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113630
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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 113630 May 5, 1994
DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA, petitioners,
vs.
HON. ROBERTO C. DIOKNO, Presiding Judge, Br. 62, Regional Trial Court, Makati, Metro Manila, and
PRESIDENTIAL ANTI-CRIME COMMISSION, respondents.
BELLOSILLO, J.:
On balance at the fulcrum once again are the intrinsic right of the State to prosecute perceived transgressors of the
law, which can be regulated, and the innate value of human liberty, which can hardly be weighed.
Some twelve years ago we were confronted with a similar problem when former Senator Jovito R. Salonga invoked
before this Court his "right to life and liberty guaranteed by the due process clause, alleging that no prima facie case
has been established to warrant the filing of an information for subversion against him."1 We resolved the issue then
and sustained him. He is now back before us, this time as counsel pleading the cause of petitioners herein who, he
claims, are in a situation far worse than his predicament twelve (12) years ago. He postulates that no probable
cause likewise exists in this case, and what is worse is that no bail is recommended.
This petition gives us an opportunity to revisit the concept and implication of probable cause, the existence of which
is necessary for the prosecutor to have an accused held for trial and for a trial judge to issue a warrant for his arrest.
It is mandatory therefore that there be probable cause before an information is filed and a warrant of arrest issued.
Unfortunately, however, at times a criminal case is filed, a warrant of arrest issued and a person consequently
incarcerated on unsubstantiated allegations that only feign probable cause.
Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the College of Law, University of the
Philippines, are partners of the Law Firm of Salonga, Hernandez and Allado. In the practice of their profession, and
on the basis of an alleged extrajudicial confession of a security guard, they have been accused of the heinous crime
of kidnapping with murder by the Presidential Anti-Crime Commission (PACC) and ordered arrested without bail by
respondent judge.
The focal source of the information against petitioners is the sworn statement dated 16 September 1993 of Security
Guard Escolastico Umbal, a discharge of the Philippine Constabulary, implicating them as the brains behind the
alleged kidnapping and slaying of one Eugen Alexander Van Twest, a German national. 2 In that extrajudicial
confession, Umbal claimed that he and his companions were met by petitioners at Silahis Hotel and in exchange for
P2.5M the former undertook to apprehend Van Twest who allegedly had an international warrant of arrest against
him. Thus, on 16 June 1992, after placing him under surveillance for nearly a month, Umbal, Ex-policeman Rolando
Gamatero, AFPCIG Agent Roberto Santiago and SPO2 Sergio Antonino abducted Van Twest. They blocked his blue
Nissan Pathfinder under the Alabang overpass and forced him into their car. They brought him to a "safe house" just
behind the New Bilibid Prisons. Umbal was tasked to watch over their quarry. After four (4) days, Gamatero,
Santiago and Antonino returned to the "safe house" together with petitioners and SPO2 Roger Bato, known to
Umbal also as "Batok." SPO2 Bato faked the interrogation of Van Twest, pretending it was official, and then made
him sign certain documents. The following day, Gamatero shot Van Twest in the chest with a baby armalite, after
which Antonino stabbed him repeatedly, cut off his private part, and later burned his cadaver into fine ashes using
gasoline and rubber tires. Umbal could not recall the exact date when the incident happened, but he was certain it
was about a year ago.
A day after Umbal executed his extrajudicial confession, the operatives of the PACC, armed with a search warrant
issued by Judge Roberto A. Barrios of the Regional Trial Court of Manila, Br. 11, 3 separately raided the two (2)
dwellings of Santiago, one located at No. 7 Sangley Street, and the other, along Amalingan Street, both in Green
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Heights Subdivision, Parañaque. The raiders recovered a blue Nissan Pathfinder and assorted firearms and
ammunition and placed Santiago and his trusted aide, Efren Madolid, under arrest. Also arrested later that day were
Antonio and Bato who were found to have in their possession several firearms and ammunition and Van Twest's
Cartier sunglasses.
After evaluating the pieces of evidence gathered by PACC operatives, Sr., Supt. Panfilo Lacson, Chief of PACC Task
Force Habagat, referred the case to the Department of Justice for the institution of criminal proceedings against
AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2 Roger Bato, Ex-policeman Rolando Gamatero,
Efren Madolid, and petitioners herein, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, for illegal
possession of firearms and ammunition, carnapping, kidnapping for ransom with murder, and usurpation of authority.
