indicia of inadvertence. That the previous
administration was picked out was deliberate and intentional as can be gathered from the fact that it was
stressed three times in the assailed executive order. "The equal protection clause is voided by purposeful
and intentional discrimination."29 (emphasis and underscoring supplied)
According to the ponencia itself, the E.O.’s failure to include all evils within its reach, even by design,
is not vulnerable to an equal protection challenge. How the ponencia arrives at a contrary conclusion
puzzles.
Within our own jurisprudential shores, the Court expounded in Quinto v. Comelec30 on those
classifications which, albeit not all-inclusive, remain germane to the purpose of the law.
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the
Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."
In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some
inequity as to those included or excluded. Nevertheless, as long as "the bounds of reasonable choice" are
not exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely
because the legislative aim would have been more fully achieved by expanding the class. Stated
differently, the fact that a legislative classification, by itself, is underinclusive will not render it
unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must
reach each and every class to which it might be applied; that the Legislature must be held rigidly to the
choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law creates
a classification that is "palpably arbitrary or capricious." He must refute all possible rational bases for
the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,
such that the constitutionality of the law must be sustained even if the reasonableness of the
classification is "fairly debatable." In the case at bar, the petitioners failed – and in fact did not even
attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this
point even while we submitted the following thesis:
. . . [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find
that there is no reasonably rational reason for the differing treatment. (underscoring supplied)
The "one step at a time" approach is thus not unconstitutional. E.O. No. 1 is not the first, but the latest,
step in a series of initiatives undertaken by Presidents, as earlier illustrated. Neither will it be the last
step. E.O. No. 1 contains a special provision31 concerning the expansion of mandate. There being no
constitutional violation in a step-by-step approach, the present and future administrations may release
supplementary or comparable issuances.
The wisdom behind the issuance of the E.O. No. 1 is "outside the rubric of judicial scrutiny."32
Analogous to Quinto’s instructions, this Court cannot and should not arrogate unto itself the power to
ascertain and impose on the President the best or complete way of obtaining information to eradicate
corruption. Policy choices on the practicality or desirability of data-gathering that is responsive to the
needs of the Executive Department in discharging the duty to faithfully execute the laws are best left to
the sound discretion of the President.
Most enlightening as to how the classification is germane to the purpose of the law is knowing first what
is the purpose of the law.
According to the ponencia, the objective of E.O. No. 1 is the "stamping out [of] acts of graft and
corruption."33
I differ.
The purpose of E.O. No. 1 is the gathering of needed information to aid the President in the
implementation of public accountability laws. Briefly stated, E.O. No. 1 aims to provide data for the
President.
The ponencia, in fact, has earlier explained: "It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know
so that he can be properly advised and guided in the performance of his duties relative to the execution
and enforcement of the laws of the land."34
The long-term goal of the present administration must not be confused with what E.O. No. 1 intends to
achieve within its short life. The opening clauses and provisions of E.O No. 1 are replete with phrases
like "an urgent
call for the determination of the truth," "dedicated solely to investigating and finding out the truth," and
"primarily seek and find the truth."
The purpose of E.O. No. 1 is to produce a report which, insofar as the Truth Commission is concerned,
is the end in itself. The purpose of the report is another matter which is already outside the control of
E.O. No. 1.
Once the report containing the needed information is completed, the Truth Commission is dissolved
functus officio. At that point, the endeavor of data-gathering is accomplished, and E.O No. 1 has served
its purpose. It cannot be said, however, that it already eradicated graft and corruption. The report would
still be passed upon by government agencies. Insofar as the Executive Department is concerned, the
report assimilates into a broader database that advises and guides the President in law enforcement.
To state that the purpose of E.O. No. 1 is to stamp out acts of graft and corruption leads to the fallacious
and artificial conclusion that respondents are stamping out corrupt acts of the previous administration
only, as if E.O. No. 1 represents the entire anti-corruption efforts of the Executive Department.
To state that the purpose of E.O. No. 1 is to eradicate graft and corruption begs the question. What is
there to eradicate in the first place, if claims of graft and corruption are yet to be verified by the Truth
Commission? Precisely, by issuing E.O. No. 1, respondents saw the need to verify raw data before
initiating the law enforcement mechanism, if warranted.
The classification is not limited
to existing conditions only
The Truth Commission is an ad hoc body formed under the Office of the President. The nature of an ad
hoc body is that it is limited in scope. Ad hoc means for the particular end or case at hand without
consideration of wider application.35 An ad hoc body is inherently temporary. E.O. No. 1 provides that
the Truth Commission "shall accomplish its mission on or before December 31, 2012."36
That the classification should not be limited to existing conditions only, as applied in the present case,
does not mean the inclusion of future administrations. Laws that are limited in duration (e.g., general
appropriations act) do not circumvent the guarantee of equal protection by not embracing all that may,
in the years to come, be in similar conditions even beyond the effectivity of the law.
The requirement not to limit the classification to existing conditions goes into the operational details of
the law. The law cannot, in fine print, enumerate extant items that exclusively compose the
classification, thereby excluding soon-to-exist ones that may also fall under the classification.
In the present case, the circumstance of available reports of large-scale anomalies that fall under the
classification (i.e., committed during the previous administration) makes one an "existing condition."
Those not yet reported or unearthed but likewise fall under the same class must not be excluded from
the application of the law. There is no such exclusionary clause in E.O. No. 1.
The ratiocination on this third requisite so as to include previous administrations already goes into the
"classifications," not the "conditions." The ponencia rewrites the rule leading to the absurd requirement
that the classification should not be limited to the existing "classification" only.
The classification applies equally
to all members of the same class
Petitioners concede, by their failure to allege otherwise, that the classification applies equally to all
members within the same class (i.e., all reports of large-scale graft and corruption during the previous
administration). By this implied admission, this fourth requirement meets no objection.
Petitioners’ only insistent contention, as sustained by the ponencia, is that all prior administrations
belong to the same class, citing that equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed.37
Petitioners do not espouse the view that no one should be investigated. What they advocate is that all
administrations should be investigated or, more accurately, all reports of large-scale graft and corruption
during the tenure of past administrations should be subjected to investigation.
Discrimination presupposes prejudice. I find none.
First, no one complains of injury or prejudice. Petitioners do not seek the lifting of their own obligations
or the granting of their own rights that E.O. No. 1 imposes or disallows. As earlier expounded,
petitioner-legislators cannot plausibly invoke the equal protection claims of other persons, while
petitioner Biraogo did not invoke it at all.
Second, petitioners do not allege that previous administrations, other than the immediate past
administration, have been denied the right to appear before or be examined by the Truth Commission.
Neither do petitioners identify the specific fact-finding obligations exclusively imposed upon the
immediate past administration by the Truth Commission whose primary duty is merely to "investigate
reports of graft and corruption and to recommend the appropriate action."38
Third, assuming that there already exists an imposition of obligation from the mere recommendation for
prosecution (as one of the possible appropriate measures) by the Truth Commission, the act of not
recommending the prosecution of all those who could be probably guilty of graft and corruption is not
violative of the equal protection clause. Even in the succeeding stage of preliminary investigation,
which is already "out of the Truth Commission’s sphere of functions,"39 jurisprudence instructs that the
right to equal protection of the laws "may not be perversely used to justify desistance by the authorities
from prosecution of a criminal case, just because not all of those who are probably guilty thereof were
charged."40
Verily, where there is claim of breach of the due process and equal protection clauses, considering that
they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character
as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail.41
Finally, even assuming arguendo that all prior administrations should be included within the scope of
investigation of the Truth Commission, E.O. No 1 is saved by a separability clause,42 considering that
the remaining portions can stand independently of the assailed portions and constitute a complete,
intelligible and valid law which carries out the intent of the law.43 There is thus no basis for denying the
other provisions of their continued force and enjoining the operation of the Truth Commission.
I, therefore, submit that there exists a "reasonable foundation or rational basis"44 for defining the
subject of the special fact-finding investigation by the Truth Commission.
For the foregoing reasons, I vote to DISMISS the petitions.
CONCHITA CARPIO MORALES
Associate Justice
Footnotes
1 Executive Order No. 292 (July 25, 1987), Book I, Chapter 9, Sec. 37.
2 Constitution, Art. VII, Secs. 1 & 7 (2nd sentence), respectively.
American jurisprudence is replete with examples where parties-in-interest were allowed standing to
3 Id., Sec. 7 (1st sentence). advocate or invoke the fundamental due process or equal protection claims of other persons or classes of
persons injured by state action. In Griswold v. Connecticut, the United States Supreme Court held that
4 Executive Order No. 292 (July 25, 1987), Book III, Title III, Chapter 10, Sec. 31. physicians had standing to challenge a reproductive health statute that would penalize them as
accessories as well as to plead the constitutional protections available to their patients. The Court held
5 Presidential Decree No. 1416 (June 9, 1975), as amended by Presidential Decree No. 1772 (January that:
15, 1982).
The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those
6 Constitution, Art. III, Sec. 1. rights are considered in a suit involving those who have this kind of confidential relation to them.

7 Ponencia, p. 41.
8 Vide Bagatsing v. Committee on Privatization, PNCC, 316 Phil. 414 (1995).
9 Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 2007, 531
SCRA 583.
10 Vide e.g., Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, where the Court found that Sen. Ma. Ana Consuelo Madrigal had no legal
standing.
11 Ponencia, pp. 13-14, citing Philippine Constitution Association v. Enriquez, G.R. No. 113105,
August 19, 1994, 235 SCRA 506.
12 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622,
631-632.
An even more analogous example may be found in Craig v. Boren, wherein the United States Supreme
Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male
customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to
females under the age of 18. The United States High Court explained that the vendors had standing "by
acting as advocates of the rights of third parties who seek access to their market or function."
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert
the rights of the latter, the overbreadth doctrine comes into play. x x x (emphasis and underscoring
supplied)
15 Consequently, A.M. No. 99-2-04-SC (effective March 15, 1999) directs: "No new issues may be
raised by a party in the Memorandum. Issues raised in previous pleadings but not included in the
Memorandum shall be deemed waived or abandoned. Being a summation of the parties' previous
pleadings, the Memoranda alone may be considered by the Court in deciding or resolving the petition."
16 Ponencia, p. 16.

13 509 Phil. 567 (2005). 17 It can be argued that the danger of otherwise resolving one issue not raised by the proper party,
which issue is personal to him, is the effect of foreclosing certain defenses known only to him. If the
14 Vide White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA issue concerning the "injured non-party" is defeated, it then becomes the "law of the case" (vide Banco
416, 431-432, which reads: de Oro-EPCI, Inc. v. Tansipek, G.R. No. 181235, July 22, 2009, 593 SCRA 456 on "law of the case").
The injured party can no longer resurrect the issue in a later case, even if he can present arguments more
illuminating than that of the current "uninjured" petitioner.
18 Ponencia, p. 36.
19 Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010.
20 Ponencia, pp. 24-25.
21 Id. at 37.
22 "x x x reports of graft and corruption of such scale and magnitude that shock and offend the moral
and ethical sensibilities of the people x x x;" vide Executive Order No. 1 (July 30, 2010), Sec. 1.
31 Executive Order No. 1 (July 30, 2010), Sec. 17. Special Provision Concerning Mandate. – If and
when in the judgment of the President there is a need to expand the mandate of the Commission as
defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption
during the prior administrations, such mandate may be so extended accordingly by way of a
supplemental Executive Order.
32 Quinto v. Commission on Elections, supra.
33 Ponencia, p. 37.
34 Id. at 24.
35 <http://www.merriam-webster.com/dictionary/ad+hoc> [visited: November 10, 2010].

23 Respondents’ Memorandum, Annex 1, citing Executive Order No. 318 (May 25, 1950) and 36 Executive Order No. 1 (July 30, 2010), Sec. 14.
Executive Order No. 1 (December 30, 1953); vide Executive Order No. 306 (July 15, 1958), Executive
Order No. 378 (February 18, 1960) later repealed by Executive Order No. 457 (December 29, 1961). 37 Ponencia, p. 33.

24 Ponencia, p. 36. 38 Id. at 26.

25 Id. at 29. 39 Id. at 29.

26 Id. at 27, vide id. at 7. 40 Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, July 30, 2008, 560 SCRA 518, 539.

27 Id. at 8. 41 British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511, 570.

28 Executive Order No. 1 (July 30, 2010), Secs. 1-2 & 7th whereas clause. 42 Executive Order No. 1 (July 30, 2010), Sec. 18. Separability Clause.– If any provision of this Order
is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions
29 Ponencia, p. 39. hereof.