4
In his letter to the State Prosecutor dated 17 September 1993, Sr. Supt. Lacson charged that —
Atty. Roberto L. Mendoza and Atty. Allado of Salonga, Hernandez and Allado Law Offices . . . planned
and conspired with other suspects to abduct and kill the German national Alexander Van Twest in order
to eliminate him after forcing the victim to sign several documents transferring ownership of several
properties amounting to several million pesos and caused the withdrawal of P5M deposit from the
victim's bank account.
Thereafter, Senior State Prosecutor Ferdinand prosecutor Ferdinand R. Abesamis issued a subpoena to petitioners
informing them that a complaint
was filed against them by PACC TF-Habagat, directing them to appear on
30 September 1993 at the Multi-Purpose Hall of the Department of Justice and to submit their counter-affidavits.
Attached to the subpoena were copies of the affidavits executed by Umbal and members of the team who raided the
two (2) dwellings of Santiago. 5
Not satisfied merely with the affidavits attached to the subpoena, petitioner Mendoza moved for the production of
other documents for examination and copying to enable him to fully prepare for his defense and to submit an
intelligible counter-affidavit. 6 Specifically, petitioner Mendoza was interested in (a) the "several documents
transferring ownership of several properties amounting to several million pesos and the withdrawal of P5M deposits
from the victim's bank account," as stated in the complaint; (b) the complete records of the PACC's investigation,
including investigations on other suspects and their disposition, PACC's Order of Battle for 1992 and early 1993;
and, (c) such other written statements issued in the above-entitled case, and all other documents intended to be
used in this case. 7 Petitioners likewise sought the inhibition of the members of the panel of prosecutors, which was
created to conduct the preliminary investigation, on the ground that they were members of the legal staff assigned to
PACC and thus could not act with impartiality.
In its Order of 11 October 1993,8 the new panel of prosecutors composed of Senior State Prosecutor Bernelito R.
Fernandez as Chairman, with Rogelio F. Vista and Purita M. Deynata as Members, confirmed that the motion for
inhibition of the members of the old panel as well as the appeal to the Secretary of Justice was resolved on 8
October 1993 resulting in the creation of a new panel. Thereafter, the new panel granted the prayer of petitioner
Mendoza for the production of additional documents used or intended to be used against him. Meanwhile, Task
Force Habagat, in compliance with the order, submitted only copies of the request for verification of the firearms
seized from the accused, the result of the request for verification, and a Philippine Times Journal article on the case
with a marginal note of President Fidel V. Ramos addressed to the Chief of the Philippine National Police directing
the submission of a report and summary of actions taken thereon.
Not having been provided with the requested documents, petitioners nevertheless submitted their respective
counter-affidavits denying the accusations against them.9
After a preliminary hearing where clarificatory questions were additionally propounded, the case was deemed
submitted for resolution. But before the new panel could resolve the case, SPO2 Bato filed a manifestation stating
that he was reconsidering the earlier waiver of his right to file counter- affidavit, 10 and "in the greater interest of
truth, justice and fair play" moved for the admissions of his counter-affidavit 11 confessing participation in the
abduction and slaying of Van Twest and implicating petitioners Allado and Mendoza. Sometime in January 1994,
however, before petitioners could refute Bato's counter-affidavit, he moved to suppress it on the ground that it was
extracted through intimidation and duress.
On 3 February 1994, with the new penal failing to act on the twin motions of SPO2 Bato, petitioners heard over the
radio that the panel had issued a resolution finding a prima facie case against them and that an information had
already been filed in court. Upon verification with the Department of Justice, however, petitioners were informed that
the resolution was not yet ready for release, but later that afternoon they were able to secure a copy of the
information for kidnapping with murder against them 12 and the 15-page undated resolution under the letterhead of
PACC, signed by the panel of prosecutors, with the Head of the PACC Task Force recommending approval thereof.
13
That same day, the information was filed before the Regional Trial Court of Makati and raffled off to Branch 62
presided by respondent Judge Roberto C. Diokno.
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On 4 February 1994, respondent judge, in response to petitioners' request, gave them until 8 February 1994 to
submit their opposition to the issuance of a warrant of arrest against all the accused. 14 On 7 February 1994,
petitioners complied with the order of respondent judge. 15 The following day,
8 February 1994, petitioner Allado filed an appeal with the Secretary of Justice seeking review and reversal of the
undated resolution of the panel
of prosecutors, 16 which appeal was adopted by petitioner Mendoza. 17 On
11 February 1994, petitioner Allado moved to defer the proceedings before the trial court pending resolution of his
appeal before the Secretary of Justice. 18 However, on even date, respondent judge issued the assailed warrant of
arrest against petitioners. 19 Hence, on 15 February 1994, petitioners filed with us the instant petition for certiorari
and prohibition with prayer for a temporary restraining order.
On 16 February 1994, we required respondents to comment on the petition and set the case for hearing on 28
February 1994. After the hearing, we issued a temporary restraining order enjoining PACC from enforcing the
warrant of arrest and respondent judge from conducting further proceedings on the case and, instead, to elevate the
records to us. Meanwhile, on 27 February 1994, petitioners voluntarily surrendered at the Headquarters of the
Capital Command (CAPCOM), Philippine National Police (PNP), Camp Bagong Diwa, Bicutan, Metro Manila, and
on 29 February 1994, they were released on the basis of our temporary restraining order.
Petitioners, in their 335-page petition, inclusive of annexes, principally contend that respondent judge acted with
grave abuse of discretion and in excess of jurisdiction in "whimsically holding that there is probable cause against
petitioners without determining the admissibility of the evidence against petitioners and without even stating the
basis of his findings," 20 and in "relying on the Resolution of the Panel and their certification that probable cause
exists when the certification is flawed." 21 Petitioners maintain that the records of the preliminary investigation which
respondent judge solely relied upon failed to establish probable cause against them to justify the issuance of the
warrant of arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and impartiality (sic)." 22
On the other hand, the Office of the Solicitor General argues that the determination of probable cause is a function
of the judge who is merely required to personally appreciate certain facts to convince him that the accused probably
committed the crime charged.
Section 2, Art. III, of the 1987 Constitution, lays down the requirements for the issuance of a warrant of arrest, i.e., a
warrant of arrest shall issue only upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce.
As early as 1915, in Buchanan v. Viuda de Esteban, 23 this Court speaking through Associate Justice Sherman
Moreland defined probable cause as "the existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted." This definition is still relevant today as we continue to cite it in recent cases.
24
Hence, probable cause for an arrest or for the issuance of a warrant of arrest has been defined as such facts and
circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested. 25 And as a protection against false prosecution and arrest, it is the
knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he was lawful
grounds for arresting the accused. 26
Pilapil v. Sandiganbayan 27 sets a standard for determining the existence of probable cause. While it appears in that
case that we have granted the prosecutor and the trial judge seemingly unlimited latitude in determining the
existence of absence of probable cause by affirming the long-standing procedure that they can base their findings
merely on their personal opinion and reasonable belief, yet, this permissiveness should not be interpreted as giving
them arbitrary powers and letting them loose in the determination of the existence of probable cause, a delicate
legal question which can result in the harassment and deprivation of liberty of the person sought to be charged or
arrested. There we said —
Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such
a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence
to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean
"actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is it believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of
the prosecution in support of the charge.
Whether an act was done causing undue injury to the government and whether the same was done
with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony.
Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof. 28
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Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted
there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty
thereof. In the Order of respondent judge dated 11 February 1994, it is expressly stated that "[t]his court after careful
evaluation of the evidence on record, believes and rules that probable cause exists; and therefore, a warrant of
arrest should be issued." However, we are unable to see how respondent judge arrived at such ruling. We have
painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a
number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against
petitioners.
The Presidential Anti-Crime Commission relies heavily on the sworn statement of Security Guard Umbal who
supposedly confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is serious
doubt on Van Twest's reported death since the corpus delicti has not been established, nor have his remains been
recovered. Umbal claims that Van Twest was completely burned into ashes with the use of gasoline and rubber tires
from around ten o'clock in the evening to six o'clock the next morning. 29 This is highly improbable, if not ridiculous.
A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an
open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. 30
Thereafter, the remains undergo a process where the bones are completely ground to dust.
In the case of Van Twest, there is not even any insinuation that earnest efforts were exerted to recover traces of his
remains from the scene of the alleged cremation. 31 Could it be that the government investigators did to the place of
cremation but could not find any? Or could it be that they did not go at all because they knew that there would not be
any as no burning ever took place? To allege then that the body of Van Twest was completely burned to ashes in an
open field with the use merely of tires and gasoline is a tale too tall to gulp.