30 G.R. No. 189698, February 22, 2010.

43 Vide Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 298-
299; Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006,
482 SCRA 673.
44 Ambros v. Commission on Audit (COA), G.R. No. 159700, June 30, 2005, 462 SCRA 572, 597.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
Sir, I say that justice is truth in action.
Benjamin Disraeli, in a speech delivered before the British House of Commons, February 11, 1851
SERENO, J:
The majority Decision defeats the constitutional mandate on public accountability; it effectively
tolerates impunity for graft and corruption. Its invocation of the constitutional clause on equal protection
of the laws is an unwarranted misuse of the same and is a disservice to those classes of people for whom
the constitutional guarantee was created as a succor. The majority Decision accomplished this by
completely disregarding "reasonableness" and all its jurisprudential history as constitutional justification
for classification and by replacing the analytical test of reasonableness with mere recitations of general
case doctrines to arrive at its forced conclusion. By denying the right of the President to classify persons
in Executive Order No. (EO) 1 even if the classification is founded on reason, the Decision has
impermissibly infringed on the constitutional powers of the President. It wafts the smell of hope onto
the air towards those who seek the affirmance of EO 1 by saying:
... [T]his is not a death knell for a truth commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow
it to pass the test of reasonableness and not be an affront to the Constitution...1
but the scent of hope, as will be demonstrated, is that which emanates from a red herring. Since
Ferdinand Marcos’s presidency, no Court has stifled the powers of the Philippine presidency as has this
Court through the majority Decision.
The Concurring Opinion of Justice Arturo Brion reveals one undercurrent beneath the majority’s
logically indefensible conclusion that flows thusly: (1) the Filipino people cannot be trusted to recognize
truth from untruth; (2) because the people cannot make the distinction, there exists a large possibility
that the people would accept as truth the Philippine Truth Commission (PTC) version of the story on
reports of graft and corruption under the administration of President Gloria Macapagal-Arroyo even if it
turns out to be untruth; (3) this potential public belief in the untruth also enables the credulous public’s
inordinate pressure on the Ombudsman and the courts to concur in the untruth; (4) because of the
possibility of this inordinate pressure being brought to bear, the probability that the Ombudsman and the
courts would give in to such pressure exists; (5) thus the formula emerges – the public clamor
supportive of the untruth plus the Ombudsman and the courts possibly giving way to this clamor equals
violation of the due process rights of former President Arroyo and her officials; in turn, this sum equals
striking down the Philippine Truth Commission for being unconstitutional.
The separate opinions of Chief Justice Renato Corona and Justices Teresita de Castro, Lucas Bersamin,
and Jose Perez hold an extreme view on EO 1, opposing well-established jurisprudence which
categorically pronounce that the investigatory powers of the Ombudsman may be concurrently exercised
with other legally authorized bodies. Chief Justice Corona and Justices de Castro, Diosdado Peralta, and
Bersamin even go further in saying that it would take congressional action, by means of legislation, to
create a truth commission with the same mandate as that in EO 1; and even if Congress itself were to
create such commission, it would still be struck down for violating the equal protection right of former
President Arroyo.
Justice Antonio Carpio opines that the effect of the majority Decision is the absolute prevention of the
investigation of the Arroyo administration.2 I agree with his assessment, especially considering the
further views on the matter expressed separately by Chief Justice Corona and Justices de Castro, Brion,
Peralta, Bersamin, and Perez. In my view, the Decision and the separate concurring opinions manifest
the "backlash effect" wherein movements to achieve social justice and a more equitable distribution of
powers are met with opposition from the dominant group. When the people start demanding
accountability, in response to which truth commissions and other fact-finding bodies are established,
those from the previously ruling elite, who retain some hold on power, lash back at the effort by crying
"persecution," "violation of due process" and "violation of the equal protection guarantee." Some of the
petitioners, according to Justice Conchita Carpio Morales, are in essence acting for and in behalf of
former President Arroyo and her officials, otherwise they would not be invoking the "equal protection
clause," a defense that is inherently personal to President Arroyo and her officials. These petitioners are
wielding the backlash whip through the Petitions. In bending over backwards to accommodate the
Petitions, especially on equal protection claims which Petitioners could not properly raise, this Court is
wittingly or unwittingly compromising important constitutional principles and rendering the path to a
genuinely strong democratic Philippines more difficult. With all due respect, the Decision in effect
conveys the immoral lesson that what is all-important is to capture and retain political power at all costs
and misuse the legal infrastructure, including the Bill of Rights and the power of appointment, to create
a shield of immunity from prosecution of misdeeds.
Findings and Dispositive Conclusion of the Majority
The dispositive conclusion of the majority Decision contradicts its own understanding of both the
Constitution and the legal implication of recent political events. It finds that: (1) the Filipino people
convinced in the sincerity and ability of Benigno Simeon Aquino III to carry out the noble objective of
stamping out graft and corruption, "catapulted the good senator to the Presidency"3; (2) to transform his
campaign slogan into reality, "President Aquino found a need for a special body to investigate reported
cases of graft and corruption allegedly committed during the administration of his predecessor"4; (3) the
Philippine Truth Commission (PTC) is an ad hoc committee that flows from the President’s
constitutional duty to ensure that the laws are faithfully executed, and thus it can conduct investigations
under the authority of the President to determine whether the laws were faithfully executed in the past
and to recommend measures for the future to ensure that the laws will be faithfully executed;5 (4) the
PTC is constitutional as to its manner of creation and the scope of its powers;6 (5) that it is similar to
valid investigative bodies like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission and the Zeñarosa Commission.7 Nevertheless, the majority Decision concluded that the
PTC should be struck down as unconstitutional for violating the equal protection clause for the reason
that the PTC’s clear mandate is to "investigate and find out the truth concerning the reported cases of
graft and corruption during the previous administration only."8
There is a disjoint between the premises and the conclusion of the Decision caused by its discard of the
elementary rules of logic and legal precedents. It suffers from internal contradiction, engages in
semantic smoke-and-mirrors and blatantly disregards what must be done in evaluating equal protection
claims, i.e., a judge must ask whether there was indeed a classification; the purpose of the law or
executive action; whether that purpose achieves a legitimate state objective; the reason for the
classification; and the relationship between the means and the end. Within those layers of analysis, the
judge must compare the claimed reason for classification with cases of like or unlike reasoning. He
knows the real world, he looks at its limitations, he applies his common sense, and the judge knows in
his judicial heart whether the claimed reason makes sense or not. And because he is a practical man,
who believes as Justice Oliver Wendell Holmes did that the life of the law is in experience, he knows
false from genuine claims of unconstitutional discrimination.
With all due respect, it is bad enough that the Decision upsets the long line of precedents on equal
protection and displays self-contradiction. But the most unacceptable effect of the majority Decision is
that a court of unelected people – which recognizes that the President "need(s) to create a special body
to investigate reports of graft and corruption allegedly committed during the previous administration" to
"transform his campaign promise" "to stamp out graft and corruption"9 – proposes to supplant the will
of the more than 15 million voters who voted for President Aquino and the more than 80% of Filipinos
who now trust him, by imposing unreasonable restrictions on and impossible, unknowable standards for
presidential action. The Decision thereby prevents the fulfillment of the political contract that exists
between the Philippine President and the Filipino people. In so doing, the Court has arrogated unto itself
a power never imagined for it since the days of Marbury v. Madison10 when the doctrine of judicial
review was first laid down by the U.S. Supreme Court. The majority does not only violate the separation
of powers doctrine by its gratuitous intrusion into the powers of the President – which violation the
Decision seeks to deny. Nay, the majority created a situation far worse – the usurpation by the judiciary
of the sovereign power of the people to determine the priorities of Government.
The Majority Decision’s Expansive Views of the Powers of the Presidency and the Mandate of the
Aquino Government
The majority Decision starts with an expansive view of the powers of the Philippine presidency and
what this presidency is supposed to accomplish for the Filipino people:
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people convinced in
his sincerity and in his ability to carry out this noble objective catapulted the good senator to the
Presidency.11
Here we have the majority affirming that there exists a political contract between the incumbent
President and the Filipino people – that he must stamp out graft and corruption. It must be remembered
that the presidency does not exist for its own sake; it is but the instrument of the will of the people, and
this relationship is embodied in a political contract between the President and the people. This political
contract creates many of the same kinds of legal and constitutional imperatives under the social contract
theory as organic charters do. It also undergirds the moral legitimacy of political administrations. This
political contract between President Aquino and the Filipino people is a potent force that must be
viewed with the same seriousness as the 1987 Constitution, whose authority is only maintained by the
continuing assent thereto of the same Filipino people.
Then the Decision proceeds to affirm the power of the President to conduct investigations as a necessary
offshoot of his express constitutional duty to ensure that the laws are faithfully executed.12 It then
proceeds to explain that fact-finding powers must necessarily carry the power to create ad hoc
committees to undertake fact-finding. And because the PTC is only an ad hoc committee that is to be
funded from the approved budget of the Office of the President, the Executive Order that created it is
not a usurpation of any legislative power.
The Decision upholds in extensive affirmatory language what, since the creation of the Republic, has
been understood about the powers of the Presidency and the need for the effective exercise of the
investigatory powers of that office to serve state objectives. Unfortunately, it then breaks its own chain
of thought and shrinks the vista from its grand view of representative government to a view that is
myopic and logically infirm.
The Majority Decision’s Turn-Around to Unconstitutionally Restrict the Powers of the Aquino
Presidency, its Unpredictable Standard for "Reasonable Prioritization," and the Resulting Imposition of
an Impossible Condition on Aquino’s Campaign Promise, as Well as Its Internal Contradiction
Having strongly expounded on the need of President Aquino to fulfill his political contract with the
Filipino people to address graft and corruption, and his constitutional duty to ensure that the laws are
faithfully executed, the Court suddenly finds itself impermissibly restricting this power when the object
of the exercise of the Presidential powers of investigation under EO 1 focused on the reported misdeeds
of the Arroyo administration. From full support of the incumbent President and his constitutional
powers, the majority Decision reverses its track to unconstitutionally restrict his powers by effectively
denying him the right to choose the priority – in this case the Arroyo administration – in his graft-
busting campaign.
The reasoning of the Decision proceeds thus: (a) all past administrations are a class and to exclude other
past administrations is on its face unlawful discrimination; (b) the reasons given by the Solicitor General
for the limited scope of the intended investigation – administrative overburden if other past
administrations are included, difficulty in unearthing evidence on old administrations, duplication of
investigations already made – are either specious, irrelevant to the legitimate and noble objective of the
PTC to stamp out corruption, or beside the point and thus do not justify the discrimination; (c) to be
constitutional, the PTC must, "at least, have authority to investigate all past administrations"13 and
"must not exclude the other past administrations";14 (d) "[p]erhaps a revision of the executive issuance
so as to include the earlier past administrations would allow it to pass the test of reasonableness and not
be an affront to the Constitution";15 and (e) "reasonable prioritization is permitted," but "it should not
be arbitrary lest it be struck down as unconstitutional."16
The Decision is telling the President to proceed with his program of anti-corruption on the condition
that, when constituting a fact-finding commission, he must include "all past administrations" without
exception, save he cannot be expected to investigate dead presidents17 or those whose crimes have
prescribed. He may prioritize, but he must make sure such prioritization is not arbitrary.
In talking about an acceptable formulation for a fact-finding commission, it is as if the Decision is
talking past EO 1. The President has already made his fact-finding prioritization in EO 1, and his
prioritization is not arbitrary. The government has already explained why investigation of the Arroyo
administration is its priority – (a) the audit of an immediate past administration is usually where audits
begin; (b) the evidence of graft and corruption is more likely to still be intact; (c) the most immediate
deleterious effects of the reported graft and corruption of the immediate past administration will need to
be faced by the present administration; (d) the resources required for investigation of the immediate past
administration alone will take up all the resources of the PTC; and (e) other past administrations have
already been investigated and one past president has already been jailed. But this Court is saying that all
the above are not indicators of rational prioritization. Then, what is? This Court seems to have set an
inordinately high standard for reasonableness that is impossible to satisfy, primarily because it is
unknowable and unpredictable. The only conclusion is that there is no other standard out there
acceptable to the majority, and there never will be.18 Even the majority Decision gives no clue, and
perhaps the majority has no clue on what those reasonable standards are. As Justice Florentino Feliciano
said in his concurrence in Tañada v. Tuvera:19
x x x The enforcement of prescriptions which are both unknown to and unknowable by those subjected
to the statute, has been throughout history a common tool of tyrannical governments. Such application
and enforcement constitutes at bottom a negation of the fundamental principle of legality in the relations
between a government and its people.
This is the red herring – for the majority Decision to speak as if there were a way to "tweak" EO 1 so
that it becomes acceptable to the majority when in reality there is no way that can be done without loss
of dignity to the incumbent presidency. The tweaked EO, according to the Decision, must include all
past administrations in its coverage, and can identify its priority; but a reading of the Decision already
indicates that the moment the prioritization hints at focusing on the Arroyo administration, then the
majority is ready to once again strike it down. Such proposition is to require the Aquino administration
to engage in hypocrisy – to fact-find on "the elephant in the room" without talking about that elephant in
particular because the majority finds that to talk about that particular elephant without talking about all
other elephants is to deprive that particular elephant of its equal protection right. This Court has
imposed an unbearable and undignified yoke on the presidency. It is to require the Aquino Presidency to
pretend that addressing the reported graft and corruption of the Arroyo administration was never a major
campaign promise of this Presidency to the people.
It is incumbent upon any administration to conduct an internal audit of its organization – in this case, the
executive department. This is standard practice in the private sector; it should likewise be standard
practice for the public sector if the mandate of public accountability is to be fulfilled. No President
should be prevented from creating administrative structures to exact accountability; from conducting
internal audits and creating controls for executive operations; and from introducing governance reforms.
For the Court to do so would be to counter progress and to deny the executive department the use of best
practices that are par for the course in modern democracies.
The Decision contradicts itself by concluding that the graft and corruption fact-finding mandate of the
PTC is confined only to those incidents in the Arroyo administration. In the same breath, it
acknowledges that the express language of EO 1 indicates that the President can expand the focus of the
PTC at any time by including other past misdeeds of other administrations. In other words, the clear and
unmistakable language of EO 1 precludes any conclusion that the PTC’s investigation of graft and
corruption is confined only to the administration of President Arroyo. EO 1 should be read as
empowering the PTC to conduct its fact-finding on the Arroyo administration, and that this fact-finding
may expand to include other past administrations on the instruction of President Aquino.
The use of the word "only" in the majority Decision20 is unwarranted, as it indicates exclusivity of the
PTC’s focus on the Arroyo administration – an exclusivity that is incompatible with the unequivocally
non-exclusive language of Sec. 17 of EO 1.21 The litmus test that should have been applied by this
Court is whether or not EO 1 is unconstitutional for prioritizing fact-finding on the reported graft and
corruption of the Arroyo administration without foreclosing, but not guaranteeing, future investigation
into other administrations.
Unwarranted Creation of "Class of All Political Administrations" as the Object of Constitutional
Review by This Court
At the outset, it must be emphasized that EO 1 did not, for purposes of application of the laws on graft
and corruption, create two classes – that of President Arroyo and that of other past administrations.
Rather, it prioritized fact-finding on the administration of President Arroyo while saying that the
President could later expand the coverage of EO 1 to bring other past administrations under the same
scrutiny. Prioritization per se is not classification. Else, as all human activities require prioritization,
everyone in a priority list for regulation or investigation can make out a case that there is prima facie
classification, and that the prioritization is not supported by a reasonable objective. All acts of
government would have to come to a halt and all public offices would need to justify every plan of
action as to reasonableness of phases and prioritization. The step-by-step approach of legislative and
regulatory remedies – recognized as valid in Quinto v. COMELEC22 and in the case law23 cited by the
Decision – in essence says that prioritization is not classification, much less invalid classification.
The majority looks at the issue of equal protection by lumping into a single class all past
administrations,24 i.e., those of former Presidents Aguinaldo, Quezon, Osmeña, Laurel, Roxas, Quirino,
Magsaysay, Garcia, Macapagal, Marcos, Aquino, Ramos, Estrada and Arroyo. Justice Carpio makes the
case that recovery of ill-gotten wealth is imprescriptible. Then conceivably under the formulation of the
majority, all past administrations are required to be investigated. In fact, even with the exceptions
introduced by the Decision, its conclusory parts emphasize the need to include all past administrations
in the coverage of EO 1. It then pronounces that any difference in treatment between members of this
class is unequal protection, such that to treat the Arroyo administration differently from the
administration of President Aguinaldo is unconstitutional. After all, says the majority Decision,
corruption was reported in other past administrations as well.
The lumping together of all Philippine political administrations spanning 111 years, for purposes of
testing valid legislation, regulation, or even fact-finding is unwarranted. There is inherent illogic in the
premise of the Decision that administrations from the time of Aguinaldo to Arroyo belong to one
class.25
Assuming arguendo that all the political administrations can be categorized as one class, the test of
reasonableness has been more than met by EO 1, as extensively discussed by Justices Carpio, Carpio
Morales, Antonio Eduardo Nachura, and Roberto Abad. Let me just add to their voices by looking at the
constitutional problem before this Court from other angles.
The Majority Decision Indirectly Admits that the "Reasonableness Test" Has Been Satisfied in the Same
Breath that it Requires the Public to Live with an Unreal World View
To quote from the majority Decision’s discussion of the claim of violation of the equal protection
clause:
Although the purpose of the Truth Commission falls within the investigative powers of the President ...
.........
... It must not leave out or "underinclude" those that should otherwise fall into a certain classification.
.........
As elucidated in Victoriano v. Elizalde Rope Workers’ Union and reiterated in a long line of cases,
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by statute.
Equality of operation of statutes does not mean indiscriminate operation on circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality. All that is required of a valid
classification is that it be reasonable, which means that classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of the law; that it
must apply equally to each member of the class. The Court has held that the standard is satisfied if the
classification is based on a reasonable foundation or rational basis and is not palpably arbitrary.
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the
equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption during the previous administration"
only. The intent to single out the previous administration is plain, patent and manifest ...
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation
to the "previous administration" only.
... The OSG ventures to opine that "to include other past administrations, at this point, may
unnecessarily overburden the commission and lead it to lose its effectiveness." The reason given is
specious. It is without doubt irrelevant to a legitimate and noble objective of the PTC to stamp out or
"end corruption and the evil it breeds."
The probability that there would be difficulty in unearthing evidence or that the earlier reports involving
the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents
and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is
the PTC expected to conduct simultaneous investigations of previous administrations, given the body’s
limited time and resources. "The Law does not require the impossible" (Lex non cognit ad impossibilia).
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a century’s worth of graft cases. However, the fact remains that Executive Order
No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth,
must not exclude the other past administration. The PTC must, at least, have the authority to investigate
all past administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional. …
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the law should not in any way be circumvented. 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 determined and all public authority administered. Laws that do not conform
to the Constitution should be stricken down for being unconstitutional. While the thrust of the PTC is
specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must
be read together with the provisions of the Constitution. To exclude the earlier administrations in the
guise of "substantial distinctions" only an "adventure in partisan hostility." …
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions to the number included within a
class, but must be of such nature as to embrace all those who may thereafter be in similar circumstances
and conditions. Furthermore, all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the members of the class must
be brought under the influence of the law and treated by it in the same way as members of the class."
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the
equal protection clause" ... In several instances, the underinclusiveness was not considered a valid
reason to strike down a law or regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the "step by step" process. "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least
three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even
mention any particular act, event or report to be focused on unlike the investigative commissions created
in the past. "The equal protection clause is violated by purposeful and intentional discrimination."
... Although Section 17 allows the President the discretion to expand the scope of the investigations of
the Truth Commission so as to include the acts of graft and corruption, it does not guarantee that they
would be covered in the future. Such expanded mandate of the commission will still depend on the
whim and caprice of the President. If he would decide not to include them, the section would then be
meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was
"crafted to tailor-fit the prosecution of officials and personalities of the Arroyo administration."26
(Emphasis and underscoring supplied)
In an earlier portion, I discussed the findings of the majority Decision regarding the mandate of
President Aquino from the electorate and the vast expanse of his powers to investigate and ensure the
faithful execution of the laws. The majority concedes the reasonableness of the purpose of EO 1, but, as
shown in the above excerpts, it contests the manner by which President Aquino proposes to achieve his
purpose. The very discussion above, however, demonstrates the self-contradiction and unreality of the
majority Decision’s worldview.
First, the Decision concedes that classification per se is not forbidden in the process of legislation or
regulation. Indeed, cases identified by the Decision, when examined, pronounce that the legislature and
the regulators must necessarily pick and choose in the process of their work.
Second, in legislation or regulation, a step-by-step process resulting in a classification of those that are
immediately included therein versus those that have yet to be included in the future is constitutional.
Third, the Decision also concedes that the under-inclusiveness of remedial measures is not
unconstitutional, especially when the purpose can be attained through inclusive future legislation or
regulation. I note of course, that the Decision states in an earlier part that "under-inclusiveness" makes
for invalid classification. It is important to note the observation of Justice Carpio that the creation of the
Presidential Commission on Good Government (PCGG) has consistently been upheld by the Court
despite constitutional challenges on equal protection grounds. The PCGG’s charter has the same "future
inclusion" clause as Section 17 of EO 1; yet, the majority Decision ignores jurisprudence on the PCGG.
Fourth, the Decision, through a quoted case,27 observes that valid under-inclusiveness can be the result
of either inadvertence or deliberateness.
Regardless of the foregoing findings and discussions, which in effect support its validity, EO 1 is struck
down by the Decision. The majority creates an argument for the invalidity of EO 1 by quoting only from
general principles of case law and ignoring specific applications of the constitutional tests for valid
classification. Instead of drawing from real-world experiences of classification decided in the past by
the Court, the Decision relies on general doctrinal statements normally found in cases, but divorces
these doctrinal statements from their specific contextual setting and thereby imposes unrealistic
standards for presidential action.
The law has always been that a class can be validly distinguished from others if there is a reasonable
basis for the distinction. The reasonableness of the classification in EO 1 was amply demonstrated by
the Solicitor General, but the majority simply responds dismissively that the distinctions are superficial,
specious and irrelevant, without clearly explaining why they are so. Contrary to the conclusion of the
majority, jurisprudence bear out the substantial and reasonable nature of the distinction.
With respect to the first reason for the classification claimed by the Solicitor General – that other past
administrations have already been investigated and, hence, there is constitutional basis not to include
them in the immediate focus of the investigation – the case of Luna v. Sarmiento28 supports the
conclusion that the distinction is constitutional.
Commonwealth Act No. (CA) 703, which was sustained by Luna v. Sarmiento, created two sets of
situations – one in which persons were delinquent in their tax payments for half of the year 1941 and the
entirety of the years 1942-45 (during the Japanese occupation), and another in which persons had paid
their taxes for the said periods. Only the first set of persons was benefited by the tax amnesty provision
of CA 703. The law was silent on the treatment of the tax payments made by compliant taxpayers
during that period. A claim of unequal protection was raised. The Court said:
Does this provision cover taxes paid before its enactment, as the plaintiff maintains and the court below
held, or does it refer, as the City Treasurer believes, only to taxes which were still unpaid?
There is no ambiguity in the language of the law. It says "taxes and penalties due and payable," the
literal meaning of which is taxes owed or owing. (See Webster's New International Dictionary.) Note
that the provision speaks of penalties, and note that penalties accrue only when taxes are not paid on
time. The word "remit" underlined by the appellant does not help its theory, for to remit is to desist or
refrain from exacting, inflicting, or enforcing something as well as to restore what has already been
taken. (Webster's New International Dictionary)
We do not see that literal interpretation of Commonwealth Act No. 703 runs counter and does violence
to its spirit and intention, nor do we think that such interpretation would be "constitutionally bad" in that
"it would unduly discriminate against taxpayers who had paid in favor of delinquent taxpayers."The
remission of taxes due and payable to the exclusion of taxes already collected does not constitute unfair
discrimination. Each set of taxes is a class by itself, and the law would be open to attack as class
legislation only if all taxpayers belonging to one class were not treated alike. They are not.29
In other words, within the class of taxpayers obligated to pay taxes in the period from the second half of
1941 to the end of 1945 are two subclasses – those who did not pay their taxes and those who did. By
the same kind of reasoning, within the class of political administrations, if past administrations have
already been the subject of a fact-finding commission, while one particular administration has not been
so, that alone is a good basis for making a distinction between them and an administration that has not
yet been investigated. There is a constitutionally valid basis, therefore, to distinguish between the
Marcos, Ramos, and Estrada administrations – which have already been the subject of fact-finding
commissions – and the Arroyo administration.
With respect to the second reason for the classification – that it would be unduly oppressive and
burdensome to require the PTC to investigate all administrations – case law holds that administrative
constraints are a valid basis for classification.
In British American Tobacco v. Camacho,30 the Court declared the legislative classification freeze on
the four-tiered system of cigarette taxes as a valid and reasonable classification arising from practicality
and expediency.31 Thus, freezing the tax classification of cigarettes based on their 1996 or 2003 net
retail prices was found to be the most efficient way to respond to Congress’ legitimate concern with
simplifying tax collections from cigarette products. In a similar vein, the President believed that the
most efficient and effective way of jump-starting his administration’s fight against corruption was to
focus on one freezable time frame – the latest past administration. The legitimate and valid
administrative concern is obviously the limited resources and time available to the PTC to make a
comprehensive yet valuable fact-finding report with recommendations to address the problem of graft
and corruption in a timely and responsive manner within a period of two years. Hence, there can be no
violation of equal protection based on the fact that the PTC’s investigation is limited to the investigation
of what can be feasibly investigated, a classification based on the Executive’s practical administrative
constraints.
With respect to the third reason for the classification made by EO 1, one that lumps together the various
temporal reasons, the Solicitor General describes it thus:
... The segregation of the preceding administration as the object of fact-finding is warranted by the
reality that unlike with administration long gone, the current administration will most likely bear the
immediate consequence of the policies of the previous administration.
... The classification of the previous administration as a separate class for investigation lies in the reality
that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully
executed, are more easily established in the regime that immediately precede the current administration.
The temporal dimension of every legal argument is supremely important, imposed by the inevitable fact
that this world and its inhabitants are creatures of space and time. Every public official, therefore, must
accomplish his duties within the constraints of space and time. To ignore the limitation of time by
assuming that a public official has all the time in the world to accomplish an investigative goal, and to
force the subject of the universe of his scrutiny to comprise all past administrations, is the height of
legal unreasonableness. In other words, according to the majority Decision, within the limited term of
President Aquino, and within the more severely limited life span of an ad hoc fact-finding committee,
President Aquino must launch his pursuit to eradicate graft and corruption by fact-finding into all past
administrations spanning multitudes of decades. Truth commissions, of which the PTC according to
Chief Justice Corona is one, are all highly limited in investigations, statement taking, and transcribing
information.32 In order to be swift and independent, truth commissions operate within strict time
constraints. They are also restricted in the subject matter they can review.33 This is the real world of
truth commissions, not that imagined by the majority.
The Majority Decision Grievously Omitted the Analytical Process Required of this Court in Equal
Protection Claims
A judicial analysis must not stop at reciting legal doctrines which are its mere beginning points, but,
especially in equal protection claims, it must move forward to examine the facts and the context of the
controversy. Had the majority taken pains to examine its own cited cases, it would have discovered that
the cases, far from condemning EO 1, would actually support the constitutionality of the latter.
The majority Decision and the separate opinion of Chief Justice Corona rely greatly on Victoriano v.
Elizalde Rope Workers Union34 for their main doctrinal authority. The Court in that case held that the
questioned classification was constitutional, and it went through a step-by-step analysis to arrive at this
conclusion. To clarify the kind of analytical process that must go into an examination of the equal
protection claim, let us quote from the case in extenso:
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects
which ban their members from joining labor unions, in violation of Article III, Section 1(7) of the 1935
Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or protection
to labor organizations.
... that said Act does not violate the constitutional provision of equal protection, for the classification of
workers under the Act depending on their religious tenets is based on substantial distinction, is germane
to the purpose of the law, and applies to all the members of a given class...
... All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship
does not render it unconstitutional; that if any reasonable basis may be conceived which supports the
statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of
the constitution in favor of the constitutionality of legislation should be adopted.
... In Aglipay v. Ruiz, this Court had occasion to state that the government should not be precluded from
pursuing valid objectives secular in character even if the incidental result would be favorable to a
religion or sect...
The primary effects of the exemption from closed shop agreements in favor of members of religious
sects that prohibit their members from affiliating with a labor organization, is the protection of said
employees against the aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic insecurity
due to unemployment, which is a serious menace to the health, morals, and welfare of the people of the
State, the Act also promotes the well-being of society. It is our view that the exemption from the effects
of closed shop agreement does not directly advance, or diminish, the interests of any particular religion.
Although the exemption may benefit those who are members of religious sects that prohibit their
members from joining labor unions, the benefit upon the religious sects is merely incidental and
indirect. The "establishment clause" (of religion) does not ban regulation on conduct whose reason or
effect merely happens to coincide or harmonize with the tents of some or all religions. The free exercise
clause of the Constitution has been interpreted to require that religious exercise be preferentially aided.
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction
is based on a reasonable foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters within
its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. Neither is it
necessary that the classification be made with mathematical nicety. Hence legislative classification may
in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they
may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies
employees and workers, as to the effect and coverage of union shop security agreements, into those who
by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose
religion does not prohibit membership in labor unions. The classification rests on real or substantial, not
merely imaginary or whimsical, distinctions...
...The classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its purpose. The purpose of the law is
precisely to avoid those who cannot, because of their religious belief, join labor unions, from being
deprived of their right to work and from being dismissed from their work because of union shop security
agreements.
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of
its enactment. The law does not provide that it is to be effective for a certain period of time only. It is
intended to apply for all times as long as the conditions to which the law is applicable exist. As long as
there are closed shop agreements between an employer and a labor union, and there are employees who
are prohibited by their religion from affiliating with labor unions, their exemption from the coverage of
said agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is evident from its provision.
The fact that the law grants a privilege to members of said religious sects cannot by itself render the Act
unconstitutional, for as We have adverted to, the Act only restores to them their freedom of association
which closed shop agreements have taken away, and puts them in the same plane as the other workers
who are not prohibited by their religion from joining labor unions. The circumstance, that the other
employees, because they are differently situated, are not granted the same privilege, does not render the
law unconstitutional, for every classification allowed by the Constitution by its nature involves
inequality.
The mere fact that the legislative classification may result in actual inequality is not violative of the
right to equal protection, for every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise
reasonable does not offend the constitution simply because in practice it results in some inequality.
Anent this matter, it has been said that whenever it is apparent from the scope of the law that its object is
for the benefit of the public and the means by which the benefit is to be obtained are of public character,
the law will be upheld even though incidental advantage may occur to individuals beyond those enjoyed
by the general public.35
The above analysis is the kind of processed reasoning to which EO 1 should be subjected. The majority
Decision falls short of satisfying this process.
On the first test. Is the classification reasonable, based on substantial distinctions that make for real
difference? The government has already given several reasons why the distinction between the
administration of President Arroyo is different from other past administrations. The distinction does not
lie in any claim that corruption is the sole hallmark of the Arroyo administration – far from it. The
distinction lies in reason – administrative constraints, availability of evidence, immediate past acts, non-
prescription of causes of actions – all of which are not whimsical, contrived, superficial or irrelevant. It
must also be emphasized that the Court, as quoted above, recognizes that in many cases, the
classification lies in narrow distinctions. We have already discussed how in Luna v. Sarmiento the Court
recognized subclasses within a class and upheld the narrow distinction made by Congress between these
subclasses. So if past administrations have already been the subject of a fact-finding commission, while
one particular administration has not been so subjected, that alone is a good basis for making a
distinction between them and an administration that has not yet been investigated. It must be
emphasized that the Victoriano case, which the majority heavily relied on, reiterated that as long as
there is a public benefit to be obtained in a government action, incidental advantage (and conversely,
disadvantage) to a group is not sufficient to upset the presumption of constitutionality of a government
action.
On the second test. The classification is germane to the purpose of the law – to get a headstart on the
campaign against graft and corruption. If the investigation into the root of corruption is to gain traction,
it must start somewhere, and the best place to start is to examine the immediate past administration, not
distant past administrations.
On the third test. Of course this is not relevant in this case, for the law being examined in Victoriano
was one that granted prospective rights, and not one that involves fact-finding into past acts as with EO
1.
On the last test. This asks whether the law applies equally to all members of the segregated class. It
must be emphasized that in the Victoriano case, this last test was applied not to all the workers in the
bargaining unit, but it was applied to the subclass of workers whose religions prohibit them from joining
labor unions. In application to this case, the question should then have been, not whether there is
equality of treatment between all political administrations under EO 1, but whether within the subclass
of third level public officials of the Arroyo administration – that is, the subject of EO 1 – there is
unequal treatment. Obviously, the answer is no. The majority applied the last test backwards by asking
whether there is equality of treatment among all political administrations and concluding that there was
no equality of treatment, even before it could answer the first test of whether the classification between
the Arroyo administration and other past administrations was reasonable.
It must be emphasized that the Victoriano case on which the majority heavily relies states in several
parts that classification must necessarily result in inequality of treatment and that such inequality does
not give rise to a constitutional problem. It is the lack of reason that gives rise to a constitutional issue,
not the inequality per se. To quote again:
The mere fact that the legislative classification may result in actual inequality is not violative of the
right to equal protection, for every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise
reasonable does not offend the constitution simply because in practice it results in some inequality.
Anent this matter, it has been said that whenever it is apparent from the scope of the law that its object is
for the benefit of the public and the means by which the benefit is to be obtained are of public character,
the law will be upheld even though incidental advantage may occur to individuals beyond those enjoyed
by the general public.36
Selective Investigation, Enforcement and Prosecution
Fact-finding or investigation can only begin by identifying the phenomenon, event or matter that is to be
investigated. Then it can only proceed if the fact-finder, or the authority under whom he works,
identifies or selects the persons to be investigated.
The validity of the Feliciano Commission created by Administrative Order No. (AO) 78 of former
President Arroyo is affirmed by the majority Decision. AO 78 zeroed in on the investigation of "the
rebellion of misguided military officers last July (2003)," in order "to investigate the roots of the
rebellion and the provocations that inspired it," and concludes that "this rebellion is deplorable." AO 78
labeled the officers involved in the July 2003 Oakwood rebellion as "misguided" and cast their actions
as "rebellion" and "deplorable." President Arroyo selected a class – the officers involved in the July
2003 "rebellion" – in contradistinction to all other all military officers who had ever rebelled against the
Republic since its founding. The acts were stigmatized as acts of "rebellion," a crime punishable by law.
The majority does not condemn this classification made in AO 78 by President Arroyo which uses
condemnatory language on the class of people targeted. In contrast, the language of EO 1 of President
Aquino is mild, willing to grant the administration of President Arroyo the benefit of the doubt by using
adjectives to denote the tentativeness of the observations on corruption such as "alleged" and "reported"
instead of treating them as actuality. AO 78 is affirmed while EO 1 is struck down; no explanation for
the differing treatment is made by the majority Decision. This difference in treatment is disturbing
considering the long history of the treatment by courts of the defense of selective investigation and
prosecution.
In fulfilling its duty to execute the laws and bring violators thereof to justice, the Executive is presumed
to undertake criminal prosecution "in good faith and in a nondiscriminatory fashion."37
The government has broad discretion over decisions to initiate criminal prosecutions38 and whom to
prosecute.39 Indeed, the fact that the general evil will only be partially corrected may serve to justify
the limited application of criminal law without violating the equal protection clause.40 Mere laxity in
the enforcement of laws by public officials is not a denial of equal protection.41
Although such discretion is broad, it is not without limit.42 In order to constitute denial of equal
protection, selective enforcement must be deliberately based on unjustifiable or arbitrary classification;
the mere failure to prosecute all offenders is no ground for the claim of a denial of equal protection.43
To support a claim of selective prosecution, a defendant must establish a violation of equal protection
and show that the prosecution (1) had a discriminatory effect and (2) was motivated by a discriminatory
purpose.44 First, he must show that "he has been singled out for prosecution while other similarly
situated generally have not been proceeded against for the type of conduct forming the basis of the
charge against him."45 Second, he must prove that his selection for prosecution was invidious or in bad
faith and was "based on impermissible considerations such as race, religion, or the desire to prevent the
exercise of constitutional rights."46 In American constitutional history, it is the traditionally oppressed –
racial or religious minorities and the politically disenfranchised – who have succeeded in making a case
of unequal protection when their prejudiced status is shown to be the principal invidious or bad faith
consideration for the selective prosecution.
The standard for demonstrating selective prosecution therefore is demanding: a "presumption of
regularity supports prosecutorial decisions and in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official functions."47
In People v. Dela Piedra,48 the Philippine Supreme Court, adhering to the precedents set in American
jurisprudence, likewise denied the equal protection argument of an illegal recruiter, who claimed that
others who had likewise performed acts of recruitment remained scot-free:
The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by
itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity
to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a
violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful
administration by officers of a statute fair on its face, resulting in its unequal application to those who
are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it
an element of intentional or purposeful discrimination. This may appear on the face of the action taken
with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a
discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose
is not presumed, there must be a showing of "clear and intentional discrimination." Appellant has failed
to show that, in charging appellant in court, that there was a "clear and intentional discrimination" on
the part of the prosecuting officials.
The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence
before it can justify a reasonable belief that a person has committed an offense. The presumption is that
the prosecuting officers regularly performed their duties, and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to
overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is
insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the
laws. (Emphasis supplied)
In the instant case, the fact that other administrations are not the subject of the PTC’s investigative aim
is not a case of selective prosecution that violates equal protection. The Executive is given broad
discretion to initiate criminal prosecution and enjoys clear presumption of regularity and good faith in
the performance thereof. For petitioners to overcome that presumption, they must carry the burden of
showing that the PTC is a preliminary step to selective prosecution, and that it is laden with a
discriminatory effect and a discriminatory purpose. However, petitioner has sorely failed in discharging
that burden.
The presumption of good faith must be observed, especially when the action taken is pursuant to a
constitutionally enshrined state policy such as the taking of positive and effective measures against graft
and corruption.49 For this purpose, the President created the PTC. If a law neither burdens a
fundamental right nor targets a suspect class, the Court must uphold the classification, as long as it bears
a rational relationship to some legitimate government end.50
The same presumption of good faith and latitude in the selection of what a truth commission must fact-
find must be given to the President. Too wide a mandate would no doubt drown the commission in a sea
of history, in the process potentially impeding the more forward-looking aspects of its work.51 To
require the PTC to look into all acts of large-scale corruption in all prior administrations would be to
make truth-telling overly comprehensive, resulting in a superficial fact-finding investigation of a
multitude of allegations without depth and insightful analysis. The Philippines’ past experience with ad
hoc investigating commissions has been characterized by a focus on the truth regarding a key period or
event in our collective history and by a reasonable time frame for achieving their purpose, i.e., the
assassination of Ninoy Aquino,52 the 1989 coup d’état,53 the 2003 Oakwood mutiny,54 the extra-
judicial killings of media and activists,55 and private armed groups.56
Here, petitioners who are not even the injured parties are invoking the equal protection clause. Their
standing to raise this issue is seriously contested in the Dissent of Justice Carpio Morales. They do not
claim in any manner that they are the subject of EO 1. Courts have warned that the right of equal
protection of the law "may not be perversely invoked" to justify desistance by the authorities from the
prosecution of a criminal case, just because not all of those who are probably guilty thereof were
charged.57 This characterization would apply especially if the ones who invoke the equal protection
clause are those who are not injured by the contested executive action.
EO 1 activities are at most initiatory investigations. There is no preliminary investigation – much less
prosecution – to be conducted under the auspices of EO 1. The PTC is tasked to "collect, receive, review
and evaluate evidence related to or regarding the cases of large scale corruption,"58 tasks that
constitutes nothing more than a general inquiry into such reported cases in the previous administration.
Similar to an initiatory police investigation, the PTC is tasked with general fact-finding to uncover the
truth of the events pertaining to an alleged unsolved crime. To strike down the PTC’s mandate to
investigate the previous administration simply because other administrations are not immediately
included is tantamount to saying that a police investigation of a recent murder case is violative of equal
protection because there are other prior yet equally heinous murders that remain uninvestigated and
unsolved by the police.
What renders the plaint regarding an alleged violation of the equal protection clause ridiculous is that it
is being raised at the inception stage for the determination of possible criminal liability, where threat to
liberty is most absent. In contrast, with respect to petitions to stop later and more freedom-threatening
stages in the determination of criminal liability such as in formal criminal investigations and
prosecutions, Philippine courts instinctively reject the defense of a suspect or accused that the
investigation is illegitimate because others who may have also violated the relevant rule, are not being
investigated.59 In Gallardo v. People,60 the Supreme Court held that there was no violation of the equal
protection clause when the Ombudsman recommended the filing of an information against a public
officer, even if it had previously dismissed sixteen (16) other cases of similar factual circumstances:
The contention that petitioners’ right to equal protection of the law has been transgressed is equally
untenable. The equal protection clause requires that the law operates uniformly on all persons under
similar circumstances or that all persons are treated in the same manner, the conditions not being
different, both in privileges conferred and the liabilities imposed. It allows reasonable classification. If
the classification is characterized by real and substantial differences, one class may be treated
differently from another. Simply because the respondent Ombudsman dismissed some cases allegedly
similar to the case at bar is not sufficient to impute arbitrariness or caprice on his part, absent a clear
showing that he gravely abused his discretion in pursuing the instant case. The Ombudsman dismissed
those cases because he believed there were no sufficient grounds for the accused therein to undergo
trial. On the other hand, he recommended the filing of appropriate information against petitioners
because there are ample grounds to hold them for trial. He was only exercising his power and
discharging his duty based upon the constitutional mandate of his office. Stated otherwise, the
circumstances obtaining in the numerous cases previously dismissed by the Ombudsman are entirely
divergent from those here existing. (Emphasis supplied)
Even on the assumption that the recommendation of the PTC is that acts of graft and corruption were
indeed committed by the Arroyo administration, there is still a long way to go before the
recommendation would ripen to criminal prosecution, much less conviction. The Ombudsman must
accept the referral and conduct its own preliminary investigation. It must find probable cause, then file
the appropriate information. The Court must then preside over a criminal trial at which the findings of
the PTC have no conclusive effect on the Court’s ultimate judgment, in the same way they treated the
findings of the Davide Commission in Kapunan v. Court of Appeals:61
We do not wish to denigrate from the wisdom of the Davide Commission. However, its findings cannot
be deemed as conclusive and binding on this Court, or any court for that matter. Nothing in R.A. No.
6832 mandates that the findings of fact or evaluations of the Davide Commission acquire binding effect
or otherwise countermand the determinative functions of the judiciary. The proper role of the findings of
fact of the Davide Commission in relation to the judicial system is highlighted by Section 1 (c) of R.A.
No. 6832, which requires the Commission to ‘[t]urn over to the appropriate prosecutorial authorities all
evidence involving any person when in the course of its investigation, the Commission finds that there
is reasonable ground to believe that he appears to be liable for any criminal offense in connection with
said coup d'état.’
Whatever factual findings or evidence unearthed by the Davide Commission that could form the basis
for prosecutorial action still need be evaluated by the appropriate prosecutorial authorities to serve as
the nucleus of either a criminal complaint or exculpation therefrom. If a criminal complaint is indeed
filed, the same findings or evidence are still subject to the normal review and evaluation processes
undertaken by the judge, to be assessed in accordance with our procedural law. (Emphasis and
underscoring supplied)
Who Fears the Truth?
Truth commissions operate on the premise that the truth – if faced squarely, documented thoroughly,
and acknowledged officially – will reduce the likelihood that a repetition of government abuses will
recur in the future.62 Official acknowledgment of the truth is extremely powerful in the healing process,
especially in an atmosphere previously dominated by official denial.63 Aside from their cathartic value,
truth commissions like the PTC can be useful in uncovering the causes and patterns that led to such
corruption, if it indeed existed, so that it may be prevented in the future. The absence of any form of
accountability for public officials’ past misconduct of a grave nature and massive scale will promote a
culture of impunity. If the present administration does not demonstrate that it can hold accountable
persons who committed acts of corruption, such inability may be interpreted as a "license to engage in
further acts of corruption"64 and embolden public officials to steal from the government coffers more
often and in greater quantity.
The Concurring Opinion of my esteemed colleague Justice Brion speaks to the fear that the PTC would
be a mind-conditioning commission such that if the Ombudsman, the Sandiganbayan or the Supreme
Court itself were to reject the PTC’s findings, they would incur the ire of the people. The potential
imminence of public wrath would thus serve as a deterrent to rejection (and an incentive to acceptance)
of the findings of the PTC. He regards the release of the conclusions of the PTC as a "priming"
mechanism upon the public, the Ombudsman and the Court to concur with the PTC’s way of thinking.
He objects to the PTC’s appropriation of the word "truth" and assumes that all conclusions contrary to
the PTC’s would be more likely labeled as "untruth." According to the Concurring Opinion, because
President Aquino is highly trusted by Filipinos, then repeated "truth" from him or his government would
be believed, wholesale and with finality, by a credulous people. This would thus, the Concurring
Opinion states, bring undue pressure to bear on the Ombudsman, the Sandiganbayan, and the Supreme
Court: in the event of any of these bodies "go[ing] against the Commission’s report," the consequent
public perception that said body sided with an "untruth" would compromise "the authority,
independence, and even the integrity of these constitutional bodies ... to the prejudice of the justice
system."65 Justice Brion theorizes that, in the light of the potential of the Commission’s influence to
"prime the public" and "go beyond the level of priming" in a way that "can affect the public
environment as well as the thinking of both the decision makers in the criminal justice system and the
public in general," the PTC’s primary role is "negated in actual application by the title Truth
Commission and its truth-telling function."66 According to the Concurring Opinion, this renders the
Commission an "unreasonable means to a reasonable objective."67 I believe these arguments betray a
very poor view of the Filipino people and that this view lies at the root of his "due process" problem.
Woven as binding threads throughout the Concurring Opinion are a denial of an imbalance of power and
an unwillingness to see it shift in favor of a weaker group seeking redress for the perpetration of
injustice against its members. It is an oft-observed phenomenon that when there are attempts to address
past abuses committed by a powerful group, and when steps are taken to rectify the systemic
inequalities, members of the powerful group decry the threats represented by these efforts to rebalance
the scales. In this manner cries and accusations of reverse "discrimination" and "persecution" are raised
by persons who have to answer to the demands of those seeking the righting of past wrongs. This
reaction may be viewed as part of a larger pattern of backlash, meant to both "lash back" against those
perceived to be behind the threat to the security of power and to return the system to the state it
occupied before attempts to seek redress were made.68 In the United States, this pattern is evident in
various bills, policies and initiatives – from the campaign rhetoric of a presidential contender,
immigration bills, and laws on language to university admissions policies – that aim to challenge and
minimize any gains made by disadvantaged and subordinated groups over the past years.69
To be sure, the differences both in history and circumstance, between the backlash experienced by
various disprivileged groups in the U.S. and the situation at hand, are not insignificant. However, the
parallels that can be drawn are striking and unsettling. In our present context, it is the Filipino people – a
great majority of whom have been disprivileged by institutions that heavily favor the ruling elite – that
have suffered the damaging consequences of graft and corruption. It is the Filipino people who have
been wronged by past abuses and systematic inequality; and it is they who now desire justice in truth. In
the Philippine context, the pre-redress state was that of an imbalance so great it allowed the immunity of
past high officials (the privileged class) from public accountability; members from such group will try
to return to that state by seeking to continue eluding accountability.
By ignoring the Filipino public’s experience as a witness to the frustration of attempts to hold the past
administration accountable for its reported misdeeds, and framing it instead as a group that stands ready
to convict past officials at the bar of public opinion, the Concurring Opinion turns social reality on its
head. It minimizes the status of the Filipino people as a group wronged by the imbalance of power and
the betrayal of public trust. It ignores the need of this group to see these rectified. It ascribes an excess
of strength to public opinion and grounds its logic on fear of the public acting as an angry mob. It does
not attribute the proper importance to the active, participatory role the Filipino people desire to take in
the process of dealing with the possible misdeeds of the past.
Implicit in Justice Brion’s Concurring Opinion are the roles the public is expected to take: that of
passive observer, receiver of information and susceptible to the branding of "truth" and its repetition;70
and that of a source of pressure. In the latter role, the Concurring Opinion envisions the Filipino people,
having adjudged guilt according to what it was told by the PTC and the media, wielding the threat of
public disapproval against the Ombudsman and the judiciary so as to shift the burden to these bodies to
demonstrate proof and the basis for their actions if they were to disagree with the findings of the PTC.71
This is gross speculation. It does not follow that repetition of information guarantees the acceptance of
its veracity; to make that logical leap in this instance is to insinuate that repetition would rob the Filipino
people of the capacity to make distinctions between what to accept and what to reject. Neither does it
follow that the Ombudsman and the judiciary must inevitably accede to public clamor, or that the entry
of public opinion into the discussion would cause a "qualitative change in the criminal justice system"
and weaken "reliance on the law, the rules and jurisprudence."72
The public does not need sheltering from the "potentially prejudicial effects of truth-telling." Nor is the
public to be viewed as unwitting victims to "a noisy minority [who] can change the course of a case
simply because of their noise and the media attention they get."73 The Filipino people have a genuine
stake in the addressing of abuses possibly committed by the past administration and are entitled to
information on the same.
Striking down efforts to give the public information regarding the misdeeds of powerful officials sends
a signal of the continuing dominance of "might makes right" and the futility of attempting to hold public
officials accountable for their actions. Conversely, by carrying out investigations of the past actions of
public officials, and by holding up its results to public scrutiny and criticism, the government reinforces
respect for the rule of law and educate the people on the nature and extent of past wrongdoing.74
Moreover, the characterization of public discussion – the "second forum" – as an inappropriate venue
for the release of the PTC's findings devalues the utility and meaning that truth possesses for the
aggrieved group, and denigrates the need for the construction and repair of the group’s collective
memory. Indeed, the Concurring Opinion implies that the PTC's influence on public perceptions – and
consequently the shaping of the collective memory of Filipinos – will only instigate more injustice.
To the contrary, the need to shape collective memory as a way for the public to confront injustice and
move towards a more just society should not be diminished or denied. The Concurring Opinion
disregards the significance to justice of what is seen and remembered and eliminates the vital role of the
people themselves in "constructing collective memories of injustice as a basis for redress."75 This
disregard need not prevail. There is much value to be found in memory, as Hom and Yamamoto
recounted:
For many of the 10,000 Philippine citizens tortured and murdered for their political opposition to the
former Ferdinand Marcos regime, reshaping memory became both a means to challenge injustice and a
psychological end in itself. Consider the anguish of the family of Archimedes Trajano, a college student
who posed a mildly critical question to Marcos's daughter at a forum and was whisked away, tortured
for days, and thrown off a building. For his family, and thousands of others, there existed the need to
create a new memory beyond the excruciating story of personal loss and suffering – a memory that
included a sense of social justice and government accountability. To write this new memory
collectively, many families, lawyers, bureaucrats risked much in the Philippines to aid the thirteen-year
human rights multidistrict class action litigation in the United States.76
While it is true that public opinion will be influenced by the information that the public can access, it
would be specious to claim that the possible turning of the tide of public opinion against those subject to
investigation is tantamount to a conviction before the court of the Filipino people. To declare the
Filipino public undeserving of the truth on the grounds of its supposed lack of capacity to deal with the
truth and its alleged susceptibility to the "priming" effect of the PTC's findings, while ignoring the
public’s need to know the truth and to seek redress for wrongs, is to deny the public the means to move
towards social justice.
In Razon v. Tagitis,77 the Court, speaking through no less than Justice Brion himself, affirmed the grant
of the Writ of Amparo petitioned by the wife of Engineer Morced Tagitis, and touched on the "the right
of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress and results of the investigation," as expressed in the
United Nations Declaration on the Protection of All Persons from Enforced Disappearance. It would be
inconsistent for this Court not to afford the same level of openness and accountability in enforced
disappearances of individuals to allegations of criminal acts of massive corruption committed against
the entire Philippine nation, under the fundamental premise of Razon v. Tagitis that the Filipino have
the right to know and can handle the truth. The public’s right to know78 and the concomitant public
policy of full public disclosure79 support the fact-finding mandate of the PTC to uncover the truth of
these allegations and reports in the Arroyo administration.80 Justice Brion’s Concurring Opinion does
not lay down enough legal basis for his argument that the PTC has to be struck down due to the
possibility of bias to be created in the public mind through public reports of the PTC and the inordinate
pressure this bias will bring on the Ombudsman and the judiciary. The Philippine judiciary has had
more than a century’s worth of experience dealing with judicial cases and criminal investigations under
the harsh light of public scrutiny, yet not one case or investigation has been stopped on the simple basis
of the public forming a strong opinion on them and voicing this opinion in a loud manner.81 A judge is
expected to act impartially and independently, under any set of circumstances, with or without the
public as witness. This is the role of a judge and if the neutrality required of a judge is not maintained,
the fault lies not in the creation of a fact-finding commission that started the search for truth, but in the
judge’s character. To this end, the statement of the Court in People v. Sesbreño82 on undue publicity
and its effect on the right of the accused is worth recalling:
x x x Besides, a thorough review of the records yields no sufficient basis to show that pervasive
publicity unduly influenced the court's judgment. Before we could conclude that appellant was
prejudiced by hostile media, he must first show substantial proof, not merely cast suspicions. There
must be a showing that adverse publicity indeed influenced the court's decision, as held in Webb v. De
Leon, 247 SCRA 653 (1995) and People v. Teehankee, 249 SCRA 54 (1995).
"[T]o warrant a finding of prejudicial publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the barrage of publicity."
"Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of the members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out
of touch with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose their impartiality. . . . Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure
to publications and publicity stunts does not per se infect their impartiality.
"At best appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity which is incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not discharged the burden. (Italics in the
original)"
Absent a persuasive showing by the appellant that publicity prejudicial to his case was responsible for
his conviction by the trial judge, we cannot accept his bare claim that his conviction ought to be
reversed on that ground.
Justice Cardozo, the Judge and Society
In his Concurring Opinion, Justice Brion quotes Justice Benjamin Cardozo of the United States
Supreme Court in the context of "what the repeated" "truth from a generally trusted government can
achieve" and "the effect of outside influence on judging." The Concurring Opinion uses quotations from
Justice Cardozo's book, The Nature of the Judicial Process, to drive home its points on how "the
Commission's influence can go beyond the level of priming and can affect the public environment as
well as the thinking of both the decision makers in the criminal justice system and the public in general"
and on the "potential prejudicial effects of truth-telling."83
The source of the quotations featured in Justice Brion's Concurring Opinion is entitled "Adherence to
Precedent. The Subconscious Element in the Judicial Process. Conclusion," fourth in a series of lectures
delivered by Justice Cardozo at Yale University and subsequently published as a book. In the lecture,
Justice Cardozo spoke about the gaps left by absence of precedents in systems of law, the development
of principles to address these gaps, and adherence to the rule of precedent. With regard to the latter he
expressed his belief that "when a rule, after it has been duly tested by experience, has been found to be
inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank
avowal and full abandonment."84 Building on this principle, he discussed the rule of precedent in
application, and from there went on to survey judicial methods, comparing "static" with "dynamic"
precedents, narrating his personal struggles first to find certainty, then to reconcile himself with
uncertainty.
Throughout all this, one forms the image of a man fully aware of the doubts and tensions that beset a
judge, keenly cognizant of the limitations of his position and the temporal nature of even those
principles of whose development he earlier spoke: "I have grown to see that the process in its highest
reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part
of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served
their day expire, and new principles are born."85
Justice Cardozo was also conscious of the close intertwining between a judge's philosophy and the
judicial process, in his analysis of Roosevelt's statement on the philosophy of judges, the timeliness of
their philosophy, and the impact of the same on the decisions of the courts.86 It is due to the limits of
human nature, Justice Cardozo conceded, that the ideal of "eternal verities" is beyond the reach of a
judge; thus it is impossible to completely eliminate the "personal measure of the [judicial] interpreter."
Of such personal measures and the signs of the times he wrote: "My duty as judge may be to objectify in
law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and
philosophies of the men and women of my time. Hardly shall I do this well if my own sympathies and
beliefs and passionate devotions are with a time that is past."87
It is clear that Justice Cardozo did not expect a judge to cut himself completely off from the pressures,
forces, and beliefs of his society – far from it. "We may figure the task of the judge, if we please, as the
task of a translator, the reading of signs and symbols given from without,"88 he went on to say. Indeed,
the first lines of the paragraph quoted in Justice Brion's Concurring Opinion89 state: "I have no quarrel,
therefore, with the doctrine that judges ought to be in sympathy with the spirit of their times."90 Justice
Cardozo did not regard the influence of "the truth without us" on the shaping of individual beliefs as
harmful in and of itself, nor did he say that judges must be completely free of outside influences. He
spoke of the effect the thinking of the group could play in the thinking of the individual, and how these
factors and influences, as part of human nature, might play out in the judicial process, without
considering such effect as a problem. He wrote, following his quoting of James Harvey Robinson, that
"[t]he training of the judge, if coupled with what is styled the judicial temperament, will help in some
degree to emancipate him from the suggestive power of individual dislikes and prepossessions. It will
help to broaden the group to which his subconscious loyalties are due. Never will these loyalties be
utterly extinguished while human nature is what it is."91
Accepting fully the flaws inherent in human nature and the "eccentricities of judges," optimistic in the
belief that "because [the flaws] are not only there but visible, we have faith that they will be
corrected,"92 Justice Cardozo concluded with words on the temporal nature of the work of a judge:
"The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it
endures. What is erroneous is pretty sure to perish." It was in this sense – the building of new structures
upon good foundations, the rejection of errors as they are determined by the years – that Justice Cardozo
wrote the lines that constitute the second excerpt quoted in Justice Brion's Concurring Opinion.
Preceding Justice Cardozo's quoting of Henderson, he wrote: "Little by little the old doctrine is
undermined. Often the encroachments are so gradual that their significance is at first obscured. Finally
we discover that the contour of the landscape has been changed, that the old maps must be cast aside,
and the ground charted anew."93 It was change – in the spirit of the times, in the principles
underpinning the judicial process, in the personal and very human beliefs of individual judges – that
Justice Cardozo spoke of in this passage. It does not speak of damage wrought by societal influence, nor
of destructive or prejudicial effects due to shifts in public opinion and belief, but rather of how law
develops and changes. Indeed, Justice Cardozo ends on a note rich with hope in change:
Ever in the making, as law develops through the centuries, is this new faith which silently and steadily
effaces our mistakes and eccentricities. I sometimes think that we worry ourselves overmuch about the
enduring consequences of our errors. They may work a little confusion for a time. In the end, they will
be modified or corrected or their teachings ignored. The future takes care of such things. In the endless
process of testing and retesting, there is a constant rejection of the dross, and a constant retention of
whatever is pure and sound and fine.94
Truly, the role of the judge is to do his utmost to exercise his independence, even against overwhelming
pressure, to uphold the rule of law. But simply because the possibility exists that the judiciary may go
along with a public that is hungry for the truth does not mean we do not allow the truth to be found out.
As we can see from a reading of Justice Cardozo's lecture, we need not fear societal influences and
forces. The "truth without us" does not negate the validity of "the truth within."
Appropriateness of Establishing a "Truth" Commission
In his Concurring Opinion, Justice Brion raises the points that: (1) the term "truth commission" is
usually reserved for a body "investigating the human rights violations that attended past violence and
repression, and in some instances for a body working for reconciliation in society," and (2)
reconciliation is not present as one of the goals of the PTC95. These two points, according to the
Concurring Opinion, further distance the PTC from other truth commissions; the latter point in
particular thereby "remov[es] a justification for any massive information campaign aimed at healing
divisions that may exist in the nation."96
To arrive at this conclusion is to place unwarranted restrictions on the definitions and functions of
bodies bearing the name of "truth commission." While many truth commissions have indeed been
established in the wake of a violent conflict leading to a transition between two regimes, this does not
preclude that truth commissions in some countries may be used for circumstances that do not duplicate
the violence of the conflict or the character of the regime transition in other countries. The needs of
various countries differ and consequently determine a great deal of variation in the fundamental goals,
purposes, and characteristics of the bodies they establish, to deal with the abuses of previous
administrations.97 David Crocker puts forth the view that even nations other than new democracies may
see the need for ways to "reckon with past wrongs," and classifies these other nations into three broad
categories: (1) post-conflict societies aspiring to transition to democracy, but occupied with pressing
security issues; (2) authoritarian and conflict-ridden societies; (3) mature democracies that are reckoning
with abuses their own governments may have committed in the past.98 The Philippine context does not,
therefore, close off the avenue of a truth commission as a permissible means to address past abuses.
Likewise, a definition that expects reconciliation as a requisite goal for the PTC99 is an unduly narrow
definition.
Another argument raised in Justice Brion’s Concurring Opinion refers to the EO 1’s creation of the PTC
as a "shortcut to the emergence of truth"100 – one which should not be taken as it "bypass[es] processes
established by the Constitution and the laws." Because it deems "the international experiences that give
rise to the title Truth Commission" as not applying to the present Philippine situation and claims there is
no need for "quick transitional justice," the Concurring Opinion reasons that "there is no need to resort
to... institutions and mechanisms outside of those already in place."101 In other words, only the
Ombudsman and the judiciary have the rightful duopoly on truth-finding and truth-telling in graft and
corruption cases.
Yet the justifications for the use of truth commissions are not confined only to certain post-conflict
scenarios or the absence of functioning judicial systems. Even in some contexts where there is a judicial
system already in place, a truth commission may be used by the government as a redress
mechanism.102 There are numerous reasons prosecution and other means usually undertaken within the
judicial system may not be viable. There may be too many incidents to prosecute; due to the atmosphere
of secrecy in which abuses took place, evidence may be insufficient for a criminal conviction.103
Current political policies, as well as concerns about vengeance and the resulting societal tensions, may
also make prosecution difficult or impossible.104 The element of time may also be a significant
factor.105 In addition, some of the aims of truth commissions may be outside the purview of courts, as
in the case of giving an account of events that transpired: "A court is not supposed to give an account
about the circumstances of the historic, economic, and political reasons for a crime, nor about the
involvement of different groups in the society or political influence from the outside which may have
encouraged the perpetrators... Giving an account, providing explanations, and offering
recommendations for a better future are exactly the purposes of a truth commission."106 Means of
redress attempted within the confines of the judicial system may also not be viable precisely because of
elements influencing the system itself. Officials allied with the previous regime may also still retain
power, and through various means hinder proceedings undertaken within the judicial system.
This last point regarding situations wherein the former regime still possesses a certain degree of
influence over the system is especially salient in the light of state capture. According to the World Bank,
state capture may be treated as akin in essence to regulatory capture as it is used in economics literature:
state regulatory agencies are considered "captured" when they "regulate businesses in accordance with
the private interests of the regulated as opposed to the public interest for which they were established."
State capture, then, encompasses the state’s "capture" as evinced in the "formation of laws, rules, and
decrees by a wider range of state institutions, including the executive, ministries and state agencies,
legislature, and the judiciary."107 State capture alters the "rules of the game" in favor of those who have
captured the state. While state capture encompasses a variety of situations, its fundamental characteristic
is that it is channeled through illicit, informal, and non-transparent means of providing private gains to
public officials as incentives for these very officials to influence the formation of laws and prejudice the
rules to these captors’ narrow advantage.108 If public officials are perceived to have been captured, the
credibility of official processes – such as rendering decrees, forming laws, and shaping policies – will
suffer. It is not difficult to see how state capture may render traditional means such as prosecution
completely ineffective against those who may have captured the state.
To that end, S. Sandile Ngcobo writes:
...many transitional governments do not represent a complete break with the past. In some cases,
members of the police and security forces that were responsible for heinous acts under the old regime
remain in influential positions. Their numbers and their continued control of deadly weapons provide
them with the capability to undermine the peaceful transition. Their continued influence may threaten
the new democratic order, making prosecutions both undesirable and impractical. Given these realities,
the emerging democracy may be compelled to look for alternative approaches. At this point, a truth
commission may become an attractive option.109 (Emphasis supplied.)
It is true that in the Philippine context we may not be speaking of a past regime’s continuing control of
guns and armed men; but power, in any form, is power. In any event, the appropriateness of naming the
PTC as a "truth commission" is not a legal argument for its invalidation, as Justice Brion himself
conceded.
Unlawful Discrimination is not an Argument of the Powerful; the Phenomenon of State Capture
Unlawful discrimination, as shown in American cases on equal protection claims in criminal
investigation and prosecution, is not inherently an argument of the powerful, but that of the traditionally
oppressed. This is because the politically powerful, as in the past administration, still contain all the
advantages that such past formal political power begot. It is the height of incongruity that an
administration that held power for nine years, successfully evaded all congressional investigations, and
effectively invoked all legal defenses from investigation for all those nine years will be extended the
same immunity that the former presidential office gave it. The Philippines will be the laughing stock of
the world, incapable of correcting any error, unable to erase the perception by many that it is a country
where the law only serves the ends of the powerful.

If evidence will later turn out, congruent to the theory of some quarters as intimated by the Solicitor
General during the oral arguments, that the reason that former President Arroyo and her closest relatives
and officials have not been prosecuted by the present Ombudsman is because the Ombudsman is not
independent but is acting out of loyalty for her appointment to the position, then such evidence
reinforces the immoral political lesson that the misuse of the law and the power of appointment can be
purposively committed to create a strong shield of immunity from accountability. With or without such
evidence, however, and especially because the belief in the non-independence of the Ombudsman is
openly expressed by people, the only way for this Court to not abet such a plan if such a plan indeed
existed on the part of Arroyo administration, is to allow the people to exact accountability upon those
from whom accountability is due. It must let the President fulfill his promise to the people, and if the
President believes that the best way for him is to start from fact-finding into the past administration,
then he must be allowed to do so without unconstitutional judicial restraint.
The "Least Dangerous" Branch
The majority took pains to reiterate the honorable role of the Court in exercising the constitutional and
awesome power of judicial review, amidst the recent string of rebukes against the initiatives of the
legislature and elected executives – democratically elected representatives of the people.
In the seminal book "The Least Dangerous Branch: The Supreme Court at the Bar of Politics,"
Alexander M. Bickel expounded on the "counter-majoritarian difficulty"110 of judicial review exercised
by an unelected court to declare null and void an act of the legislature or an elected executive in this
wise:
The root difficulty is that judicial review is a counter-majoritarian force in our system. x x x when the
Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts
the will of representatives of the actual people of the here and now; it exercises control, not in behalf of
the prevailing majority, but against it. That, without mystic overtones, is what actually happens. It is an
altogether different kettle of fish, and it is the reason the charge can be made that judicial review is
undemocratic.111
Bickel’s "counter-majoritarian difficulty" is met by the argument that the Court’s duty is to uphold the
Constitution, that in determining the "boundaries of the great departments of government" is not to
assert superiority over them but merely to assert its solemn and sacred obligation to determine
conflicting claims of authority under the Constitution.112
If the Court is to avoid illegitimacy in its actions as suggested by Professor Bickel, then it must ensure
that its discharge of the duty to prevent abuse of the President’s executive power does not translate to
striking down as invalid even a legitimate exercise thereof, especially when the exercise is in keeping
with the will of the people.113 Invalidating the PTC is an unconstitutional denial of the legitimate
exercise of executive power and a stinging reproach against the people’s sovereign right. Sadly, there is
a wide fissure between the public’s hunger for governance justice through the successful delivery by
President Aquino of his promise to get behind the stories on corruption of the former administration,
and the Court’s confirmation of an alleged violation of former President Arroyo’s equal protection right.
To emphasize, it is not even former President Arroyo who is officially raising this matter before the
Court.
Rather than exercise judicial restraint, the majority has pushed the boundaries of judicial activism
bordering on what former Chief Justice Puno once described as an imperial judiciary:
"[T]he Court should strive to work out a constitutional equilibrium where each branch of government
cannot dominate each other, an equilibrium where each branch in the exercise of its distinct power
should be left alone yet bereft of a license to abuse. It is our hands that will cobble the components of
this delicate constitutional equilibrium. In the discharge of this duty, Justice Frankfurter requires judges
to exhibit that ‘rare disinterestedness of mind and purpose, a freedom from intellectual and social
parochialism.’ The call for that quality of "rare disinterestedness" should counsel us to resist the
temptation of unduly inflating judicial power and deflating the executive and legislative powers. The
1987 Constitution expanded the parameters of judicial power, but that by no means is a justification for
the errant thought that the Constitution created an imperial judiciary. An imperial judiciary composed of
the unelected, whose sole constituency is the blindfolded lady without the right to vote, is counter-
majoritarian, hence, inherently inimical to the central ideal of democracy. We cannot pretend to be an
imperial judiciary for in a government whose cornerstone rests on the doctrine of separation of powers,
we cannot be the repository of all remedies."114 (Emphasis supplied)
When forgotten, history does have a tendency to repeat itself.115 Unless an official and comprehensive 9 Id. at 3.
narrative of findings of fact on large-scale corruption that reportedly occurred during the previous
administration is made public, the country may find the same alleged patterns of corruption repeating 10 5 U.S. 137 (1803).
themselves. Worse, public officials subject of the investigation – and who may actually be guilty – with
continued possession or access to power may spin these events and cause a revision of our history to 11 Decision at p. 3.
make those allegations of wrongdoing appear nothing more than unsubstantiated rumors whispered in
secret and perpetuated by bitter opponents. The PTC is a step towards national healing over a sordid 12 Decision at p. 24.
past. The Court must allow the nation to move forward and the people’s faith in a just and accountable
government to be restored. 13 The majority Decision clarifies that investigation of deceased presidents, cases which have already
prescribed and simultaneous investigations of previous administration are not expected of the PTC.
MARIA LOURDES P. A. SERENO (Decision at p. 37)
Associate Justice
14 Decision at p. 37.