Strangely, if not awkwardly, after Van Twest's reported abduction on
16 June 1992 which culminated in his decimation by cremation, his counsel continued to represent him before
judicial and quasi-judicial proceedings. Thus on 31 July 1992, his counsel filed in his behalf a petition for review
before this Court, docketed as G.R. Nos. 106253, and on 18 March 1993, a memorandum before the Securities and
Exchange Commission in SEC Case No. 3896. On
26 November 1993, during the preliminary investigation conducted by the panel of prosecutors, counsel again
manifested that "even then and even as of this time, I stated in my counter-affidavit that until the matter of death is to
be established in the proper proceedings, I shall continue to pursue my duties and responsibilities as counsel for Mr.
Van Twest." 32 Hence, even Asst. Solicitor General Estoesta believes that counsel of Van Twest doubted the latter's
death. 33 Obviously, counsel himself does not believe that his client is in fact already dead otherwise his obligation to
his client would have ceased except to comply with his duty "to inform the court promptly of such death . . . and to
give the name and residence of his executor, administrator, guardian or other legal representative," 34 which he did
not.
Under the circumstances, we cannot discount petitioners' theory that the supposed death of Van Twest who is
reportedly an international fugitive from justice, a fact substantiated by petitioners and never refuted by PACC, is a
likely story to stop the international manhunt for his arrest. In this regard, we are reminded of the leading case of
U.S. v. Samarin 35 decided ninety-two years ago where this Court ruled that when the supposed victim is wholly
unknown, his body not found, and there is but one witness who testifies to the killing, the corpus delicti is not
sufficiently proved.
Then, the extrajudicial statement of Umbal suffers from material inconsistencies. In his sworn statement, he said
that he together with his cohorts was met by petitioners in Silahis Hotel where they hatched the plan to abduct Van
Twest. 36 However, during the preliminary investigation, he stated that he was not part of the actual meeting as he
only waited outside in the car for his companions who supposedly discussed the plan inside Silahis Hotel. 37
Umbal also said that petitioners arrived with Bato and conducted a mock interrogation of Van Twest who thereafter
signed various documents upon being compelled to do so. 38 During the clarificatory questioning, however, Umbal
changed his story and said that he was asked to go outside of the "safe house" at the time Van Twest was
interrogated and thus did not see if Van Twest indeed signed certain documents. Why Umbal had to be sent out of
the "safe house,"
no explanation was offered. Did these documents really exist? Or could the
non-existence of these documents be the reason why PACC was not able to comply with the order of the
prosecutors to produce them during the preliminary investigation? And then, what happened to the P2.5M that was
supposedly offered by petitioners in exchange for the abduction of Van Twest? These and more remain
unanswered.
Most perplexing however is that while the whole investigation was supposedly triggered off by Umbal's confession of
16 September 1993, the application of the PACC operatives for a search warrant to be served in the
two (2) dwellings of Santiago was filed and granted by the Regional Trial Court of Manila on 15 September 1993, a
day before Umbal executed his sworn statement. In support of the application, the PACC agents claimed that Umbal
had been in their custody since 10 September 1993. Significantly, although he was said to be already under their
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custody, Umbal claims he was never interrogated until 16 September 1993 and only at the security barracks of Valle
Verde V, Pasig, where he was a security guard. 39
The alleged counter-affidavit of SPO2 Bato, which the panel of prosecutors also considered in filing the charges
against petitioners, can hardly be credited as its probative value has tremendously waned. The records show that
the alleged counter-affidavit, which is self-incriminating, was filed after the panel had considered the case submitted
for resolution. And before petitioners could refute this counter-affidavit, Bato moved to suppress the same on the
ground that it was extracted through duress and intimidation.
For sure, the credibility of Umbal is badly battered. Certainly, his bare allegations, even if the State invokes its
inherent right to prosecute, are insufficient to justify sending two lawyers to jail, or anybody for that matter. More
importantly, the PACC operatives who applied for a warrant to search the dwellings of Santiago never implicated
petitioners. In fact they claimed that according to Umbal, it was Santiago, and not petitioners, who masterminded the
whole affair. 40 While there may be bits of evidence against petitioners'
co-accused, i.e., referring to those seized from the dwellings of Santiago, these do not in the least prove petitioners'
complicity in the crime charged. Based on the evidence thus far submitted there is nothing indeed, much less is
there probable cause, to incriminate petitioners. For them to stand trial and be deprived in the meantime of their
liberty, however brief, the law appropriately exacts much more to sustain a warrant for their arrest — facts and
circumstances strong enough in themselves to support the belief that they are guilty of a crime that in fact
happened. Quite obviously, this has not been met.