Footnotes 15 Decision at p. 43.

1 Decision, at p. 43. 16 Id. at pp. 37-38.

2 This is discussed in the part of this Opinion on "The Majority Decision’s Turn-Around." 17 I submit that the majority Decision must have intended to refer to all officials of past presidents, and
not only to the Presidents themselves.
3 Decision at p. 3.
18 Unless the Court is impliedly saying that the reported crimes that are the earliest in point of time are
4 Id. the ones that must be prioritized, i.e., reported crimes committed during the administrations of
Presidents Corazon Aquino and Fidel Ramos. But to impose this standard is the height of legal
5 Id. at p. 24. unreasonableness and the worst form of judicial overreach.

6 Id. at p. 23. 19 G.R. No. L-63915, 29 December 1986, 146 SCRA 446.

7 Id. at p. 25. 20 Decision at p. 36.

8 Decision at p. 35.
21 SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
22 G.R. No. 189698, 22 February 2010.
23 Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16(b), p. 371;
Hunter v. Flowers, 43 So. 2d 435 cited in Am. Jur. 2d, Vol. 16(b), p. 370; Clements v. Fashing, 457
U.S. 957.
24 Decision at p. 36.
25 Despite the attempt of the majority Decision to make it appear that it is not unreasonable in requiring
an all-comprehensive coverage when it says that it does not require the impossible, the fact that it keeps
on insisting that all past administrations must be included in the coverage of EO 1 give basis for the
opinion that the Decision indeed requires coverage spanning at least 6 decades, and even perhaps, a
century. See Dissent of J. Carpio.
26 Decision, at pp. 29-40.
27 Decision at p. 39, citing McDonald v. Board of Election Com’rs of Chicago, 394 US 802 cited in
AM. Jur 2d, note 9.
28 G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
29 G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
30 G.R. No. 163583, 20 August 2008, 562 SCRA 511.
31 "All in all, the classification freeze provision addressed Congress’s administrative concerns in the
simplification of tax administration of sin products, elimination of potential areas for abuse and
corruption in tax collection, buoyant and stable revenue generation, and ease of projection of revenues.
Consequently, there can be no denial of the equal protection of the laws since the rational-basis test is
amply satisfied." (British American Tobacco v. Camacho, id.)
32 Matiangai Sirleaf, Regional Approach to Transitional Justice? Examining the Special Court for
Sierra Leone and the Truth & Reconciliation Commission for Liberia, 21 Fla. J. Int’l L. 209, 213
(2009), citing E. Gyimah-Boadi, Executive Director, CDD-Ghana, Paper Presentation at the British Hall
Council: Reconciliation: Comparative Perspectives, 7 (June 13, 2005).
33 Kristin Bohl, Breaking the Rules of Transitional Justice, 24 Wis. Int’l L. J. 557, 473 (2006).
34 G.R. L-25246, 12 September 1974, 59 SCRA 54.
35 G.R. L-25246, 12 September 1974, 59 SCRA 54.
36 G.R. L-25246, 12 September 1974, 59 SCRA 54.
37 United States v. Haggerty, 528 F.Supp. 1268, 1291 (D.Colo.1981).
38 United States v. Armstrong, 517 US 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).
39 United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982).
40 McLaughlin v. State of Fla., 85 S.Ct. 283 (1964).
41 Application of Finn, 356 P.2D 685 (1960).
42 United States v. Wayte, 470 US 598, 608 (1995).
43 Bell v. State, 369 So.2d 932 (1979).
44 United States v. Armstrong, supra, 517 U.S. 456, 465 (1996).
 59 "The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not,
45 United States v. Furman, 31 F.33 1034, 1038 (10th Cir. 1994), quoting United States v. Salazar, 720 by itself, a denial of the equal protection of the laws." (People v. Dumlao, G.R. No. 168918, 02 March
F.2d 1482, 1487 (10th Cir. 1983). 2009, 580 SCRA 409).

46 United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983). 60 G.R. No. 142030, 21 April 2005, 456 SCRA 494.

47 United States v. Hunter, 13 F.Supp.2D 586, 10 June 1998. 61 G.R. Nos. 148213-17, 13 March 2009, 581 SCRA 42.

48 G.R. No. 121777, 24 January 2001, 350 SCRA 163. 62 Rose Weston, Facing the Past, Facing the Future: Applying the Truth Commission Model to the
Historic Treatment of Native Americans in the United States, 18 Ariz. J. Int’l & Comp. L. 1017, 1018-
49 Constitution, Article II, Section 27. 1019 (2001).

50 Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, 08 April 2010.
51 Ariel Meyerstein, Transitional Justice and Post Conflict Israel/Palestine: Assessing the Applicability
of the Truth Commission Paradigm, 38 Case W. Res. J. Int’l. L. 281, 330 (2006-2007).
52 Agrava Commission, Presidential Decree No. 1886 (14 October 1983).
53 Davide Commission, Administrative Order No. 146 (06 December 1989) and Republic Act No. 6832
(05 January 1990).
63 Jocelyn E. Getgen, Untold Truths: The Exclusion of Enforced Sterilizations From the Peruvian Truth
Commission’s Final Report, 29 B.C. Third World L.J. 1, 34 (2009).
64 James Thuo Gathii, Defining The Relationship of Human Rights to Corruption, 31 U. Pa. J. Int'l L.
125, 170 (2009).
65 Concurring Opinion of Justice Brion, p. 16
66 Id.

54 Feliciano Commission, Administrative Order No. 78 (30 July 2003). 67 Id. at p. 22

55 Melo Commission, Administrative Order No. 173 (23 March 2007). 68 Keith Aoki, The Scholarship of Reconstruction and the Politics of Backlash, 81 Iowa L. Rev p. 1468,
July 1996.
56 Zeñarosa Commission, Administrative Order No. 275 (09 December 2009).
69 Id.
57 Reyes v. Pearlbank Security, Inc., G.R. No. 171435, 30 July 2008, 560 SCRA 518.
70 Justice Brion’s Concurring Opinion, pp. 13, 17-18
58 Executive Order No. 1, Section 2 (b).
71 Id. at p. 15
 (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752,
72 Id. at p. 27 183893, 183951 & 183962, 14 October 2008, 568 SCRA 402; emphasis supplied)

73 Brion, supra at p. 27.
74 Stephen Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution and
Truth Commissions, Law & Contemp. Probs ., Vol. 59, No. 4, p. 88 (1997).
75 Sharon K. Hom and Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA
Law Review 1747 (2000), p. 1764.
81 In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law
unswayed by partisan interests, public opinion or fear of criticism. (Barillo v. Lantion, G.R. No. 159117
& A.M. No. MTJ-10-1752, 10 March 2010).
82 People v. Sebreño, G.R. No. 121764, 09 September 1999, 314 SCRA 87.
83 Justice Brion’s Concurring Opinion, at pp. 18-19.

76 Hom and Yamamoto, supra at p. 1759. 84 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 150
(1921).
77 G.R. No. 182498, 03 December 2009, 606 SCRA 598.
85 Cardozo, supra at pp. 166-167.
78 The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, as 86 Roosevelt as cited in Cardozo, id., at p. 171.
well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law. (Constitution, Article III, Section 7) 87 Id., at pp. 172-173.

79 Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full 88 Cardozo, supra at p. 174
public disclosure of all its transactions involving public interest. (Constitution, Article II, Section 28)
89 Concurring Opinion of Justice Brion, p. 18.
80 "The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information 90 Cardozo, supra at p. 174.
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. 91 Id. at p. 176.

"The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs 92 Id. at p. 177.
in a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy. These provisions are vital to the exercise of the 93 Cardozo, supra at p. 178.
freedom of expression and essential to hold public officials at all times accountable to the people."
94 Id. at p. 179. 107 World Bank, Anticorruption in Transition: A Contribution to the Policy Debate (2000)
<http://info.worldbank.org/etools/docs/library/17506/contribution.pdf> (accessed on 7 November 2010).
95 Justice Brion’s Concurring Opinion, pp. 5-6.
108 World Bank, supra at pp. 1-2.
96 Id. at p. 6.
109 Ngcobo, supra note 103 at p. 7.
97 Juan E. Mendéz, Accountability for Past Abuses, 19 Hum. Rts. Q2, 255-282 (1997); Charles O.
Lerche III, Truth Commissions and National Reconciliation: Some Reflections on Theory and Practice 110 "The question at the heart of the anomaly is why a democracy – a political system based on
<http://www.gmu.edu/academic/pcs/LERCHE71PCS.html> (accessed 7 November 2010). representation and accountability – should entrust the final, or near final, making of such highly
significant decisions to judges – unelected, independent and insulated from the direct impact of public
98 David Crocker, Reckoning with Past Wrongs: A Normative Framework, 13 Ethics & International opinion." (Stephen G. Breyer, Judicial Review: A Practising Judge’s Perspective, 19 Oxford Journal of
Affairs, 43-64 (1999). Legal Studies 153 [1999], cited in Vicente V. Mendoza, Judicial Review of Constitutional Questions,
261 [2004]
99 Brion, supra at p. 6.
111 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 16-
100 Id. at p. 20 17 (1962).

101 Id. at p. 33 112 Decision, at p. 42.

102 Angelika Schlunck, Truth and Reconciliation Commissions, 4 ILSA J. Int’l & Comp. L, 415, 2. 113 Akbayan Citizens Action Party (AKBAYAN) v. Aquino, G.R. No. 170516, 16 July 2008, 558
SCRA 468.
103 S. Sandile Ngcobo, Truth, Justice, and Amnesty in South Africa: Sins from the Past and Lessons for
the Future, 8 IUS Gentium, 6-7. 114 Puno, Concurring and Dissenting Opinion in Francisco v. House of Representatives, G.R. No.
160261, 10 November 2003, 415 SCRA 44, 211.
104 Landsman, supra note 72.
115 Getgen, supra note 63, at p. 33.
105 Neil J. Kritz, Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass
Violations of Human Rights, 59 Law & Contemp. Probs. 4, 127-152.
The Lawphil Project - Arellano Law Foundation
106 Schlunck, supra at pp. 419-420.
CONCURRING AND DISSENTING OPINION
NACHURA, J.:
Before us are two (2) consolidated petitions:
1. G.R. No. 192935 is a petition for prohibition filed by petitioner Louis Biraogo (Biraogo), in his
capacity as a citizen and taxpayer, assailing Executive Order (E.O.) No. 1, entitled "Creating the
Philippine Truth Commission of 2010" for violating Section 1, Article VI of the 1987 Constitution; and
2. G.R. No. 193036 is a petition for certiorari and prohibition filed by petitioners Edcel C. Lagman,
Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr., in their capacity as members
of the House of Representatives, similarly bewailing the unconstitutionality of E.O. No. 1.
First, the all too familiar facts leading to this cause celebre.
On May 10, 2010, Benigno Simeon C. Aquino III was elected President of the Philippines. Oft repeated
during his campaign for the presidency was the uncompromising slogan, "Kung walang corrupt, walang
mahirap."
Barely a month after his assumption to office, and intended as fulfillment of his campaign promise,
President Aquino, on July 30, 2010, issued Executive Order No. 1, to wit:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the
people’s trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections "kung
walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and
which will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by the public officers
and employees, their co-principals, accomplices and accessories from the private sector, if any, during
the previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendation to the President, Congress and the Ombudsman. In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporation, to produce documents,
books, records and other papers;
c) Upon proper request and representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules
of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals, accomplices or accessories, if any, when
in the course of its investigation the Commission finds that there is reasonable ground to believe that
they are liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource person, professional and other personnel determined by it
as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
and purposes of this Order.
SECTION 3. Staffing Requirements. – The Commission shall be assisted by such assistants and
personnel as may be necessary to enable it to perform its functions, and shall formulate and establish its
organization structure and staffing pattern composed of such administrative and technical personnel as it
may deem necessary to efficiently and effectively carry out its functions and duties prescribed herein,
subject to the approval of the Department of Budget and Management. The officials of the Commission
shall in particular include, but not limited to, the following:
a. General Counsel

b. Deputy General Counsel
c. Special Counsel
d. Clerk of the Commission
SECTION 4. Detail of Employees. – The President, upon recommendation of the Commission, shall
detail such public officers or personnel from other department or agencies which may be required by the
Commission. The detailed officers and personnel may be paid honoraria and/or allowances as may be
authorized by law, subject to pertinent accounting and auditing rules and procedures.
SECTION 5. Engagement of Experts. – The Truth Commission shall have the power to engage the
services of experts as consultants or advisers as it may deem necessary to accomplish its mission.
SECTION 6. Conduct of Proceedings. – The proceedings of the Commission shall be in accordance
with the rules promulgated by the Commission. Hearings or proceedings of the Commission shall be
open to the public. However, the Commission, motu propio, or upon the request of the person testifying,
hold an executive or closed-door hearing where matters of national security or public safety are
involved or when the personal safety of the witness warrants the holding of such executive or closed-
door hearing. The Commission shall provide the rules for such hearing.
SECTION 7. Right to Counsel of Witnesses/Resources Persons. – Any person called to testify before
the Commission shall have the right to counsel at any stage of the proceedings.
SECTION 8. Protection of Witnesses/Resource Persons. – The Commission shall always seek to assure
the safety of the persons called to testify and, if necessary make arrangements to secure the assistance
and cooperation of the Philippine National Police and other appropriate government agencies.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce
documents for inspection, when required, shall be subject to administrative disciplinary action. Any
private person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – The departments, bureaus, offices,
agencies or instrumentalities of the Government, including government-owned and controlled
corporations, are hereby directed to extend such assistance and cooperation as the Commission may
need in the exercise of its powers, execution of its functions and discharge of its duties and
responsibilities with the end in vies of accomplishing its mandate. Refusal to extend such assistance or
cooperation for no valid or justifiable reason or adequate cause shall constitute a ground for disciplinary
action against the refusing official or personnel.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary
funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – The Commission may avail itself of such office space which may be available
in government buildings accessible to the public space after coordination with the department or
agencies in control of said building or, if not available, lease such space as it may require from private
owners.
SECTION 13. Furniture/Equipment. – The Commission shall also be entitled to use such equipment or
furniture from the Office of the President which are available. In the absence thereof, it may request for
the purchase of such furniture or equipment by the Office of the President.
SECTION. 14. Term of the Commission. – The Commission shall accomplish its mission on or before
December 31, 2012.
SECTION 15. Publication of Final Report. – On or before December 31, 2012, the Commission shall
render a comprehensive final report which shall be published upon the directive of the president. Prior
thereto, also upon directive of the President, the Commission may publish such special interim reports it
may issue from time to time.
SECTION 16. Transfer of Records and Facilities of the Commission. – Upon the completion of its
work, the records of the Commission as well as its equipment, furniture and other properties it may have
acquired shall be returned to the Office of the President.
SECTION 17. Special Provision Concerning Mandate. – If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. – If any provision of this Order is declared unconstitutional, the
same shall not affect the validity and effectivity of the other provisions hereof.
Section 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Without delay, petitioners Biraogo and Congressmen Lagman, Albano, Datumanong, and Fua filed their
respective petitions decrying the constitutionality of the Truth Commission, primarily, for being a
usurpation by the President of the legislative power to create a public office.
In compliance with our Resolution, the Office of the Solicitor General (OSG) filed its Consolidated
Comment to the petitions. Motu proprio, the Court heard oral arguments on September 7 and 28, 2010,
where we required the parties, thereafter, to file their respective memoranda.
In his Memorandum, petitioner Biraogo, in the main, contends that E.O. No. 1 violates Section 1,
Article VI of the 1987 Constitution because it creates a public office which only Congress is empowered
to do. Additionally, "considering certain admissions made by the OSG during the oral arguments," the
petitioner questions the alleged intrusion of E.O. No. 1 into the independence of the Office of the
Ombudsman mandated in, and protected under, Section 5, Article XI of the 1987 Constitution.
Holding parallel views on the invalidity of the E.O., petitioner Members of the House of
Representatives raise the following issues:
I.
EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
VIOLATES THE PRINCIPLE OF SEPARATION OF POWERS BY USURPING THE POWERS OF
THE CONGRESS (1) TO CREATE PUBLIC OFFICES, AGENCIES AND COMMISSIONS; AND (2)
TO APPROPRIATE PUBLIC FUNDS.
II.
EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 1987
CONSTITUTION BECAUSE IT LIMITS THE JURISDICTION OF THE PHILIPPINE TRUTH
COMMISSION TO OFFICIALS AND EMPLOYEES OF THE "PREVIOUS ADMINISTRATION"
(THE ADMINISTRATION OF OFRMER PRESIDENT GLORIA MACAPAGAL-ARROYO).
III.
EXECUTIVE ORDER NO. 1 SUPPLANTS THE CONSTITUTIONALLY MANDATED POWERS
OF THE OFFICE OF THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION AND
SUPPLEMENTED BY REPUBLIC ACT NO. 6770 OR THE "OMBUDSMAN ACT OF 1989."
Expectedly, in its Memorandum, the OSG traverses the contention of petitioners and upholds the
constitutionality of E.O. No. 1 on the strength of the following arguments:
I.
PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT PERSONAL INJURY WITH THE
ISSUANCE OF EXECUTIVE ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL STANDING
TO ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 1.
II.
EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID. EXECUTIVE ORDER NO. 1
DOES NOT ARROGATE THE POWERS OF CONGRESS TO CREATE A PUBLIC OFFICE AND
TO APPROPRIATE FUNDS FOR ITS OPERATIONS.
III.
THE EXECUTIVE CREATED THE TRUTH COMMISSION PRIMARILY AS A TOOL FOR
NATION-BUILDING TO INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND
CONSEQUENCES OF CORRUPTION AND TO MAKE POLICY RECOMMENDATIONS FOR
THEIR REDRESS AND FUTURE PREVENTION. ALTHOUGH ITS INVESTIGATION MAY
CONTRIBUTE TO SUBSEQUENT PROSECUTORIAL EFFORTS, THE COMMISSION WILL NOT
ENCROACH BUT COMPLEMENT THE POWERS OF THE OMBUDSMAN AND THE DOJ IN
INVESTIGATING CORRUPTION.
IV.
EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT DOES NOT VIOLATE THE
EQUAL PROTECTION CLAUSE. THE TRUTH COMMISSION HAS LEGITIMATE AND
LAUDABLE PURPOSES.
In resolving these issues, the ponencia, penned by the learned Justice Jose Catral Mendoza, concludes
that:
1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because of the
transcendental importance of the issues involved, while petitioner Members of the House of
Representatives have standing to question the validity of any official action which allegedly infringes on
their prerogatives as legislators;
2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the President’s power
to reorganize under the Administrative Code of 1987;
3. However, the President’s power to create the herein assailed Truth Commission is justified under
Section 17,1 Article VII of the Constitution, albeit what may be created is merely an ad hoc
Commission;
4. The Truth Commission does not supplant the Ombudsman or the Department of Justice (DOJ) nor
erode their respective powers; and
5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection clause
enshrined in Section 1, Article III of the Constitution.
I agree with the ponencia that, given our liberal approach in David v. Arroyo2 and subsequent cases,
petitioners have locus standi to raise the question of constitutionality of the Truth Commission’s
creation. I also concur with Justice Mendoza’s conclusion that the Truth Commission will not supplant
the Office of the Ombudsman or the DOJ, nor impermissibly encroach upon the latter’s exercise of
constitutional and statutory powers.
I agree with the ponencia that the President of the Philippines can create an ad hoc investigative body.
But more than that, I believe that, necessarily implied from his power of control over all executive
departments and his constitutional duty to faithfully execute the laws, as well as his statutory authority
under the Administrative Code of 1987, the President may create a public office.
However, I find myself unable to concur with Justice Mendoza’s considered opinion that E.O. No. 1
breaches the constitutional guarantee of equal protection of the laws.
Let me elucidate.
The Truth Commission is a Public Office
The first of two core questions that confront the Court in this controversy is whether the President of the
Philippines can create a public office. A corollary, as a consequence of statements made by the Solicitor
General during the oral argument, is whether the Truth Commission is a public office.
A public office is defined as the right, authority, or duty, created and conferred by law, by which for a
given period, either fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some sovereign power of government to be exercised by him for the benefit of the
public.3 Public offices are created either by the Constitution, by valid statutory enactments, or by
authority of law. A person who holds a public office is a public officer.
Given the powers conferred upon it, as spelled out in E.O. No. 1, there can be no doubt that the Truth
Commission is a public office, and the Chairman and the Commissioners appointed thereto, public
officers.
As will be discussed hereunder, it is my respectful submission that the President of the Philippines has
ample legal authority to create a public office, in this case, the Truth Commission. This authority flows
from the President’s constitutional power of control in conjunction with his constitutional duty to ensure
that laws be faithfully executed, coupled with provisions of a valid statutory enactment, E.O. No. 292,
otherwise known as the Administrative Code of 1987.
E. O. No. 1 and the Executive Power
Central to the resolution of these consolidated petitions is an understanding of the "lines of
demarcation" of the powers of government, i.e., the doctrine of separation of powers. The landmark case
of Government of the Philippine Islands v. Springer4 has mapped out this legal doctrine:
The Government of the Philippines Islands is an agency of the Congress of the United States. The
powers which the Congress, the principal, has seen fit to entrust to the Philippine Government, the
agent, are distributed among three coordinate departments, the executive, the legislative, and the
judicial. It is true that the Organic Act contains no general distributing clause. But the principle is
clearly deducible from the grant of powers. It is expressly incorporated in our Administrative Code. It
has time and again been approvingly enforced by this court.
No department of the government of the Philippine Islands may legally exercise any of the powers
conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no
such explicit prohibitions. But it is fairly implied by the division of the government into three
departments. The effect is the same whether the prohibition is expressed or not. It has repeatedly been
announced by this court that each of the branches of the Government is in the main independent of the
others. The doctrine is too firmly imbedded in Philippine institutions to be debatable.
It is beyond the power of any branch of the Government of the Philippine islands to exercise its
functions in any other way than that prescribed by the Organic Law or by local laws which conform to
the Organic Law. The Governor-General must find his powers and duties in the fundamental law. An
Act of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this
court and other courts is derived from the constitutional provisions.
xxx
The Organic Act vests "the supreme executive power" in the Governor-General of the Philippine
Islands. In addition to specified functions, he is given "general supervisions and control of all the
departments and bureaus of the government of the Philippine Islands as far is not inconsistent with the
provisions of this Act." He is also made "responsible for the faithful execution of the laws of the
Philippine islands and of the United States operative within the Philippine Islands." The authority of the
Governor-General is made secure by the important proviso "that all executive functions of Government
must be directly under the governor-General or within one of the executive departments under the
supervision and control of the governor-general." By the Administrative Code, "the governor-general, as
Chief executive of the islands, is charged with the executive control of the Philippine Government, to be
exercised in person or through the Secretaries of Departments, or other proper agency, according to
law."
These "lines of demarcation" have been consistently recognized and upheld in all subsequent Organic
Acts applied to the Philippines, including the present fundamental law, the 1987 Constitution.
Section 1, Article VII of the 1987 Constitution5 vests executive power in the President of the
Philippines. On the nature of the executive power, Justice Isagani A. Cruz writes:
Executive power is briefly described as the power to enforce and administer the laws, but it is actually
more than this. In the exercise of this power, the President of the Philippines assumes a plenitude of
authority, and the corresponding awesome responsibility, that makes him, indeed, the most influential
person in the land.6
In National Electrification Administration v. Court of Appeals,7 this Court said that, as the
administrative head of the government, the President is vested with the power to execute, administer and
carry out laws into practical operation. Impressed upon us, then, is the fact that executive power is the
power of carrying out the laws into practical operation and enforcing their due observance.
Relevant to this disquisition are two specific powers that flow from this "plenitude of authority." Both
are found in Section 17, Article VII of the Constitution.8 They are commonly referred to as the power of
control and the take care clause.
Section 17 is a self-executing provision. The President’s power of control is derived directly from the
Constitution and not from any implementing legislation.9 On the other hand, the power to take care that
the laws be faithfully executed makes the President a dominant figure in the administration of the
government. The law he is supposed to enforce includes the Constitution itself, statutes, judicial
decisions, administrative rules and regulations and municipal ordinances, as well as the treaties entered
into by our government.10 At almost every cusp of executive power is the President’s power of control
and his constitutional obligation to ensure the faithful execution of the laws.
Demonstrating the mirabile dictu of presidential power and obligation, we declared in Ople v. Torres:11
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of control, the President also has the
duty of supervising the enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively.
Mondano v. Silvosa,12 defines the power of control as "the power of an officer to alter, modify, or set
aside what a subordinate officer had done in the performance of his duties, and to substitute the
judgment of the former for that of the latter." It includes the authority to order the doing of an act by a
subordinate, or to undo such act or to assume a power directly vested in him by law.13
In this regard, Araneta v. Gatmaitan14 is instructive:
If under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban
fishing by trawl, then the President of the Philippines may exercise the same power and authority
because of the following: (a) The President shall have control of all the executive departments, bureaus
or offices pursuant to Section 10(1), Article VII, of the Constitution; (b) Executive Orders may be
issued by the President under Section 63 of the Revised Administrative Code :governing the general
performance of duties by public employees or disposing of issues of general concern;" and (c) Under
Section 74 of the Revised Administrative Code, "All executive functions of the Government of the
Republic of the Philippines shall be directly under the Executive Department, subject to the supervision
and control of the President of the Philippines in matters of general policy."
Our ruling in City of Iligan v. Director of Lands15 echoes the same principle in this wise:
Since it is the Director of Lands who has direct executive control among others in the lease, sale or any
form of concession or disposition of the land of the public domain subject to the immediate control of
the Secretary of Agriculture and Natural Resources, and considering that under the Constitution the
President of the Philippines has control over all executive departments, bureaus and offices, etc., the
President of the Philippines has therefore the same authority to dispose of the portions of the public
domain as his subordinates, the Director of Lands, and his alter-ego the Secretary of Agriculture and
Natural Resources.
From these cited decisions, it is abundantly clear that the overarching framework in the President’s
power of control enables him to assume directly the powers of any executive department, bureau or
office. Otherwise stated, whatever powers conferred by law upon subordinate officials within his control
are powers also vested in the President of the Philippines. In contemplation of law, he may directly
exercise the powers of the Secretary of Foreign Affairs, the Secretary of National Defense, the
Commissioner of Customs, or of any subordinate official in the executive department. Thus, he could,
for example, take upon himself the investigatory functions of the Department of Justice, and personally
conduct an investigation. If he decides to do so, he would be at liberty to delegate a portion of this
investigatory function to a public officer, or a panel of public officers, within his Office and under his
control. There is no principle of law that proscribes his doing so. In this context, the President may,
therefore, create an agency within his Office to exercise the functions, or part of the functions, that he
has assumed for himself. Even the ponencia admits that this can be done.
When this power of control is juxtaposed with the constitutional duty to ensure that laws be faithfully
executed, it is obvious that, for the effective exercise of the take care clause, it may become necessary
for the President to create an office, agency or commission, and charge it with the authority and the
power that he has chosen to assume for himself. It will not simply be an exercise of the power of
control, but also a measure intended to ensure that laws are faithfully executed.
To reiterate, the take care clause is the constitutional mandate for the President to ensure that laws be
faithfully executed. Dean Vicente G. Sinco observed that the President’s constitutional obligation of
ensuring the faithful execution of the laws "is a fundamental function of the executive head [involving]
a two-fold task, [i.e.,] the enforcement of laws by him and the enforcement of laws by other officers
under his direction." 16
As adverted to above, the laws that the President is mandated to execute include the Constitution,
statutes, judicial decisions, administrative rules and regulations and municipal ordinances. Among the
constitutional provisions that the President is obliged to enforce are the following General Principles
and State Policies of the 1987 Philippine Constitution:
Section 4, Article II: The prime duty of government is to serve and protect the people x x x
Section 5, Article II: The maintenance of peace and order, the protection of life, liberty and property,
and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.
Section 9, Article II: The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising standard of living, and an improved
quality of life for all.
Section 13, Article II: The State values the dignity of every human person and guarantees full respect
for human rights.
Section 27, Article II: The State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption.
Section 28, Article II: Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.
Closer to home, as head of the biggest bureaucracy in the country, the President must also see to the
faithful execution of Section 1, Article XI of the Constitution, which reads: "Public office is a public
trust. Public officers and employees must at all times be accountable to the people; serve them with
utmost responsibility, integrity, loyalty and efficiency; act with patriotism and justice; and lead modest
lives."
These are constitutional provisions the enforcement of which is inextricably linked to the spirit and
objective of E.O. No. 1.
Although only Section 1, Article XI, is cited in the Whereas clauses of E. O. No. 1, the President is
obliged to execute the other constitutional principles as well. Absent any law that provides a specific
manner in which these constitutional provisions are to be enforced, or prohibits any particular mode of
enforcement, the President could invoke the doctrine of necessary implication, i.e., that the express
grant of the power in Section 17, Article VII, for the President to faithfully execute the laws, carries
with it the grant of all other powers necessary, proper, or incidental to the effective and efficient
exercise of the expressly granted power.17 Thus, if a Truth Commission is deemed the necessary
vehicle for the faithful execution of the constitutional mandate on public accountability, then the power
to create the same would necessarily be implied, and reasonably derived, from the basic power granted
in the Constitution. Accordingly, the take care clause, in harmony with the President’s power of control,
along with the pertinent provisions of the Administrative Code of 1987, would justify the issuance of E.
O. No. 1 and the creation of the Truth Commission.
Further to this discussion, it is cogent to examine the administrative framework of Executive Power, as
outlined in the Administrative Code.
Quite logically, the power of control and the take care clause precede all others in the enumeration of
the Powers of the President. Section 1, Book III, Title I simply restates the constitutional provision, to
wit:
SECTION 1. Power of Control.—The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
Next in the enumeration is the ordinance power of the President which defines executive orders, thus:
SEC. 2. Executive Orders. - Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated in
executive orders.
At the bottom of the list are the other powers (Chapter 7, Book III of the Code) of the President, which
include the residual power, viz:
SEC. 19. Powers Under the Constitution.—The President shall exercise such other powers as are
provided for in the Constitution.
SEC. 20. Residual Powers.—Unless Congress provides otherwise, the president shall exercise such
other powers and functions vested in the President which are provided for under the laws and which are
not specifically enumerated above, or which are not delegated by the President in accordance with law.
In addition, pursuant to the organizational structure of the Executive Department,18 one of the powers
granted to the President is his continuing authority to reorganize his Office:19
SEC. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.
Consistent therewith, the Administrative Code provides in Section 1, Chapter 1, Book IV (The
Executive Branch) that "[t]he Executive Branch shall have such Departments as are necessary for the
functional distribution of the work of the President and for the performance of their functions." Hence,
the primary articulated policy in the Executive Branch is the organization and maintenance of the
Departments to insure their capacity to plan and implement programs in accordance with established
national policies.20
With these Administrative Code provisions in mind, we note the triptych function of the Truth
Commission, namely: (1) gather facts; (2) investigate; and (3) recommend, as set forth in Section 1 of
E.O. No. 1:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall [1] primarily seek and find
the truth on, and toward this end, [2] investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people, committed by the
public officers and employees, their co-principals, accomplices and accessories from the private sector,
if any, during the previous administration; and thereafter [3] recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall be served without fear or
favor. (emphasis and numbering supplied)
It is plain to see that the Truth Commission’s fact-finding and investigation into "reports of large scale
corruption by the previous administration" involve policy-making on issues of fundamental concern to
the President, primarily, corruption and its linkage to the country’s social and economic development.
On this point, I differ from the ponencia, as it reads the President’s power to reorganize in a different
light, viz:
The question, therefore, before the Court is this: Does the creation of the Truth Commission fall within
the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code?
Section 31 contemplates "reorganization" as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the President Proper by abolishing, consolidating
or merging units thereof or transferring functions from one unit to another; (2) transferring any function
under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any
agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the
provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. These point to situations where a body or an office is already
existent by a modification or alteration thereof has to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision. Accordingly, the answer is in the negative.
xxx
xxx [T]he creation of the Truth Commission is not justified by the president’s power of control. Control
is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the former with that of the latter. Clearly,
the power of control is entirely different from the power to create public offices. The former is inherent
in the Executive, while the latter finds basis from either a valid delegation from Congress, or his
inherent duty to faithfully execute the laws.
I am constrained to disagree because, contrary to the ponencia’s holding, the President’s power to
reorganize is not limited by the enumeration in Section 31 of the Administrative Code.
As previously discussed, the President’s power of control, in conjunction with his constitutional
obligation to faithfully execute the laws, allows his direct assumption of the powers and functions of
executive departments, bureaus and offices.21 To repeat, the overarching framework in the President’s
power of control enables him to assume directly the functions of an executive department. On the macro
level, the President exercises his power of control by directly assuming all the functions of executive
departments, bureaus or offices. On the micro level, the President may directly assume certain or
specific, not all, functions of a Department. In the milieu under which the Truth Commission is
supposed to operate, pursuant to E. O. No. 1, only the investigatory function of the DOJ for certain
crimes is directly assumed by the President, then delegated to the Truth Commission. After all, it is
axiomatic that the grant of broad powers includes the grant of a lesser power; in this case, to be
exercised — and delegated —at the President’s option.
My conclusion that the transfer of functions of a Department to the Office of the President falls within
the President’s power of reorganization is reinforced by jurisprudence.
In Larin v. Executive Secretary,22 the Court sustained the President’s power to reorganize under
Section 20, Book III of E.O. 292, in relation to PD No. 1416, as amended by PD No. 1772:
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:
"Sec. 20. Residual Powers.—Unless Congress provides otherwise, the President shall exercise such
other powers and functions vested in the President which are provided for under the laws and which are
not specifically enumerated above or which are not delegated by the President in accordance with law.
This provision speaks of such other powers vested in the president under the law. What law then gives
him the power to reorganize? It is Presidential decree No. 1772 which amended Presidential Decree no.
1416. These decrees expressly grant the President of the Philippines the continuing authority to
reorganize the national government, which includes the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities
and to standardize salaries and materials. The validity of these two decrees are unquestionable. The
1987 Constitution clearly provides that "all laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with this Constitution shall remain operative
until amended, repealed or revoked." So far, there is yet not law amending or repealing said decrees.
Subsequently, Buklod ng Kawaning EIIB v. Zamora,23 affirmed the holding in Larin and explicitly
recognized the President’s authority to transfer functions of other Departments or Agencies to the Office
of the President, consistent with his powers of reorganization, to wit:
But of course, the list of legal basis authorizing the President to reorganize any department or agency in
the executive branch does not have to end here. We must not lose sight of the very sources of the power
—that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No.
292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of the president." For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre, we ruled that reorganization "involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when
there is an alteration of the existing structure of government or units therein, including the lines of
control, authority and responsibility between them. xxx (emphasis supplied)
Then, and quite significantly, in Bagaoisan v. National Tobacco Administration,24 this Court clarified
the nature of the grant to the President of the power to reorganize the administrative structure of the
Office of the President, thus:
In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon. Ronaldo d. Zamora, in his capacity as the
Executive Secretary, et. al., this Court has had occasion to also delve on the President’s power to
reorganize the Office of the President under Section 31 (2) and (3) of Executive Order No. 292 and the
power to reorganize the Office of the President Proper. The Court has there observed:
"x x x. Under Section 31(1) of E.O. 292, the President can reorganize the Office of the President Proper
by abolishing, consolidating or merging units, or by transferring functions from one unit to another. In
contrast, under Section 31(2) and (3) of EO 292, the President’s power to reorganize offices outside the
Office of the President Proper but still within the Office of the President is limited to merely transferring
functions or agencies from the Office of the President to Departments or Agencies, and vice versa."
The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292 (Administrative code of
1987), above-referred to, reads thusly:
Sec. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.

The first sentence of the law is an express grant to the President of a continuing authority to reorganize
the administrative structure of the Office of the President. The succeeding numbered paragraphs are not
in the nature of provisos that unduly limit the aim and scope of the grant to the President of the power to
reorganize but are to be viewed in consonance therewith. Section 31(1) of Executive order No. 292
specifically refers to the President’s power to restructure the internal organization of the Office of the
President Proper, by abolishing, consolidating or merging units hereof or transferring functions from
unit to another, while Section 31(2) and (3) concern executive offices outside the Office of the President
Proper allowing the President to transfer any function under the Office of the President to any other
Department or Agency and vice versa, and the transfer of any agency under the Office of the President
to any other department or agency and vice versa. (Emphasis supplied)
Notably, based on our ruling in Bagaoisan, even if we do not consider P.D. No. 1416, as amended by
P.D. No. 1772, the abstraction of the Truth Commission, as fortified by the President’s power to
reorganize found in paragraph 2, Section 31 of the Administrative Code, is demonstrably permitted.
That the Truth Commission is a derivative of the reorganization of the Office of the President should
brook no dissent. The President is not precluded from transferring and re-aligning the fact-finding
functions of the different Departments regarding certain and specific issues, because ultimately, the
President’s authority to reorganize is derived from the power-and-duty nexus fleshed out in the two
powers granted to him in Section 17, Article VII of the Constitution.25
I earnestly believe that, even with this Court’s expanded power of judicial review, we still cannot
refashion, and dictate on, the policy determination made by the President concerning what function, of
whichever Department, regarding specific issues, he may choose to directly assume and take cognizance
of. To do so would exceed the boundaries of judicial authority and encroach on an executive
prerogative. It would violate the principle of separation of powers, the constitutional guarantee that no
branch of government should arrogate unto itself those functions and powers vested by the Constitution
in the other branches.26
In fine, it is my submission that the Truth Commission is a public office validly created by the President
of the Philippines under authority of law, as an adjunct of the Office of the President — to which the
President has validly delegated the fact-finding and investigatory powers [of the Department of Justice]
which he had chosen to personally assume. Further, it is the product of the President’s exercise of the
power to reorganize the Office of the President granted under the Administrative Code.
This conclusion inevitably brings to the threshold of our discussion the matter of the "independence" of
the Truth Commission, subject of an amusing exchange we had with the Solicitor General during the
oral argument, and to which the erudite Justice Arturo D. Brion devoted several pages in his Separate
Concurring Opinion. The word "independent," as used in E. O. No. 1, cannot be understood to mean
total separateness or full autonomy from the Office of the President. Being a creation of the President of
the Philippines, it cannot be totally dissociated from its creator. By the nature of its creation, the Truth
Commission is intimately linked to the Office of the President, and the Executive Order, as it were, is
the umbilical cord that binds the Truth Commission to the Office of the President.
The word "independent," used to describe the Commission, should be interpreted as an expression of the
intent of the President: that the Truth Commission shall be accorded the fullest measure of freedom and
objectivity in the pursuit of its mandate, unbound and uninhibited in the performance of its duties by
interference or undue pressure coming from the President. Our exchange during the oral argument
ended on this note: that while the Truth Commission is, technically, subject to the power of control of
the President, the latter has manifested his intention, as indicated in the Executive Order, not to exercise
the power over the acts of the Commission.
E. O. No. 1 and the Equal Protection Clause
Enshrined in Section 1, Article III of the Philippine Constitution is the assurance that all persons shall
enjoy the equal protection of the laws, expressed as follows:
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. (emphasis supplied)
The equality guaranteed under this clause is equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of treatment of persons who are classified
based on substantial differences in relation to the object to be accomplished.27 When things or persons
are different in fact or circumstances, they may be treated in law differently. On this score, this Court
has previously intoned that:
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification should be based on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This Court has held that the standard is satisfied
if the classification or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.28
Thus, when a statute or executive action is challenged on the ground that it violates the equal protection
clause, the standards of judicial review are clear and unequivocal:
It is an established principle in constitutional law that the guaranty of the equal protection of the laws is
not violated by a legislation based on a reasonable classification. Classification, to be valid, must: (1)
rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing
conditions only; and (4) apply equally to all members of the same class.29
Further, in a more recent decision, we also declared:
In consonance thereto, we have held that "in our jurisdiction, the standard and analysis of equal
protection challenges in the main have followed the ‘rational basis’ test, coupled with a deferential
attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution." x x x.
Under this test, a legislative classification, to survive an equal protection challenge, must be shown to
rationally further a legitimate state interest. The classifications must be reasonable and rest upon some
ground of difference having a fair and substantial relation to the object of the legislation. Since every
law has in its favor the presumption of constitutionality, the burden of proof is on the one attacking the
constitutionality of the law to prove beyond reasonable doubt that the legislative classification is without
rational basis. The presumption of constitutionality can be overcome only by the most explicit
demonstration that a classification is a hostile and oppressive discrimination against particular persons
and classes, and that there is no conceivable basis which might support it.30
The "rational basis" test is one of three "levels of scrutiny" analyses developed by courts in reviewing
challenges of unconstitutionality against statutes and executive action. Carl Cheng, in his dissertation,
"Important Right and the Private Attorney General Doctrine,"31 enlightens us, thus:
[I]n the area of equal protection analysis, the judiciary has developed a ‘level of scrutiny’ analysis for
resolving the tensions inherent in judicial review. When engaging in this analysis, a court subjects the
legislative or executive action to one of three levels of scrutiny, depending on the class of persons and
the rights affected by the action. The three levels are rational basis scrutiny, intermediate scrutiny, and
strict scrutiny. If a particular legislative or executive act does not survive the appropriate level of
scrutiny, the act is held to be unconstitutional. If it does survive, it is deemed constitutional. The three
tensions discussed above and, in turn, the three judicial responses to each, run parallel to these three
levels of scrutiny. In response to each tension, the court applies a specific level of scrutiny.
He goes on to explain these "levels of scrutiny", as follows:
The first level of scrutiny, rational basis scrutiny, requires only that the purpose of the legislative or
executive act not be invidious or arbitrary, and that the act’s classification be reasonably related to the
purpose. Rational basis scrutiny is applied to legislative or executive acts that have the general nature of
economic or social welfare legislation. While purporting to set limits, rational basis scrutiny in practice
results in complete judicial deference to the legislature or executive. Thus, a legislative or executive act
which is subject to rational basis scrutiny is for all practical purposes assured of being upheld as
constitutional.
The second level of scrutiny, intermediate scrutiny, requires that the purpose of the legislative or
executive act be an important governmental interest and that the act’s classification be significantly
related to the purpose. Intermediate scrutiny has been applied to classifications based on gender and
illegitimacy. The rationale for this higher level of scrutiny is that gender and illegitimacy classifications
historically have resulted from invidious discrimination. However, compared to strict scrutiny,
intermediate scrutiny’s presumption of invidious discrimination is more readily rebutted, since benign
motives are more likely to underlie classifications triggering intermediate scrutiny.
The third level of scrutiny is strict scrutiny. Strict scrutiny requires that the legislative or executive act’s
purpose be a compelling state interest and that the act’s classification be narrowly tailored to the
purpose. Strict scrutiny is triggered in two situations: (1) where the act infringes on a fundamental right;
and (2) where the act’s classification is based on race or national origin. While strict scrutiny purports to
be only a very close judicial examination of legislative or executive acts, for all practical purposes, an
act subject to strict scrutiny is assured of being held unconstitutional. (Citations omitted.)
that, in a host of cases, this Court has recognized the applicability of the foregoing tests. Among them
are City of Manila v. Laguio, Jr.,32 Central Bank Employees Association v. Bangko Sentral ng
Pilipinas,33 and British American Tobacco v. Camacho, et al.,34 in all of which the Court applied the
minimum level of scrutiny, or the rational basis test.
It is important to remember that when this Court resolves an equal protection challenge against a
legislative or executive act, "[w]e do not inquire whether the [challenged act] is wise or desirable xxx.
Misguided laws may nevertheless be constitutional. Our task is merely to determine whether there is
‘some rationality in the nature of the class singled out.’"35
Laws classify in order to achieve objectives, but the classification may not perfectly achieve the
objective.36 Thus, in Michael M. v. Supreme Court of Sonoma County,37 the U.S. Supreme Court said
that the relevant inquiry is not whether the statute is drawn as precisely as it might have been, but
whether the line chosen [by the legislature] is within constitutional limitations. The equal protection
clause does not require the legislature to enact a statute so broad that it may well be incapable of
enforcement.38
It is equally significant to bear in mind that when a governmental act draws up a classification, it
actually creates two classes: one consists of the people in the "statutory class" and the other consists
precisely of those people necessary to achieve the objective of the governmental action (the "objective
class").39 It could happen that –
The "statutory class" may include "more" than is necessary in the classification to achieve the objective.
If so, the law is "over-inclusive." The classification may also include "less" than is necessary to achieve
the objective. If so, the statute is "under-inclusive."
A curfew law, requiring all persons under age eighteen to be off the streets between the hours of
midnight and 6 a.m., presumably has as its objective the prevention of street crime by minors; this is
"over-inclusive" since the class of criminal minors (the objective class) is completely included in the
class of people under age eighteen (the statutory class), but many people under age eighteen are not part
of the class of criminal minors.
A city ordinance that bans streetcar vendors in a heavily visited "tourist quarter" of the city in order to
alleviate sidewalk and street congestion is "under-inclusive". All streetcar vendors (the statutory class)
contribute toward sidewalk and street congestion, but the class of people causing sidewalk and street
congestion (the objective class) surely includes many others as well.
It is rare if not virtually impossible for a statutory class and an objective class to coincide perfectly.40
And, as the ponencia itself admits, "under-inclusion" or "over-inclusion, per se, is not enough reason to
invalidate a law for violation of the equal protection clause, precisely because perfection in
classification is not required.41
Thus, in the determination of whether the classification is invidious or arbitrary, its relation to the
purpose must be examined. Under the rational basis test, the presence of any plausible legitimate
objective for the classification, where the classification serves to accomplish that objective to
any degree, no matter how tiny, would validate the classification. To be invalidated on constitutional
grounds, the test requires that the classification must have one of the following traits: (1) it has
absolutely no conceivable legitimate purpose; or (2) it is so unconnected to any conceivable objective,
that it is absurd, utterly arbitrary, whimsical, or even perverse.42

Given the foregoing discussion on this constitutional guarantee of equal protection, we now confront the
question: Does the mandate of Executive Order No. 1, for the Truth Commission to investigate "graft
and corruption during the previous administration," violate the equal protection clause?
I answer in the negative.
First, because Executive Order No. 1 passes the rational basis test.
To repeat, the first level of scrutiny known as the rational basis test, requires only that the purpose of the
legislative or executive act not be invidious or arbitrary, and that the act’s classification be reasonably
related to the purpose. The classification must be shown to rationally further a legitimate state
interest.43 In its recent equal protection jurisprudence, the Court has focused primarily upon (1) the
"rationality" of the government’s distinction, and (2) the "purpose" of that distinction.
To the point, we look at the definition of an executive order and the articulated purpose of E.O. No. 1.
An executive order is an act of the President providing for rules in implementation or execution of
constitutional or statutory powers.44 From this definition, it can easily be gleaned that E. O. No. 1 is
intended to implement a number of constitutional provisions, among others, Article XI, Section 1. In
fact, E.O. No. 1 is prefaced with the principle that "public office is a public trust" and "public officers
and employees, who are servants of the people, must at all time be accountable to the latter, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives."
What likewise comes to mind, albeit not articulated therein, is Article II, Section 27, of the 1987
Constitution, which declares that "[t]he State shall maintain honesty and integrity in the public service
and take positive and effective measures against graft and corruption." In addition, the immediately
following section provides: "[s]ubject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest."45 There is
also Article XI, Section 1, which sets the standard of conduct of public officers, mandating that
"[p]ublic officers and employees must, at all times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest
lives." There is, therefore, no gainsaying that the enforcement of these provisions, i.e., the fight against
corruption, is a compelling state interest.
Not only does the Constitution oblige the President to ensure that all laws be faithfully executed,46 but
he has also taken an oath to preserve and defend the Constitution.47 In this regard, the President’s
current approach to restore public accountability in government service may be said to involve a
process, starting with the creation of the Truth Commission.
It is also no secret that various commissions had been established by previous Presidents, each
specifically tasked to investigate certain reports and issues in furtherance of state interest. Among the
latest of such commissions is the Zeñarosa Commission, empowered to investigate the existence of
private armies, as well as the Maguindanao Massacre.48
Under E.O. No. 1, the President initially classified the investigation of reports of graft and corruption
during the previous administration because of his avowed purpose to maintain the public trust that is
characteristic of a public office. The first recital (paragraph) of E.O. No. 1 does not depart therefrom.
The succeeding recitals (paragraphs) enumerate the causality of maintaining public office as a public
trust with corruption as "among the most despicable acts of defiance of this principle and notorious
violation of this mandate." Moreover, the President views corruption as "an evil and scourge which
seriously affects the political, economic, and social life of a nation." Thus, the incumbent President has
determined that the first phase of his fight against graft and corruption is to have reports thereof during
the previous administration investigated. There is then a palpable relation between the supposed
classification and the articulated purpose of the challenged executive order.
The initial categorization of the issues and reports which are to be the subject of the Truth
Commission’s investigation is the President’s call. Pursuing a system of priorities does not translate to
suspect classification resulting in violation of the equal protection guarantee. In his assignment of
priorities to address various government concerns, the President, as the
Chief Executive, may initially limit the focus of his inquiry and investigate issues and reports one at a
time. As such, there is actually no differential treatment that can be equated to an invalid classification.

E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because there is a claimed inequality
on its face or in the manner it is to be applied. On its face, there is actually no class created. The
ponencia harps on three provisions in the executive order directing the conduct of an investigation into
cases of large scale graft and corruption "during the previous administration." On that basis, the
ponencia concludes that there is invidious discrimination, because the executive order is focused only
on the immediate past administration.
I disagree. While the phrase "previous administration" alludes to persons, which may, indeed, be a class
within the equal protection paradigm, it is important to note that the entire phrase is "during the previous
administration," which connotes a time frame that limits the scope of the Commission’s inquiry. The
phrase does not really create a separate class; it merely lays down the pertinent period of inquiry. The
limited period of inquiry, ostensibly (but only initially) excluding administrations prior to the immediate
past administration, is not, per se, an intentional and invidious discrimination anathema to a valid
classification. Even granting that the phrase creates a class, E.O. No. 1 has not, as yet, been given any
room for application, since barely a few days from its issuance, it was subjected to a constitutional
challenge. We cannot allow the furor generated by this controversy over the creation of the Truth
Commission to be an excuse to apply the strict scrutiny test, there being no basis for a facial challenge,
nor for an "as-applied" challenge.
To reiterate for emphasis, the determination of the perceived instances of graft and corruption that ought
to claim priority of investigation is addressed to the executive, as it involves a policy decision. This
determination must not to be overthrown simply because there are other instances of graft and
corruption which the Truth Commission should also investigate.49 In any event, Section 17 of E.O. No.
1 responds to this objection, when it provides:
SECTION 17. Special Provision Concerning Mandate. – If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
It may also be pointed out that E.O. No. 1 does not confer a right nor deprive anyone of the exercise of
his right. There is no right conferred nor liability imposed that would constitute a burden on
fundamental rights so as to justify the application of the strict scrutiny test. A fact-finding investigation
of certain acts of public officers committed during a specific period hardly merits this Court’s
distraction from its regular functions. If we must exercise the power of judicial review, then we should
use the minimum level of scrutiny, the rational basis test.
On more than one occasion, this Court denied equal protection challenges to statutes without evidence
of a clear and intentional discrimination.50 The pervasive theme in these rulings is a claim of
discriminatory prosecution, not simply a claim of discriminatory investigation. In People v. Piedra,51
we explained:
The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by
itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity
to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a
violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful
administration by officers of a statute fair on its face, resulting in its unequal application to those who
are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it
an element of intentional or purposeful discrimination. This may appear on the face of the action taken
with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a
discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose
is not presumed, there must be a showing of "clear and intentional discrimination." Appellant has failed
to show that, in charging appellant in court, that there was a "clear and intentional discrimination" on
the part of the prosecuting officials.
The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence
before it can justify a reasonable belief that a person has committed an offense. The presumption is that
the prosecuting officers regularly performed their duties, and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to
overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is
insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the
laws. There is also common sense practicality in sustaining appellant's prosecution.
While all persons accused of crime are to be treated on a basis of equality before the law, it does not
follow that they are to be protected in the commission of crime. It would be unconscionable, for
instance, to excuse a defendant guilty of murder because others have murdered with impunity. The
remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty
at the expense of society x x x. Protection of the law will be extended to all persons equally in the
pursuit of their lawful occupations, but no person has the right to demand protection of the law in the
commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be
converted into a defense for others charged with crime, the result would be that the trial of the district
attorney for nonfeasance would become an issue in the trial of many persons charged with heinous
crimes and the enforcement of law would suffer a complete breakdown. (emphasis supplied.)
Evidently, the abstraction of the President’s power to directly prosecute crimes, hand in hand with his
duty to faithfully execute the laws, carries with it the lesser power of investigation. To what extent, then,
should this Court exercise its review powers over an act of the President directing the conduct of a fact-
finding investigation that has not even commenced? These are clearly issues of wisdom and policy.
Beyond what is presented before this Court, on its face, the rest remains within the realm of speculation.
It bears stressing that by tradition, any administration’s blueprint for governance covers a wide range of
priorities. Contrary to the ponencia’s conclusion, such a roadmap for governance obviously entails a
"step by step" process in the President’s system of priorities.
Viewed in this context, the fact that the "previous administration" was mentioned thrice in E.O. No. 1,
as pointed out by the ponencia, is not "purposeful and intentional discrimination" which violates the
equal protection clause. Such a circumstance does not demonstrate a "history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process."52 It simply has to be taken in the light of the
President’s discretion to determine his government’s priorities.
It, therefore, remains unclear how the equal protection clause is violated merely because the E. O. does
not specify that reports of large scale graft and corruption in other prior administrations should likewise
be investigated. Notably, the investigation of these reports will not automatically lead to prosecution, as
E.O No. 1 only authorizes the investigation of certain reports with an accompanying recommended
action.
The following provisions of the executive order are too clear to brook objection:
1. 5th Whereas Clause
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public servants;
2. Section 1
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by the public officers
and employees, their co-principals, accomplices and accessories from the private sector, if any, during
the previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
3. Section 2
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendation to the President, Congress and the Ombudsman.
Second, petitioners do not even attempt to overthrow the presumption of constitutionality of executive
acts. They simply hurl pastiche arguments hoping that at least one will stick.
In any imputed violations of the equal protection clause, the standard of judicial review is always
prefaced by a presumption of constitutionality:
As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate
branch of the Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-
honored principle that statute is presumed to be valid. This presumption is rooted in the doctrine of
separation of powers which enjoins upon the three coordinate departments of the Government a
becoming courtesy for each other’s acts. Hence, to doubt is to sustain. The theory is that before the act
was done or the law was enacted, earnest studies were made by Congress, or the President, or both, to
insure that the Constitution would not be breached. This Court, however, may declare a law, or portions
thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the
Constitution, not merely a doubtful or argumentative one. In other words, before a statute or a portion
thereof may be declared unconstitutional, it must be shown that the statute or issuance violates the
Constitution clearly, palpably and plainly, and in such a manner as to leave no doubt or hesitation in the
mind of the Court.53
Clearly, the acts of the President, in the exercise of his or her power, is preliminarily presumed
constitutional such that the party challenging the constitutionality thereof (the executive act) on equal
protection grounds bears the heavy burden of showing that the official act is arbitrary and capricious.54
Indeed, laws or executive orders, must comply with the basic requirements of the Constitution, and as
challenged herein, the equal protection of the laws. Nonetheless, only in clear cases of invalid
classification violative of the equal protection clause will this Court strike down such laws or official
actions.
Third, petitioner Members of the House of Representatives are not proper parties to challenge the
constitutionality of E.O. No. 1 on equal protection grounds. Petitioner Members of the House of
Representatives cannot take up the lance for the previous administration. Under all three levels of
scrutiny earlier discussed, they are precluded from raising the equal protection of the laws challenge.
The perceptive notation by my esteemed colleague, Justice Carpio Morales, in her dissent, comes to life
when she observes that petitioner Members of the House of Representatives cannot vicariously invoke
violation of equal protection of the laws. Even assuming E.O. No. 1 does draw a classification, much
less an unreasonable one, petitioner Members of the House of Representatives, as well as petitioner
Biraogo, are not covered by the supposed arbitrary and unreasonable classification.
If we applied both intermediate and strict scrutiny, the nakedness of petitioners’ arguments are revealed
because they do not claim violation of any of their fundamental rights, nor do they cry discrimination
based on race, gender and illegitimacy. Petitioners’ equal protection clause challenge likewise dissolves
when calibrated against the purpose of E.O. No. 1 and its supposed classification of the administration
which the Truth Commission is tasked to investigate. Nowhere in the pleadings of petitioners and their
claim of violation of separation of powers and usurpation of legislative power by the executive is it
established how such violation or usurpation translates to violation by E.O. No. 1 of the equal protection
of the laws. Thus, no reason exists for the majority to sustain the challenge of equal protection if none of
the petitioners belong to the class, claimed by the majority to be, discriminated against.
Finally, I wish to address the proposition contained in Justice Brion’s concurrence— the creation of the
Truth Commission has a reasonable objective, albeit accomplished through unreasonable means.
According to him, E.O. No. 1 is objectionable on due process grounds as well. He propounds that the
"truth-telling" function of the Truth Commission violates due process because it primes the public to
accept the findings of the Commission as actual and gospel truth.
Considering all the foregoing discussion, I must, regrettably, disagree with the suggestion. Peculiar to
our nation is a verbose Constitution. Herein enshrined are motherhood statements— exhortations for
public officers to follow. A quick perusal of E.O. No. 1 bears out a similar intonation. Although the
Solicitor General may have made certain declarations, read as admissions by the other Members of this
Court, these cannot bind the Supreme Court in interpreting the constitutional grant of executive power.
The matter is simply a failure of articulation which cannot be used to diminish the power of the
executive. On the whole, the erroneous declarations of the Solicitor General, preempting and
interpreting the President’s exercise of executive power beyond the articulated purpose of E.O. No. 1,
are not equivalent to the wrongful exercise by the President of executive power.
Let me then close this dissertation with Marcos v. Manglapus55 which trailblazed and redefined the
extent of judicial review on the powers of the co-equal branches of government, in particular, executive
power:
Under the Constitution, judicial power includes the duty to "determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the party of any branch or
instrumentality of the Government." xxx
The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the
political departments to decide. But nonetheless there remain issues beyond the Court’s jurisdiction the
determination which is exclusively for the President, for Congress or for the people themselves through
a plebiscite or referendum. We cannot, for example, question the President’s recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant.
Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberation of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear
that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power,"
which specifically empowers the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the
writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is supreme, as regards the suspension of
the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check—not to supplant—the
Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.
It is for the foregoing reasons that I vote to DISMISS the petitions.
ANTONIO EDUARDO B. NACHURA
Associate Justice
Footnotes
1 SEC. 17. The President shall have control of all the executive departments, bureau and offices. He
shall ensure that the laws be faithfully executed.
2 G.R. No. 171396, May 3, 2006, 489 SCRA 160.
3 Fernandez v. Sto. Tomas, 312 Phil. 235, 247 (1995).
4 50 Phil. 259 (1927).
 20 Section 2, Chapter 1, Book IV of the 1987 Administrative Code.
5 Section 1. The executive power shall be vested in the President of the Philippines.
21 Ople v. Torres, 354 Phil 949 (1998).
6 Cruz, Philippine Political Law (2005 ed.), p. 182.
22 G.R. No. 112745, October 16, 1997, 280 SCRA 713.
7 G.R. No. 143481, February 15, 2002.
23 G.R Nos. 142801-142802, July 10, 2001, 360 SCRA 718.
8 Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He
shall ensure that the laws be faithfully executed. 24 G.R. No. 152845, August 5, 2003, 408 SCRA 337.

9 Cruz, Philippine Political Law (2005 ed.), p. 213. 25 Sinco, Philippine Political Law, p. 261,

10 Id. at 216. 26 See Tañada v. Angara, 338 Phil. 546 (1997), where the Court did not "review the wisdom of the
President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade
11 354 Phil. 948 (1998). liberalization as a policy espoused by the said international body." The issue passed upon by the Court
was limited to determining whether there had been a grave abuse of discretion amounting to lack or
12 97 Phil. 143 (1955). excess of jurisdiction on the part of the Senate in ratifying the WTO Agreement and its three annexes.

13 Cruz, Philippine Political Law (2005 ed.), pp. 211-212. 27 British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511.

14 101 Phil. 328 (1957). 28 Victoriano v. Elizalde Rope Workers’ Union, 158 Phil. 60 (1974).

15 G.R. No.L-30852, February 26, 1988, 158 SCRA 158. 29 Coconut Oil Refiners Association v. Torres, 503 Phil. 42, 53-54 (2005).

16 Sinco, Philippine Political Law (10th ed.), p. 260. 30 British American Tobacco, v. Camacho, et al., supra note 27.

17 See Marcos v. Manglapus, G.R. No. 88211, September 15, 1989, 178 SCRA 760. 31 California Law Review 1929, December 1985.

18 See Chapter 8, Title II, Book III of the Administrative Code. 32 G.R. No. 118127, April 12, 2005, 455 SCRA 308.

19 Section 31, Chapter 10, Title III, Book III of the Administrative Code. 33 487 Phil. 531 (2004).
34 Supra note 27.
35 Prince Eric Fuller v. State of Oregon, 417 U.S., 40, 94 S.Ct.2116, 40 L.Ed.2d 577.
36 Calvin Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
37 450 U.S. 464, 101 S.Ct. 1200, U.S. Cal., 1981, March 23, 1981.
38 Id.
50 See People v. Dumlao, G.R. No. 168198, March 2, 2009, 580 SCRA 409 citing Santos v. People and
People v. Dela Piedra.
51 G.R. No. 121777, January 24, 2001, 350 SCRA 163.
52 State v. Hatori, 92 Hawaii 217, 225 [1999] citing State v. Sturch, 82 Hawaii 269, 276 [1996].
53 Coconut Oil Refiners Association, Inc., et al. v. Hon. Ruben Torres, et. al., 503 Phil. 42, 53-54
(2005).

39 Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301. 54 People v. Dela Piedra, 403 Phil. 31 (2001).

40 Id. at 302-302. 55 G.R. No. 88211, September 15, 1989, 177 SCRA 668, 695-697.

41 Id. at 303.
The Lawphil Project - Arellano Law Foundation
42 Id.
CONCURRING OPINION
43 Id. at 299.
LEONARDO-DE CASTRO, J.:
44 Section 2, Book III, Title I, Administrative Code.
I concur in the result of the ponencia of Justice Jose Catral Mendoza and join the separate opinions of
45 CONSTITUTION, Section 28, Article II. my colleagues, Chief Justice Renato C. Corona, Justice Arturo D. Brion and Justice Jose Portugal Perez.
I vote to declare Executive Order No. 1 (EO No. 1) unconstitutional, as a well-intentioned, but ill-
46 CONSTITUTION, Section 17, Article VII. devised, presidential issuance that transgresses the boundaries of executive power and responsibility set
by the Constitution and our laws.
47 CONSTITUTION, Section, 5, Article VII.
While I agree with the majority consensus that equal protection is an issue that must be resolved in these
48 See Annex "A" of the Respondent’s Memorandum. consolidated petitions, the weightier legal obstacles to the creation of the Philippine Truth Commission
(the Commission) by executive order deserve greater attention in this discussion.
49 See: Miller v. Wilson, 236 U.S. 373, 384, 35 S. Ct. 342, 59 L. Ed. 628 (1915).
If the Commission created by EO No. 1 were a living person, it would be suffering from the most acute
identity crisis. Is it an independent body? Is it a mere ad hoc fact-finding body under the control of the
President? And in either case, what legal repercussion does its creation have on our constitutionally and
statutorily developed system for investigating and prosecuting graft and corruption cases?
Indeed, from the answers to these questions, it becomes evident that those who have designed this
constitutional anomaly designated as a "truth commission" have painted themselves into a legal corner
with no escape.
If the Commission is an office independent of the President, then its creation by executive fiat is
unconstitutional.
The concept of a "truth commission" in other jurisdictions has a primordial characteristic –
independence. As a body created to investigate and report on the "truth" of historical events (ordinarily
involving State violations of human rights en masse) in a country in transition from an authoritarian
regime to a democratic one or from a conflict situation to one of peace, the freedom of the members of
the truth commission from any form of influence is paramount to ensure the credibility of any findings it
may make.
Thus, "truth commissions" have been described in this wise:
Truth commissions are non-judicial, independent panels of inquiry typically set up to establish the facts
and context of serious violations of human rights or of international humanitarian law in a country’s
past. Commissions’ members are usually empowered to conduct research, support victims, and propose
policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions
may aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend institutional reforms. Most commissions focus on
victims’ needs as a path toward reconciliation and reducing conflict about what occurred in the past.1
(Emphases supplied.)
Notably, the Office of the United Nations High Commissioner for Human Rights likewise lists
operational independence as one of the core principles in the establishment of a truth commission:
The legitimacy and public confidence that are essential for a successful truth commission process
depend on the commission’s ability to carry out its work without political interference. Once
established, the commission should operate free of direct influence or control by the Government,
including in its research and investigations, budgetary decision-making, and in its report and
recommendations. Where financial oversight is needed, operational independence should be preserved.
Political authorities should give clear signals that the commission will be operating independently.2
(Emphases supplied.)
With due respect, I disagree with Justice Antonio T. Carpio’s opinion that the naming of the body
created by EO No. 1 as the "Philippine Truth Commission" was a mere attempt to be novel, to depart
from the tired and repetitious scheme of naming a commission after its appointed head/leader or of
calling it a "fact-finding" body. Obviously, the title given to the Commission is meant to convey the
message that it is independent of the Office of the President.
Those who dissent from the majority position gloss over the fact that EO No. 1 itself expressly states
that the Commission’s members shall "act as an independent collegial body."3 During oral arguments,
the Solicitor General confirmed that what EO No. 1 intended is for the Commission to be an
independent body over which the President has no power of control.4 The Solicitor General further
claimed that one of the functions of the Commission is "truth-telling." Verily, the creation of the
Philippine Truth Commission and its naming as such were done as a deliberate reference to the tradition
of independent truth commissions as they are conceived in international law, albeit adapted to a
particular factual situation in this jurisdiction.
If this Philippine Truth Commission is an office independent of the President and not subject to the
latter’s control and supervision, then the creation of the Commission must be done by legislative action
and not by executive order. It is undisputed that under our constitutional framework only Congress has
the power to create public offices and grant to them such functions and powers as may be necessary to
fulfill their purpose. Even in the international sphere, the creation of the more familiar truth
commissions has been done by an act of legislature.5
Neither can the creation of the Commission be justified as an exercise of the delegated legislative
authority of the President to reorganize his office and the executive department under Section 31,
Chapter 10, Title III, Book III of the Administrative Code of 1987. The acts of reorganization
authorized under said provision are limited to the following:
SEC. 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other Departments or Agencies. (Emphases
supplied.)
There is nothing in EO No. 1 that indicates that the Commission is a part of the executive department or
of the Office of the President Proper. Indeed, it is Justice Carpio who suggests that the President may
appoint the commissioners of the Philippine Truth Commission as presidential special assistants or
advisers in order that the Commission be subsumed in the Office of the President Proper and to clearly
place EO No. 1 within the ambit of Section 31. To my mind, the fact that the commissioners are
proposed to be appointed as presidential advisers is an indication that the Philippine Truth Commission
was initially planned to be independent of the President and the subsequent appointment of the
commissioners as presidential advisers will be merely curative of the patent defect in the creation of the
Commission by an Executive Order, as an independent body.
I agree with Justice Brion that what EO No. 1 sought to accomplish was not a mere reorganization under
the delegated legislative authority of the President. The creation of the Philippine Truth Commission did
not involve any restructuring of the Office of the President Proper nor the transfer of any function or
office from the Office of the President to the various executive departments and vice-versa. The
Commission is an entirely new specie of public office which, as discussed in the concurring opinions, is
not exercising inherently executive powers or functions but infringing on functions reserved by the
Constitution and our laws to other offices.
If the Commission is under the control and supervision of the President, and not an independent body,
the danger that the Commission may be used for partisan political ends is real and not imagined.
For the sake of argument, let us accept for the moment the propositions of our dissenting colleagues
that:
(a) The Commission is not a separate public office independent of the President;
(b) The Commission is an executive body (or a part of the Office of the President Proper) that may be
created by the President through an executive order under Section 31; and
(c) The Commission is merely an ad hoc fact-finding body intended to apprise the President of facts that
will aid him in the fulfillment of his duty to ensure the faithful execution of the laws.
If the foregoing statements are true, then what EO No. 1 created is a body under the control and
supervision of the President. In fact, if the commissioners are to be considered special advisers to the
President, the Commission would be a body that serves at the pleasure of the President. Proponents who
support the creation of the Commission in the manner provided for under EO No. 1 should drop all
arguments regarding the purported independence and objectivity of the proceedings before it.
Indeed, EO No. 1 itself is replete with provisions that indicate that the existence and operations of the
Commission will be dependent on the Office of the President. Its budget shall be provided by the Office
of the President6 and therefore it has no fiscal autonomy. The reports of the Commission shall be
published upon the directive of the President.7 Further, if we follow the legal premises of our dissenting
colleagues to their logical conclusion, then the Commission as a body created by executive order may
likewise be abolished (if it is part of the Presidential Special Assistants/Advisers System of the Office of
the President Proper) or restructured by executive order. EO No. 1 may be amended, modified, and
repealed all by executive order. More importantly, if the Commission is subject to the power of control
of the President, he may reverse, revise or modify the actions of the Commission or even substitute his
own decision for that of the Commission.
Whether by name or by nature, the Philippine Truth Commission cannot be deemed politically "neutral"
so as to assure a completely impartial conduct of its purported fact-finding mandate. I further concur
with Chief Justice Corona that attempts to "sugar coat" the Philippine Truth Commission’s functions as
"harmless" deserve no credence.
The purported functions to be served by the Commission, as the concurring opinions vividly illustrate,
will subvert the functions of the Ombudsman and the constitutional and statutory developed criminal
justice system.
First, it is apparent on the face of EO No. 1 that in general "it is primarily tasked to conduct a thorough
fact-finding investigation of reported cases of graft and corruption [of such scale and magnitude that
shock and offend the moral and ethical sensibilities of the people], involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration."8 I agree with the Chief Justice’s proposition that there is no law authorizing
the President to create a body to investigate persons outside the executive department in relation to graft
and corruption cases, concurrently with the Office of the Ombudsman which has such express legal
authority. Indeed, even in jurisprudence, the instances when the power of the President to investigate
and create ad hoc committees for that purpose were upheld have been usually related to his power of
control and discipline over his subordinates or his power of supervision over local government units.
In Ganzon v. Kayanan,9 a case involving the investigation of a mayor, we held that the power of the
President to remove any official in the government service under the Revised Administrative Code and
his constitutional power of supervision over local governments were the bases for the power of the
President to order an investigation of any action or the conduct of any person in the government service,
and to designate the official committee, or person by whom such investigation shall be conducted.
In Larin v. Executive Secretary,10 where the petitioner subject of the investigation was an Assistant
Commissioner in the Bureau of Internal Revenue, we held that:
Being a presidential appointee, he comes under the direct disciplining authority of the President. This is
in line with the well settled principle that the "power to remove is inherent in the power to appoint"
conferred to the President by Section 16, Article VII of the Constitution. Thus, it is ineluctably clear that
Memorandum Order No. 164, which created a committee to investigate the administrative charge
against petitioner, was issued pursuant to the power of removal of the President. x x x.11 (Emphases
supplied.)
In a similar vein, it was ruled in Joson v. Executive Secretary,12 that:
The power of the President over administrative disciplinary cases against elective local officials is
derived from his power of general supervision over local governments. Section 4, Article X of the 1987
Constitution provides:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments.
Provinces with respect to component cities and municipalities, and cities and municipalities with respect
to component barangays shall ensure that the acts of their component units are within the scope of their
prescribed powers and functions."
The power of supervision means "overseeing or the authority of an officer to see that the subordinate
officers perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official
may take such action or step as prescribed by law to make them perform their duties. The President's
power of general supervision means no more than the power of ensuring that laws are faithfully
executed, or that subordinate officers act within the law. Supervision is not incompatible with discipline.
And the power to discipline and ensure that the laws be faithfully executed must be construed to
authorize the President to order an investigation of the act or conduct of local officials when in his
opinion the good of the public service so requires.13 (Emphases ours.)
Still on the same point, Department of Health v. Camposano14 likewise discussed that:

The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and employees faithfully comply with
the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not
affected by the fact that the investigating team and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in conducting the inquiry.15 (Emphases supplied.)
Second, the functions of the Commission, although ostensibly only recommendatory, are basically
prosecutorial in nature and not confined to objective fact finding. EO No. 1 empowers the Commission
to, among others:
SECTION 2. x x x.
xxxx
(b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporations, to produce documents,
books, records and other papers;
xxxx
(g) Turn over from time to time, for expeditious prosecution to the appropriate prosecutorial authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals, accomplices or accessories, if any, when
in the course of its investigation the Commission finds that there is reasonable ground to believe that
they are liable for graft and corruption under pertinent applicable laws. (Emphasis ours.)
I agree with Justice Perez that the aforementioned functions run counter to the very purpose for the
creation of the Office of the Ombudsman, to constitutionalize a politically independent office
responsible for public accountability as a response to the negative experience with presidential
commissions. His discussion on the constitutional history of the Office of the Ombudsman and the
jurisprudential bases for its primary jurisdiction over cases cognizable by the Sandiganbayan (i.e.,
specific offenses, including graft and corruption, committed by public officials as provided for in
Presidential Decree No. 1606, as amended) is apropos indeed.
I likewise find compelling Justice Brion’s presentation regarding the Commission’s "truth-telling"
function’s potential implications on due process rights and the right to a fair trial and the likelihood of
duplication of, or interference with, the investigatory or adjudicatory functions of the Ombudsman and
the courts. I need not repeat Justice Brion’s comprehensive and lucid discussion here. However, I do
find it fitting to echo here former Chief Justice Claudio Teehankee, Sr.’s dissenting opinion in
Evangelista v. Jarencio,16 the oft-cited authority for the President’s power to investigate, where he
stated that:
The thrust of all this is that the State with its overwhelming and vast powers and resources can and must
ferret out and investigate wrongdoing, graft and corruption and at the same time respect the
constitutional guarantees of the individual's right to privacy, silence and due process and against self-
incrimination and unreasonable search and seizure. x x x.17 (Emphases ours.)
The constitutional mandate for public accountability and the present administration’s noble purpose to
curb graft and corruption simply cannot justify trivializing individual rights equally protected under the
Constitution. This Court cannot place its stamp of approval on executive action that is constitutionally
abhorrent even if for a laudable objective, and even if done by a President who has the support of
popular opinion on his side. For the decisions of the Court to have value as precedent, we cannot decide
cases on the basis of personalities nor on something as fickle and fleeting as public sentiment. It is
worth repeating that our duty as a Court is to uphold the rule of law and not the rule of men.
Concluding Statement
Section 1, Article VIII of the 1987 Constitution provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Undeniably, from the foregoing, judicial review is not only a power but a constitutional duty of the
courts. The framers of our Constitution found an imperative need to provide for an expanded scope of
review in favor of the "non-political" courts as a vital check against possible abuses by the political
branches of government. For this reason, I cannot subscribe to Justice Maria Lourdes Sereno’s view that
the Court’s exercise of its review power in this instance is tantamount to supplanting the will of the
electorate. A philosophical view that the exercise of such power by the Judiciary may from a certain
perspective be "undemocratic" is not legal authority for this Court to abdicate its role and duty under the
Constitution. It also ignores the fact that it is the people by the ratification of the Constitution who has
given this power and duty of review to the Judiciary.
The insinuations that the members of the majority are impelled by improper motives, being
countermajoritarian and allowing graft and corruption to proliferate with impunity are utterly baseless.
Not only are these sort of ad hominem attacks and populist appeals to emotion fallacious, they are
essentially non-legal arguments that have no place in a debate regarding constitutionality. At the end of
the day, Justices of this Court must vote according to their conscience and their honest belief of what the
law is in a particular case. That is what gives us courage to stand by our actions even in the face of the
harshest criticism. Those who read our opinions, if they are truly discerning, will be able to determine if
we voted on points of law and if any one of us was merely pandering to the appointing power.
Footnotes
1 From the website of the International Center for Transitional Justice, http://ictj.org/en/tj/138.html,
accessed on December 6, 2010.
2 Rule-of-Law Tools for Post-Conflict States: Truth Commissions, Office of the United Nations High
Commissioner for Human Rights, United Nations, New York and Geneva (2006) at p. 6.
3 Section 1, EO No. 1.
4 TSN, September 28, 2010, pp. 209-215, cited in the Separate Opinion of Justice Brion.
5 To cite a few examples: The South African "Truth and Reconciliation Commission" was established
under the Promotion of National Unity and Reconciliation Act 34 of 1995 passed by that country’s
parliament. The "National Unity and Reconciliation Commission" in Rwanda was officially set up in
1999 by an act of the Transitional National Assembly.
6 Section 11 of EO No. 1.
7 Section 15 of EO No. 1.
8 Section 2, EO No. 1 with phrase in brackets supplied from Section 1.

Needless to say, this Court will fully support the present administration’s initiatives on transparency and 9 104 Phil. 483 (1958).
accountability if implemented within the bounds of the Constitution and the laws that the President
professes he wishes to faithfully execute. Unfortunately, in this instance, EO No. 1 fails this ultimate 10 345 Phil. 962 (1997).
legal litmus test.
11 Id. at 974.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice 12 352 Phil. 888 (1998).

13 Id. at 913-914.
14 496 Phil. 886 (2005).
15 Id. at 896-897.
16 160-A Phil. 753 (1975).
17 Id. at 776.
The Lawphil Project - Arellano Law Foundation
SEPARATE CONCURRING OPINION
PERALTA, J.:
On July 30, 2010, President Benigno Simeon C. Aquino III issued Executive Order (E.O.) No. 1
creating the Philippine Truth Commission of 2010 (Truth Commission), which is "primarily tasked to
conduct a thorough fact-finding investigation of reported cases of graft and corruption x x x involving
third level public officers and higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its findings and
recommendations to the President, Congress and the Ombudsman."
Petitioners filed their respective petitions questioning the constitutionality of E.O. No. 1. In G.R. No.
193036, petitioners, as members of the House of Representatives, have legal standing to impugn the
validity of E.O. No. 1, since they claim that E.O. No. 1 infringes upon their prerogatives as legislators.1
In G.R. No. 192935, petitioner, who filed his petition as a taxpayer, may also be accorded standing to
sue, considering that the issues raised are of transcendental importance to the public.2 The people await
the outcome of the President’s effort to implement his pledge to find out the truth and provide closure to
the reported cases of graft and corruption during the previous administration. The constitutional issues
raised by petitioners seek the determination of whether or not the creation of the Truth Commission is a
valid exercise by the President of his executive power.
Petitioners contend that E.O. No. 1 is unconstitutional, because only Congress may create a public
office, pursuant to Section 1, Article VI of the Constitution.3
Respondents, through the Office of the Solicitor General (OSG), counter that the issuance of E.O. No. 1
is mainly supported by Section 17, Article VII of the Constitution,4 Section 31, Title III, Book III of
E.O. No. 292, and Presidential Decree (P.D.) No. 1416, as amended by P.D. No. 1772.
Quoted in E.O. No. 1 as the legal basis for its creation is Section 31, Title III, Book III of E.O. No. 292,
otherwise known as the Revised Administrative Code of 1987, which provides:
SEC. 31. Continuing Authority of the President to Reorganize his Office. – The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or Agency as well
as transfer functions to the Office of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments and agencies.
In Bagaoisan v. National Tobacco Administration,5 the Court held that the first sentence of the law is an
express grant to the President of a continuing authority to reorganize the administrative structure of the
Office of the President. Section 31(1) of Executive Order No. 292 specifically refers to the President’s
power to restructure the internal organization of the Office of the President Proper, by abolishing,
consolidating or merging units thereof or transferring functions from one unit to another.6 Section 31(2)
and (3) concern executive offices outside the Office of the President Proper allowing the President to
transfer any function under the Office of the President to any other department or agency and vice-
versa, and the transfer of any agency under the Office of the President to any other department or
agency and vice-versa.7
Thus, the reorganization in Section 31 involves abolishing, consolidating or merging units in the Office
of the President Proper or transferring functions from one unit to another in the Office of the President
Proper, and the transfer of any function or any agency under the Office of the President to any other
department or agency and vice-versa. Nowhere is it stated that the President can create an office like the
Truth Commission, which does not result from any reorganization under Section 31. Hence, the said
section cannot be used to justify the creation of the Truth Commission.
Moreover, in its Comment, the OSG stated that one of the bases for the creation of E.O. No. 1 is P.D.
No. 1416, as amended by P.D. No. 1772, which amendment was enacted by President Ferdinand E.
Marcos on January 15, 1981.
P.D. No. 1416, as amended, is inapplicable as basis in the creation of the Truth Commission, since it
was intended by President Ferdinand E. Marcos to promote efficiency and flexibility in the organization
of the national government to strengthen the government bureaucracy when the government was in the
transition from presidential to the parliamentary form of government. This is evident in the preamble of
P.D. No. 1416,8 which states:
WHEREAS, the transition toward the parliamentary form of government will necessitate flexibility in
the organization of the national government; x x x9
The OSG admitted during the oral argument10 that the 1987 Constitution ended the power of the
President to reorganize the national government. It is noted that President Ferdinand E. Marcos
exercised legislative power concurrently with the interim Batasang Pambansa (1976) and, subsequently,
with the regular Batasang Pambansa (1984).11 After the February 1986 revolution, President Corazon
C. Aquino assumed revolutionary legislative power, and issued Proclamation No. 3, the Provisional
Freedom Constitution. Section 3, Article I of Proclamation No. 3 abolished the Batasang Pambansa,
while Section 1, Article II of the said Proclamation vested legislative power in the President until a
legislature would be elected and convened under a new Constitution. Thus, Section 6, Article XVIII
(Transitory Provisions) of the 1987 Constitution provides that "[t]he incumbent President (President
Corazon Aquino) shall continue to exercise legislative powers until the first Congress is convened."12
In view of the foregoing, the decision in Larin v. Executive Secretary13 insofar as P.D. No. 1416, as
amended by P.D. No. 1772, is cited as a law granting the President the power to reorganize, needs to be
re-examined.
Assuming that P.D. No. 1416, as amended, is still a valid law, it cannot be the basis of the creation of
the Truth Commission, because all the cases, from Larin v. Executive Secretary;14 Buklod ng
Kawaning EIIB v. Zamora;15 Secretary of the Department of Transportation and Communications v.
Mabalot;16 Bagaoisan v. National Tobacco Administration;17 Department of Environment and Natural
Resources v. DENR Region 12 Employees;18 Tondo Medical Center Employees Association v. Court
of Appeals;19 Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) v.
Romulo20 to Banda v. Ermita,21 which cited P.D. No. 1416, as amended, as a basis to reorganize,
involved reorganization or streamlining of an agency of the Executive Department. However, the Truth
Commission was not created for streamlining purposes.
The purpose of reorganization under P.D. No. 1416, as amended by P.D. No. 1772, is to "promote
simplicity, economy and efficiency in the government to enable it to pursue programs consistent with
national goals for accelerated social and economic development, and to improve upon the services of the
government in the transaction of the public business."
The creation of the Truth Commission, however, is not to promote simplicity, economy and efficiency
in the government. The Truth Commission is primarily tasked to conduct fact-finding investigation of
reported cases of graft and corruption involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any, during the previous
administration of President Gloria Macapagal-Arroyo, which separate investigative body, as stated in
the preamble, "will recommend the prosecution of the offenders and secure justice for all." It is, in part,
the implementation of the pledge of President Benigno Aquino, Jr. during the last election that if
elected, he would end corruption and the evil it breeds.

In its Memorandum, the OSG justifies the power of the President to create the Truth Commission based
on his authority to create ad hoc fact-finding committees or offices within the Office of the President,
which authority is described as an adjunct of his plenary executive power under Section 1 and his power
of control under Section 17, both of Article VII of the Constitution.22 It cited the case of Department of
Health v. Camposano,23 which held:
The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and employees faithfully comply with
the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not
affected by the fact that the investigating team and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in conducting the inquiry.
To clarify, the power of control is "the power of an officer to alter or modify or nullify or set aside what
a subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for that of the latter;"24 hence, it cannot be the basis of creating the Truth Commission.
The ponencia justifies the creation of the Truth Commission based on the President’s duty to ensure that
the laws be faithfully executed under Section 17, Article VII of the Constitution, thus:
Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.25
According to the ponencia, to ascertain if laws are faithfully executed, the President has the power to
create ad hoc investigating committees, which power has been upheld in Department of Health v.
Camposano.26 In the said case, some concerned employees of the Department of Health (DOH)-
National Capital Region (NCR) filed a complaint before the DOH Resident against certain officers of
the DOH arising from alleged anomalous purchase of medicines. The Resident Ombudsman submitted
an investigation report to the Secretary of Health recommending the filing of a formal administrative
charge of Dishonesty and Grave Misconduct against the respondents. Subsequently, the Secretary of
Health filed a formal charge against the respondents for Grave Misconduct, Dishonesty, and Violation
of Republic Act No. 3019. Thereafter, the Executive Secretary issued Administrative Order No. 298,
creating an ad hoc committee to investigate the administrative case filed against the DOH-NCR
employees. The said Administrative Order was indorsed to the Presidential Commission Against Graft
and Corruption (PCAGC), which found the respondents guilty as charged and recommended their
dismissal from the government. However, the Court overturned the dismissal of respondents by the
Secretary of DOH, because respondents were denied due process, but it declared valid the creation of
the ad hoc committee, thus:
x x x The investigation was authorized under Administrative Order No. 298 dated October 25, 1996,
which had created an Ad Hoc Committee to look into the administrative charges filed against Director
Rosalinda U. Majarais, Priscilla G. Camposano, Horacio D. Cabrera, Imelda Q. Agustin and Enrique L.
Perez.
The Investigating Committee was composed of all the members of the PCAGC: Chairman Eufemio C.
Domingo, Commissioner Dario C. Rama and Commissioner Jaime L. Guerrero. The Committee was
directed by AO 298 to "follow the procedure prescribed under Section 38 to 40 of the Civil Service Law
(PD 807), as amended." It was tasked to "forward to the Disciplining Authority the entire records of the
case, together with its findings and recommendations, as well as the draft decision for the approval of
the President."
The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and employees faithfully comply with
the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not
affected by the fact that the investigating team and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in conducting the inquiry.27
The ponencia stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow
inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the
land. The ponencia stated that this was also the objective of investigative bodies created in the past like
the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. Hence, the ponencia held that the President’s power to create investigative bodies cannot
be denied.
Albeit the President has the power to create ad hoc committees to investigate or inquire into matters for
the guidance of the President to ensure that the laws be faithfully executed, I am of the view that the
Truth Commission was not created in the nature of the aforementioned ad hoc investigating/fact-finding
bodies. The Truth Commission was created more in the nature of a public office.
Based on the creation of ad hoc investigating bodies in Department of Health v. Camposano and
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,28 the members of an ad hoc
investigative body are heads and representatives of existing government offices, depending on the
nature of the subject matter of the investigation. The ad hoc investigating body’s functions are primarily
fact-finding/investigative and recommendatory in nature.29
In this case, the members of the Truth Commission are not officials from existing government offices.
Moreover, the Truth Commission has been granted powers of an independent office as follows:
1. Engage or contract the services of resource persons, professionals and other personnel determined by
it as necessary to carry out its mandate;30
2. Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence.31
3. The Truth Commission shall have the power to engage the services of experts as consultants or
advisers as it may deem necessary to accomplish its mission.32
In addition, the Truth Commission has coercive powers such as the power to subpoena witnesses.33
Any government official or personnel who, without lawful excuse, fails to appear upon subpoena issued
by the Commission or who, appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to administrative
disciplinary action.34 Any private person who does the same may be dealt with in accordance with
law.35 Apparently, the grant of such powers to the Truth Commission is no longer part of the executive
power of the President, as it is part of law-making, which legislative power is vested in Congress.36
There are only two instances in the Constitution wherein Congress may delegate its law-making
authority to the President:37
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of both houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.
Article VI, Sec. 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation.
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development program
of the government.38
Although the President may create investigating bodies to help him in his duty to ensure that the laws
are faithfully executed, he cannot be allowed to encroach on or usurp the law-making power of the
Legislature in the creation of such investigative bodies.
Moreover, the Truth Commission’s function is questioned on the ground that it duplicates, if not
supersedes, the function of the Office of the Ombudsman. The OSG avers that the Ombudsman’s power
to investigate is not exclusive, but is shared with other similarly authorized agencies, citing Ombudsman
v. Galicia.39
Based on Section 2 of E.O. No. 1, the powers and functions of the Truth Commission do not supplant
the powers and functions of the Ombudsman.40 Nevertheless, what is the use of the Truth Commission
if its power is merely recommendatory? Any finding of graft and corruption by the Truth Commission is
still subject to evaluation by the Office of the Ombudsman, as it is only the Office of the Ombudsman
that is empowered to conduct preliminary investigation, determine the existence of probable cause and
prosecute the case. Hence, the creation of the Truth Commission will merely be a waste of money, since
it duplicates the function of the Office of the Ombudsman to investigate reported cases of graft and
corruption.
Further, E.O. No. 1 violates that equal protection clause enshrined in the Constitution. The guarantee of
equal protection of the laws means that no person or class of persons shall be denied the same protection
of laws which is enjoyed by other persons or other classes in like circumstances.41
In this case, investigation by the Truth Commission covers only third level public officers and higher,
their co-principals, accomplices and accessories from the private sector, if any, during the previous
administration of former President Gloria Macapagal-Arroyo.42
The OSG, however, counters in its Memorandum that the equal protection clause of the Constitution is
not violated, because although E.O. No. 1 names the previous administration as the initial subject of the
investigation of cases of graft and corruption, it is not confined to the said administration, since E.O.
No. 1 clearly speaks of the President’s power to expand its coverage to prior administrations as follows:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.43
As provided above, the mandate of the Truth Commission may be expanded to include the investigation
of cases of graft and corruption during prior administrations, but it is subject to the "judgment" or
discretion of the President and it may be so extended by way of a supplemental Executive Order. In the
absence of the exercise of judgment by the President that the Truth Commission shall also conduct
investigation of reported cases of graft and corruption during prior administrations, and in the absence
of the issuance of a supplemental executive order to that effect, E.O. No. 1 covers only third level public
officers and higher, their co-principals, accomplices and accessories from the private sector, if any,
during the previous administration of former President Gloria Macapagal-Arroyo. This is admitted by
the OSG in its Memorandum44 as it explains that "to include the past administrations, at this point, may
unnecessarily overburden the Commission and lead it to lose its effectiveness." The OSG’s position
shows more consideration for the burden that the investigation may cause to the Commission, while
losing sight of the equal protection clause of the Constitution.
The OSG further states that even if the Truth Commission would solely concern itself with graft and
corruption, if there be any, of the previous administration, there is still no violation of the equal
protection clause. It submits that the segregation of the transactions of public officers during the
previous administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the E.O. seeks to correct. The distinctions cited are:
1) E.O No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions.
2) The segregation of the preceding administration as the object of fact-finding investigations is
warranted by the reality that the current administration will most likely bear the immediate
consequences of the policies of the previous administration, unlike those of the administrations long
gone.
3) The classification of the previous administration as a separate class for investigation lies in the reality
that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully
executed, are more easily established in the regime that immediately precedes the current
administration.
4) Many administrations subject the transactions of their predecessors to investigations to provide
closure to issues that are pivotal to national life or even as a routine measure of due diligence and good
housekeeping by a nascent administration.
Indeed, the equal protection clause of the Constitution allows classification.45 If the classification is
reasonable, the law may operate only on some and not all of the people without violating the equal
protection clause.46 To be valid, it must conform to the following requirements: (1) It must be based on
substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to
existing conditions only; and (4) it must apply equally to all members of the class.47
Peralta v. Commission on Elections 48 held:
The equal protection clause does not forbid all legal classifications. What [it] proscribes is a
classification which is arbitrary and unreasonable. It is not violated by a reasonable classification based
upon substantial distinctions, where the classification is germane to the purpose of the law and applies
equally to all those belonging to the same class. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction between those who fall
within the class and those who do not. There is, of course, no concise or easy answer as to what an
arbitrary classification is. No definite rule has been or can be laid down on the basis of which such
question may be resolved. The determination must be made in accordance with the facts presented by
the particular case. The general rule, which is well-settled by the authorities, is that a classification, to
be valid, must rest upon material differences between the persons, activities or things included and those
excluded. There must, in other words, be a basis for distinction. Furthermore, such classification must
be germane and pertinent to the purpose of the law. And, finally, the basis of classification must, in
general, be so drawn that those who stand in substantially the same position with respect to the law are
treated alike.
The distinctions cited by the OSG are not substantial to separate the previous administration as a distinct
class from prior administrations as subject matter for investigation for the purpose of ending graft and
corruption. As stated by the ponencia, the reports of widespread corruption in the previous
administration cannot be taken as a substantial distinction, since similar reports have been made in
earlier administrations.
Moreover, a valid classification must rest upon material differences between the persons, or activities or
thing included and excluded.49 Reasonable grounds must exist for making a distinction between those
who fall within the class and those who do not.50 There is no substantial distinction cited between
public officers who may be involved in reported cases of graft and corruption during the previous
administration and public officers who may be involved in reported cases of graft and corruption during
prior administrations in relation to the purpose of ending graft and corruption. To limit the investigation
to public officers of the previous administration is violative of the equal protection clause.
I vote, therefore, to GRANT the petitions as Executive Order No. 1 is unconstitutional since it violates
the equal protection clause of the Constitution and encroaches on the law-making power of Congress
under Section 1, Article VI of the Constitution.
DIOSDADO M. PERALTA
Associate Justice
Footnotes
1 See David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
2 Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.
3 Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of
a Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.
4 Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
5 G.R. No. 152845, August 5, 2003, 408 SCRA 337.
6 Id. (Emphasis supplied.)
7 Id. (Emphasis supplied.)
8 Enacted on June 9, 1978.
 24 Secretary of the Department of Transportation and Communications v. Mabalot, supra note 16.
9 Emphasis supplied.
25 Emphasis supplied.
10 Conducted on September 28, 2010.
26 Supra note 23.
11 Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II,
First edition, pp. 70-73, citing Legaspi v. Minister of Finance, 115 SCRA 418. (1982). 27 Department of Health v. Camposano, supra note 23.

12 Id. at 73. 28 G.R. No. 145184, March 14, 2008, 548 SCRA 295. In this case, President Fidel V. Ramos issued on
October 8, 1992, Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding
13 G.R. No. 112745, October 16, 1997, 280 SCRA 713. Committee on Behest Loans (Committee), which reads:

14 Id. WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that "Subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions
15 G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718. involving public interest";

16 G.R. No. 138200, February 27, 2002, 378 SCRA 128. WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that "The right of the state to recover
properties unlawfully acquired by public officials or employees, from them or from their nominees or
17 Supra note 5. transferees, shall not be barred by prescription, laches or estoppel";

18 G.R. No. 149724, August 19, 2003, 409 SCRA 359. WHEREAS, there have been allegations of loans, guarantees, or other forms of financial
accommodation granted, directly or indirectly, by government owned and controlled bank or financial
19 G.R. No. 167324, July 17, 2007, 527 SCRA 746. institutions, at the behest, command or urging by previous government officials to the disadvantage and
detriment of the Philippine government and the Filipino people;
20 G.R. No. 160093, July 31, 2007, 528 SCRA 673.
ACCORDINGLY, an "Ad-Hoc FACT FINDING COMMITTEE ON BEHEST LOANS" is hereby
21 G.R. No. 166620, April 20, 2010. created to be composed of the following:
Chairman of the Presidential
22 OSG Memorandum, p. 43.
Commission on Good Government - Chairman
23 496 Phil. 886, 896-897 (2005).
The Solicitor General - Vice-Chairman
 2. Identify the borrowers who were granted "friendly waivers", as well as the government officials who
Representative from the granted these waivers; determine the validity of these waivers;
Office of the Executive Secretary - Member
3. Determine the courses of action that the government should take to recover those loans, and to
Representative from the recommend appropriate actions to the Office of the President within sixty (60) days from the date
Department of Finance - Member hereof.

Representative from the The Committee is hereby empowered to call upon any department, bureau, office, agency,
Department of Justice - Member instrumentality or corporation of the government, or any officer or employee thereof, for such assistance
as it may need in the discharge of its function.
Representative from the
Development Bank of the Philippines - Member 29 See Footnote 28.

Representative from the 30 E.O. No. 1, Section 2 (i).

Philippine National Bank - Member
31 E.O. No. 1, Section 2 (j).
Representative from the
Asset Privatization Trust - Member 32 E.O. No. 1, Section 5.

Government Corporate Counsel - Member 33 E.O. No. 1, Section 2 (e).

Representative from the 34 E.O. No. 1. Section 9.

Philippine Export and Foreign
35 Id.
Loan Guarantee Corporation - Member
36 The Constitution, Article VI, Section 1. The legislative power shall be vested in the Congress of the
The Ad Hoc Committee shall perform the following functions: Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.
1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and
stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who 37 Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II,
influenced the grant thereof; supra note 11, at 70, 140-141, 161.
38 Emphasis supplied. 47 Id. at 348-349.

39 G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339. 48 No. L-47771, March 11, 1978, 82 SCRA 30.

40 Republic Act No. 6770, Section 15. Powers, Functions and Duties. – The Office of the Ombudsman 49 Peralta v. Commission on Elections, supra.
shall have the following powers, functions and duties:
50 Id.
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in The Lawphil Project - Arellano Law Foundation
the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases x x x. SEPARATE
DISSENTING OPINION
41 City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308.
ABAD, J.:
42 E.O. No. 1, Section 2. Powers and functions.-- The Commission, which shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is Brief Background
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-principals, As the opinion written for the majority by Justice Jose Catral Mendoza says, President Benigno Simeon
accomplices and accessories from the private sector, if any, during the previous administration x x x. Aquino III (President P-Noy to distinguish him from former President Corazon C. Aquino) campaigned
(Emphasis supplied.) on a platform of "kung walang corrupt, walang mahirap." On being elected President, he issued
Executive Order 1,1 creating the Philippine Truth Commission of 2010 that he tasked with the
43 Emphasis supplied. investigation of reported corruption during the previous administration. The Truth Commission is to
submit its findings and recommendations to the President, the Congress, and the Ombudsman.
44 Memorandum, p. 89.
Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A.
45 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, Datumanong, and Rep. Orlando B. Fua, Sr. have come to this Court to challenge the Constitutionality of
December 15, 2004, 446 SCRA 299, citing Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54. Executive Order 1.
(1974).
The Issues Presented
46 City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 348.
The parties present four issues:

1. Whether or not petitioners have legal standing to challenge the constitutionality of Executive Order 1;
2. Whether or not Executive Order 1 usurps the authority of Congress to create and appropriate funds
for public offices, agencies, and commissions;
3. Whether or not Executive Order 1 supplants the powers of the Ombudsman and the DOJ; and
4. Whether or not Executive Order 1 violates the equal protection clause in that it singles out the
previous administration for investigation.
Discussion
The majority holds that petitioners have standing before the Court; that President P-Noy has the power
to create the Truth Commission; that he has not usurped the powers of Congress to create public offices
and appropriate funds for them; and, finally, that the Truth Commission can conduct investigation
without supplanting the powers of the Ombudsman and the Department of Justice since the Commission
has not been vested with quasi-judicial powers. I fully conform to these rulings.
The majority holds, however, that Executive Order 1 violates the equal protection clause of the
Constitution. It is here that I register my dissent.
The 1987 Constitution provides in section 1 of Article III (The Bill of Rights) as follows:
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 idea behind the "equal protection clause" is that public authorities should treat all persons or things
equally in terms of rights granted to and responsibilities imposed on them. As an element of due
process, the equal protection clause bars arbitrary discrimination in favor of or against a class whether in
what the law provides and how it is enforced.
Take the comic example of a law that requires married women to wear their wedding rings at all times
to warn other men not to entice women to violate their marriage vows. Such law would be unfair and
discriminatory since married men, who are not covered by it, are exposed to similar enticements from
women other than their wives.
But it would be just as unfair and discriminatory if people who hardly share anything in common are
grouped together and treated similarly.2 The equal protection clause is not violated by a law that applies
only to persons falling within a specified class, if such law applies equally to all persons within such
class, and reasonable grounds exist for making a distinction between those who fall within it and those
who do not.3
For example, restaurant cooks and waiters cannot complain of discrimination against an ordinance that
requires them but not other workers to undergo periodic medical check-ups. Such check-ups are
important for food-handlers in the interest of public health but not for ordinary office clerks. Also, a law
that grants a 60-day paid leave to pregnant workers but not to other workers, male or female, is not
discriminatory since female workers who just had their babies need more time to care for the latter and
make adjustments for going back to work.
Here, the issue I address is whether or not President P-Noy’s decision to focus the Truth Commission’s
investigation solely on the reported corruption during the previous administration, implicitly excluding
the corruption during the administrations before it, violates the equal protection clause. Since absolute
equality in treating matters is not required, the ultimate issue in this case is whether or not the President
has reasonable grounds for making a distinction between corruptions committed in the recent past and
those committed in the remote past. As a rule, his grounds for making a distinction would be deemed
reasonable if they are germane or relevant to the purpose for which he created the Truth Commission.4
And what is the President’s purpose in creating the Truth Commission? This can be inferred from
section 1 of Executive Order 1 which states that the Commission’s primary function is to –
xxx seek and find the truth on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed
by public officials and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration, and thereafter recommend the appropriate action to be
taken thereon to ensure that the full measure of justice shall be served without fear or favor.
Evidently, the objective the President sets for the Truth Commission is the uncovering of the "truth"
regarding reported corruption in the previous administration "to ensure that the full measure of justice
[evidently upon those responsible for it] is served without fear or favor." Ultimately, the purpose of the
creation of the Truth Commission is to ensure that the corrupt officials of the previous administration
are exposed and brought to justice.
The majority holds that picking on the "previous administration" and not the others before it makes the
Commission’s investigation an "adventure in partisan hostility." To be fair, said the majority, the search
for truth must include corrupt acts not only during the previous administration but also during the
administrations before it where the "same magnitude of controversies and anomalies" has been reported.
The majority points out that corruption in the previous administration and corruption in the
administrations before it have no substantial difference. And what difference they have, the majority
adds, is not relevant to the purpose of Executive Order 1, which is to uncover corrupt acts and
recommend their punishment. Superficial difference like the difference in time in this case does not
make for a valid classification.
But time differentiation should not be so easily dismissed as superficial. The world in which people live
has two great dimensions: the dimension of space and the dimension of time. Nobody can say that the
difference in time between two acts or events makes for a superficial difference. Such difference is the
substance of human existence. As the Bible says:
There is an appointed time for everything, and a time for every affair under the heavens.
A time to be born, and a time to die;
a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal;
a time to tear down, and a time to build.
A time to weep, and a time to laugh;
a time to mourn, and a time to dance;
A time to scatter stones, and a time to gather them;
a time to embrace, and a time to be far from embraces.
A time to seek, and a time to lose;
a time to keep, and a time to cast away;
A time to rend, and a time to sew;
a time to be silent and a time to speak.
A time to love, and a time to hate;
a time of war, and a time of peace.
(Ecclesiastes 3:1-8, New American Bible)
Recognizing the irreversibility of time is indispensable to every sound decision that people make in their
lives everyday, like not combing the hair that is no longer there. In time, parents let their married
children leave to make their own homes. Also, when a loved one passes away, he who is left must know
that he cannot bring back the time that is gone. He is wise to move on with his life after some period of
mourning. To deny the truth that the difference in time makes for substantial difference in human lives
is to deny the idea of transition from growth to decay, from life to death, and from relevant to irrelevant.
Here the past presidential administrations the country has gone through in modern history cover a period
of 75 years, going back from when President Gloria Macapagal Arroyo ended her term in 2010 to the
time President Manuel L. Quezon began his term in 1935. The period could even go back 111 years if
the administration of President Emilio Aguinaldo from 1989 to 1901 is included. But, so as not to
complicate matters, the latter’s administration might just as well be excluded from this discussion.
It should be remembered that the right of the State to recover properties unlawfully acquired by public
officials does not prescribe.5 So, if the majority’s advice were to be literally adopted, the Truth
Commission’s investigation to be fair to all should go back 75 years to include the administrations of
former Presidents Arroyo, Estrada, Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay, Quirino,
Roxas, Osmena, Laurel, and Quezon.
As it happens, President P-Noy limited the Truth Commission’s investigation to the 9 years of the
previous administration. He did not include the 66 years of the 12 other administrations before it. The
question, as already stated, is whether the distinction between the recent past and the remote past makes
for a substantial difference that is relevant to the purpose of Executive Order 1.
That the distinction makes for a substantial difference is the first point in this dissent.
1. The Right to Equal Protection
Feasibility of success. Time erodes the evidence of the past. The likelihood of finding evidence needed
for conviction diminishes with the march of time. Witnesses, like everyone else, have short memories.
And they become scarce, working overseas, migrating, changing addresses, or just passing away.
Official or private documents needed as evidence are easily overwhelmed by the demand to file and
keep even more documents generated by new activities and transactions. Thus, old documents are stored
away in basements, garages, or corridors, and eventually lost track of, misplaced, or simply destroyed,
whether intentionally or not. In a government that is notorious for throwing away or mishandling old
records, searching for a piece of document after ten years would be uncertain, tedious, long, and costly.
When the government of President Marcos fell in 1986, the new government acted swiftly to sequester
suspected wealth, impound documents believed to constitute evidence of wrong-doing, and interview
witnesses who could help prosecute the Marcoses and their cronies. One would think that these actions
will ensure successful prosecution of those who committed graft and corruption in that era. Yet, after
just a decade, the prosecution has been mostly unable to find the right documents or call the right
witnesses. Today, after 24 years, the full force of government has failed to produce even one conviction.
Clearly, it would be a waste of effort and time to scour all of 66 years of the administrations before the
last, looking for evidence that would produce conviction. Time has blurred the chance of success.
Limiting the Truth Commission’s investigation to the 9 years of the previous administration gives it the
best chance of yielding the required proof needed for successful action against the offenders.
Historically, there have been no known or outstanding inquiries done by the Executive Department into
corrupt acts of the past that went beyond the term of the immediately preceding administration. It makes
sense for President P-Noy to limit the investigation to what is practical and attainable, namely, the 9
years of the previous administration. He strikes at what is here and near. Perchance, he can get a
conviction. Investigating corruption in the past 75 years rather than in the nearest 9 years, under a
nebulous claim of evenhandedness, is the key to failing altogether. It has been held that if the law
presumably hits the evil where it is felt, it is not to be overthrown because there are other instances to
which it might have been applied.6
Neutralization of Presidential bias. The Court can take judicial notice of the fact that President P-noy
openly attacked the previous administration for its alleged corruption in the course of his election
campaign. In a sense, he has developed a bias against it. Consequently, his creation of the Truth
Commission, consisting of a former Chief Justice, two former Associate Justices of the Supreme Court,
and two law professors serves to neutralize such bias and ensure fairness. The President did not have to
include the 66 years of earlier administrations for investigation since he did not specifically target them
in his election campaign.
At any rate, it does not mean that when the President created the Truth Commission, he shut the door to
the investigation of corruption committed during the 66 years before the previous one. All existing
government agencies that are charged with unearthing crimes committed by public officials are not
precluded from following up leads and uncovering corruptions committed during the earlier years.
Those corrupt officials of the remote past have not gained immunity by reason of Executive Order 1.
Matching task to size. The Truth Commission is a collegial body of just five members with no budget or
permanent staffs of its own. It simply would not have the time and resources for examining hundreds if
not thousands of anomalous government contracts that may have been entered into in the past 75 years
up to the time of President Quezon. You cannot order five men to pull a train that a thousand men
cannot move.
Good housekeeping. Directing the investigation of reported corrupt acts committed during the previous
administration is, as the Solicitor General pointed out, consistent with good housekeeping. For example,
a new treasurer would be prudent to ensure that the former treasurer he succeeds has balanced his
accounts and submitted himself to a closing audit even after the new treasurer has taken over. This
prevents the latter having to unfairly assume the liabilities of his predecessor for shortages in the cash
box. Of course, the new treasurer is not required to look farther into the accounts of the earlier
treasurers.
In like manner, it is reasonable for President P-Noy to cause the investigation of the anomalies
reportedly committed during the previous administration to which he succeeded. He has to locate
government funds that have not been accounted for. He has to stanch the bleeding that the government
could be suffering even now by reason of anomalous contracts that are still on-going. Such is a part of
good housekeeping. It does not violate the equal protection clause by its non-inclusion of the earlier
administrations in its review. The latter’s dealings is remotely relevant to good housekeeping that is
intended to manage a smooth transition from one administration to the next.
2. The President’s Judgment
as against the Court’s
That is the first point. The second point is that the Court needs to stand within the limits of its power to
review the actions of a co-equal branch, like those of the President, within the sphere of its
constitutional authority. Since, as the majority concedes, the creation of the Truth Commission is within
the constitutional powers of President P-Noy to undertake, then to him, not to the Court, belongs the
discretion to define the limits of the investigation as he deems fit. The Court cannot pit its judgment
against the judgment of the President in such matter.
And when can the Supreme Court interfere with the exercise of that discretion? The answer is, as
provided in Section 1, Article VIII of the 1987 Constitution, only when the President gravely abuses his
exercise of such discretion. This means that, in restricting the Truth Commission’s investigation only to
corruptions committed during the previous administration, he acted capriciously and whimsically or in
an arbitrary or despotic manner.7
To act capriciously and whimsically is to act freakishly, abruptly, or erratically, like laughing one
moment and crying the next without apparent reason. Does this characterize the President’s action in
this case, considering that he merely acted to set a feasible target, neutralize political bias, assign the
Commission a task suitable to its limited capacity, and observe correct housekeeping procedures? Did
he act arbitrarily in the manner of little children changing the rules of the game in the middle of the play
or despotically in the manner of a dictator? Unless he did, the Court must rein in its horses. It cannot
itself exceed the limits of its power of review under the Constitution.
Besides, the Court is not better placed than the President to make the decision he made. Unlike the
President, the Court does not have the full resources of the government available to it. It does not have
all the information and data it would need for deciding what objective is fair and viable for a five-
member body like the Truth Commission. Only when the President’s actions are plainly irrational and
arbitrary even to the man on the street can the Court step in from Mount Olympus and stop such actions.
Notably, none of those who have been reported as involved in corruption in the previous administration
have come forward to complain that the creation of the Truth Commission has violated their rights to
equal protection. If they committed no wrong, and I believe many would fall in this category, they
would probably have an interest in pushing for the convening of the Commission. On the other hand, if
they believe that the investigation unfairly threatens their liberties, they can, if subpoenaed, to testify
invoke their right to silence. As stated in the majority opinion, the findings of the Commission would
not bind them. Such findings would not diminish their right to defend themselves at the appropriate time
and forum.
For the above reasons, I join the main dissent of Justice Antonio T. Carpio.
ROBERTO A. ABAD
Associate Justice
Footnotes
1 Dated July 30, 2010.
2 Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
3 2 Cooley, Constitutional Limitations, 824-825.
4 People v. Cayat, 68 Phil. 12 (1939), citing leading American cases. SUPREME COURT
Manila
5 1987 Constitution of the Philippines, Article 11, Section 15.
EN BANC
6 Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.
G.R. No. 105907 May 24, 1993
7 Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416
FELICIANO V. AGBANLOG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, respondents.

Michael P. Moralde for petitioner.

QUIASON, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court and Section 7 of
P.D. No. 1606 as amended, of the decision of the Sandiganbayan (First Division) promulgated on June
28, 1992, which found petitioner guilty beyond reasonable doubt of Malversation of Public Funds,
penalized under paragraph 4, Article 217, of the Revised Penal Code, and sentencing him to suffer, in
the absence of mitigating and aggravating circumstances "the indeterminate penalty of, from ELEVEN
(11) years and one (1) DAY of Prision Mayor, as minimum to SIXTEEN (16) YEARS, FIVE (5)
MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as maximum, with the accessory penalties
of the law; to pay a fine in the amount of P21,940.70; to suffer the penalty of perpetual special
disqualification and to pay the costs."

The Sandiganbayan made the following findings of facts :

Feliciano Agbanlog y Vinluan was the Officer-in-Charge of the Office of the Municipal Treasurer of
Aglipay, Quirino, for the period: March 24, 1986 to May 31, 1988. When audited by COA Auditing
Examiner Marcelina P. Reyes of the Provincial Auditor's Office of Cobarroguis, Quirino, on August 4,
Republic of the Philippines
1986 for the aforesaid period of his incumbency as Acting Municipal Treasurer, Feliciano Agbanlog
was found short in his cash and accounts in the sum of P21,940.70. At the outset, the Auditors found the accused Agbanlog short in the amount of P32,950.34, broken down
in this manner:
The shortage was broken down in the following manner :
Accountability:
a. Disallowed cash item Balance shown by your
of Mr. Feliciano V. Agbanlog cash book on May 31, 1986
May 31, 1986 worded as cash certified correct by you
advance to defray various expenses and verified by us P85,186.40
which was not approved
by the Municipal Mayor P12,504.49 Credits to Accountability:
Cash and valid cash items
b. Disallowed voucher No. produced by you
101-86-04-71 dated April 18, 1986 and counted on us P52,236.06
due to under delivery of printed forms P2,900.00 —————
Shortage P32,950.34
c. Disallowed voucher No.
101-86-05-144 dated Upon the finding that P11,009.64 of this amount was chargeable to the account of former Municipal
May 31, 1986 due to Treasurer Carlos Pastor, predecessor of Municipal Treasurer Ruperto Pallaya, the said amount of
under delivery of printed P11,009.64 was deducted from the accountability of Feliciano Agbanlog. The Acting Municipal
forms P3,260.00 Treasurer was nevertheless made accountable for the shortage of P21,940.70, the amount for which he is
not charged.
d. Unaccounted collection P3,276.21
———— As regards the disbursement voucher billed as a cash advance for various expenses in the amount of
P12,504.49, Exhibit "E", this voucher was disallowed by the auditors because there was no
Total P21,940.70 appropriation for this disbursement. It is indicated in the voucher that the giving out of this money was
in the nature of a cash advance. The purpose for which the cash advance was given out was, however,
A written demand to explain the shortage and to pay the amount thereof was neither answered nor acted not clearly indicated. The particulars of payment merely states "to cash advance to defray various
upon by the accountable officer. Consequently, a Report was made by Examining Auditors Marcelina P. expenditures". Only the signature of the accused Feliciano Agbanlog may be found in the voucher. This
Reyes, Asuncion G. Tamondong and Margarita B. Eugenio to the Provincial Auditor of Quirino, indicates that the amount of P12,504.49 was given out to and received by the accused, Feliciano V.
manifesting their findings and recommending the institution of administrative and/or criminal charges Agbanlog, from Roberto E. Pallaya. Vouchers of this nature, in order to be valid, must bear the
against Acting Municipal Treasurer Feliciano Agbanlog. signature of the incumbent Municipal Mayor of Aglipay, Quirino. The signature of the then Mayor, the
Hon. Deogracias L. Prego, Sr., does not appear in the voucher. No invoice or receipt was presented to
support the disbursement.
Thus, considering the fact that the accused, Feliciano V. Agbanlog received the proceeds of the voucher,
this disbursement has, indeed, become the accountability of the accused, whose duty it was to liquidate
the same. The accused did not so liquidate. Accused's allegation that the amount of money involved was
given to him to the Municipal Mayor has not been backed up by sufficient evidence. If this amount of
money were for the Mayor's account, the Mayor should have been made to sign the voucher, or else,
there should have been accomplished some sort of evidence payment for the Mayor.
Disbursement Voucher No. 101-8604-71, dated April 18, 1986, Exhibit "F", in the amount of P3,500.00,
was partially disallowed because printed forms for which the voucher was made out was not actually
delivered but yet paid for. The accused was able to present proof of delivery only of accounting forms
valued at P600.00. Consequently, the accused was credited with the amount of P600.00. The remaining
balance of P2,900.00 was nevertheless disallowed.
Disbursement Voucher No. 101-8605-144, dated May 31, 1986, Exhibit "G" in the amount of P4,110.00
was likewise partially disallowed. The accused was able to show proof of a legitimate disbursement in
the amount of P850.00. Consequently, the accused was credited with this amount and only the sum of
P3,260.00 was disallowed.
As regards the shortage in the amount of P3,276.21, representing the accused unaccounted collections,
per Collector's Daily Statement of Collections for the period: April to May, 1986, Exhibits "H" to "M",
We find evidence showing that this amount, while turned over to the accused Feliciano Agbanlog in his
capacity as Acting Municipal Treasurer by Collectors Jane G. Domingo, Marilyn Villarta, Danilo de
Guzman, Guadalupe M. Quimpayag and Rolando Domingo, has not been accounted for, the accused
claiming that cash collections of the aforesaid collectors were never remitted to him. There is ample
proof, therefore, of the fact that the accused received these cash collections. His signatures on various
documents, Exhibits "H" to "M", "H-1", "I-1", "J-1", "K-1", "L-1" and "M-1", virtually indicate that the
accused had actually received the amounts indicated in these exhibits. We cannot believe that the
accused would sign these documents if he did not receive the amount of money corresponding thereto.
The accused's allegation, made as an afterthought, that the collectors who were supposed to turnover
their collections to him did not actually turnover their collections cannot be believed. The contention
that the collectors had instead made out vales or cash advances covering the amount of their collections,
is not supported by proof. The vale slips or cash advance papers allegedly given to the accused in lieu of
cash could not be produced by the accused.
The accused was supposed to return these vale slips to the collectors only after they made good the
borrowed amount. This lapse in evidence does not speak well of the defense herein put up by the
accused. (Rollo, pp. 30-34)
Petitioner admits the shortage of the accountable funds charged by the prosecution but claims that the
prosecution failed to show that the shortage accrued during his short stint as acting treasurer. According
to him, the audit of his funds should have been made immediately upon his assumption as Officer-in-
charge of the Office of the Treasurer in the last week of March, 1986, instead of in August, 1986. He
further claims that while there was a turn-over of the funds on June 2, 1986 when Municipal Treasurer
Ruperto Pallaya reported back for work, there was no turnover of the funds when he temporarily took
charge of the Office of the Treasurer. (Rollo, pp. 5-6)
Re : Shortage of P12,504.49
Petitioner admits that he was the one who prepared the voucher, (Exh. "E"), and who received the
amount of P12,504.49 mentioned therein. He does not deny the authenticity of his signatures appearing
thereon. No other person, other than petitioner, was involved in the preparation of the said voucher and
the receipt of the amount of P12,504.49. He only claims that the money was given to the Municipal
Mayor, who allegedly refused to sign the voucher.
Petitioner, having worked as a bookkeeper in the Treasurer's Office of Cobarroguis, Quirino, since 1979
and as Assistant Municipal Treasurer since 1982, should know that vouchers must be signed by the
claimants. If he acknowledged receipt of the money knowing that the claimant was the Municipal
Mayor, he became a party to the fraud and assumed responsibility for the consequences of his acts. The
defense did not call the Municipal Mayor to testify that he was the real claimant and that he received the
money from the petitioner.
Re : Shortage of P2,900.00
Petitioner admits that he was the one who prepared the voucher dated April 18, 1986 for the payment of
various forms in the amount of P3,500.00 (Exh. "F"). He was the one who acknowledged receipt of the
supplies mentioned in the voucher and who received the amount of P3,500.00 in payment thereof. He
even certified to the necessity and legality of the expense.
When audited, petitioner was able to show the delivery of forms valued at only P600.00. The burden
was on petitioner to explain satisfactorily the discrepancy between the voucher and the receipt of the
delivery.
Re : Shortage of P3,260.00
Out of the amount of P4,100.00 disbursed under the voucher marked as Exhibit "G", petitioner admits
having been able to support payment of only P850.00; hence the amount of P3,260.00 was disallowed.
Re :Shortage of P3,276.21
As to the shortage in the amount of P3,276.21 representing the unaccounted collections of petitioner for
the month of April and May 1986, petitioner claims that the said amount was never turned over to him.
If this was true, he should not have signed the documents marked Exhibits "H" to "M", "A-1", "Y-7",
"5-1", "K-1", "L-1" and "M-1", all acknowledging receipt of the cash collections of the various
collectors.
In all the foregoing cases of shortage, petitioner admits having prepared and collected the amounts
stated in the vouchers (Exhs. "E", "F", "G") and having signed the collectors' daily statement of
collection, which evidence his receipt of the amounts stated therein (Exhs. "H" to "M"). With such
admissions, how can petitioner now attribute the shortage of his accountable funds to his predecessor?
It is also difficult to comprehend how an earlier audit of petitioner's accountability or an audit made
upon assumption of office of the Municipal Treasurer could possible explain the shortages unearthed by
the government auditor and assist him in his defense.
The elements of malversation of public funds or property punishable under Article 217 of the Revised
Penal Code are :
a) That the offender is a public officer;.
b) That he had the custody or control of funds or property by reason of the duties of his office;.
c) That those funds or property were public funds or property for which he was accountable;.
d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence
permitted another person to take them. (II Reyes, The Revised Penal Code, p. 391 [1981 ed.])
The prosecution has established (a) that appellant received in his possession public funds; (b) that he
could not account for them and did not have them in his possession when audited; and (c) that he could
not give a satisfactory explanation or reasonable excuse for the disappearance of said funds. (Cabello v.
Sandiganbayan, 197 SCRA 94 [1991]) The prosecution is not required to present direct evidence of the
misappropriation, which may be impossible to do. (Villanueva v. Sandiganbayan, 200 SCRA 722
[1991]).
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, is a prima facie evidence that he has put such
funds or property to personal use. (Art. 217, last paragraph, Revised Penal Code as amended by R.A.
1060).
Petitioner questions as oppressive and unconstitutional the penalty imposed on him — that of eleven
years and one day of prision mayor, as minimum, to sixteen years, five months and eleven days of
reclusion temporal, as maximum.
He argues that considering the value of the peso in 1932 when the Revised Penal Code was enacted and
the value of peso today, the penalty for malversation of P21,000.00 should only be an imprisonment of
one or two years. (Rollo, pp. 10-11)
Assuming arguendo that inflation has in effect made more severe the penalty for malversing
P21,000.00, the remedy cannot come from this Court but from the Congress. The Court can intervene
and strike down a penalty as cruel, degrading or inhuman only when it has become so flagrantly
oppressive and so wholly disproportionate to the nature of the offense as to shock the moral senses.
(People v. Dionisio, 22 SCRA 1299 [1968]; People v. Estoista, 93 Phil. 647 [1953]; U.S. v.
Borromeo, 23 Phil. 279 [1912]) Considering that malversation of public funds by a public officer is a
betrayal of the public trust, We are not prepared to say that the penalty imposed on petitioner is so
disproportionate to the crime committed as to shock the moral sense.

WHEREFORE, the petition for review is DISMISSED and the decision appealed from is AFFIRMED
in toto, with costs against petitioner.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo and Melo, JJ., concur.