Verily, respondent judge committed grave abuse of discretion in issuing the warrant for the arrest of petitioners it
appearing that he did not personally examine the evidence nor did he call for the complainant and his witnesses in
the face of their incredible accounts. Instead, he merely relied on the certification of the prosecutors that probable
cause existed. For, otherwise, he would have found out that the evidence thus far presented was utterly insufficient
to warrant the arrest of petitioners. In this regard, we restate the procedure we outlined in various cases we have
already decided.
In Soliven v. Makasiar, 41 we said that the judge (a) shall personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of
probable cause.
In People v. Inting, 42 we emphasized the important features of the constitutional mandate: (a) The determination of
probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge
and the judge alone makes this determination; (b) The preliminary inquiry made by a prosecutor does not bind the
judge. It merely assists him in making the determination of probable cause. The judge does not have to follow what
the prosecutor presents to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the
report, the affidavits, the transcript of stenographic notes (if any), and all other supporting documents behind the
prosecutor's certification which are material in assisting the judge in his determination of probable cause; and, (c)
Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender
should be held for trial or released. Even if the two inquiries be conducted in the course of one and the same
proceeding, there should be no confusion about their objectives. The determination of probable cause for the
warrant is made by the judge. The preliminary investigation
proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and
therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial — is a function
of the prosecutor.
In Lim v. Felix, 43 where we reiterated Soliven v. Makasiar and People v. Inting, we said —
[T]he Judge does not have to personally examine the complainant and his witnesses. The Prosecutor
can perform the same functions as a commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the Fiscal's bare certification. All these should
be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's
examination should be. The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the
circumstances of each case require. To be sure, the judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case so
require.
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Clearly, probable cause may not be established simply by showing that a trial judge subjectively believes that he has
good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional
protection would be demeaned and the people would be "secure in their persons, houses, papers and effects" only
in the fallible discretion of the judge.44 On the contrary, the probable cause test is an objective one, for in order that
there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has just been committed. 45 This, as we said,
is the standard. Hence, if upon the filing of the information in court the trial judge, after reviewing the information and
the documents attached thereto, finds that no probable cause exists must either call for the complainant and the
witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further
expose him to an open and public accusation of the crime when no probable cause exists.
But then, it appears in the instant case that the prosecutors have similarly misappropriated, if not abused, their
discretion. If they really believed that petitioners were probably guilty, they should have armed themselves with facts
and circumstances in support of that belief; for mere belief is not enough. They should have presented sufficient and
credible evidence to demonstrate the existence of probable cause. For the prosecuting officer "is the representative
not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor —
indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one" 46
In the case at bench, the undue haste in the filing of the information and the inordinate interest of the government
cannot be ignored. From the gathering of evidence until the termination of the preliminary investigation, it appears
that the state prosecutors were overly eager to file the case and secure a warrant for the arrest of the accused
without bail and their consequent detention. Umbal's sworn statement is laden with inconsistencies and
improbabilities. Bato's counter-affidavit was considered without giving petitioners the opportunity to refute the same.
The PACC which gathered the evidence appears to have had a hand in the determination of probable cause in the
preliminary inquiry as the undated resolution of the panel not only bears the letterhead of PACC but was also
recommended for approval by the head of the PACC Task Force. Then petitioners were given the runaround in
securing a copy of the resolution and the information against them.
Indeed, the task of ridding society of criminals and misfits and sending them to jail in the hope that they will in the
future reform and be productive members of the community rests both on the judiciousness of judges and the
prudence of prosecutors. And, whether it is a preliminary investigation by the prosecutor, which ascertains if the
respondent should be held for trial, or a preliminary inquiry by the trial judge which determines if an arrest warrant
should issue, the bottomline is that there is a standard in the determination of the existence of probable cause, i.e.,
there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to
believe that the accused is guilty of the crime with which he is charged. Judges and prosecutors are not off on a
frolic of their own, but rather engaged in a delicate legal duty defined by law and jurisprudence.
In this instance, Salonga v. Paño 47 finds application —
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trial (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to transgress constitutional due process
(People v. Oandasa, 25 SCRA 277). However, in order to satisfy the due process clause it is not
enough that the preliminary investigation is conducted in the sense of making sure that the
transgressor shall not escape with impunity. A preliminary investigation serves not only for the purposes
of the State. More importantly, it is a part of the guarantees of freedom and fair play which are
birthrights of all who live in the country. It is therefore imperative upon the fiscal or the judge as the
case may be, to relieve the accused from the pain of going thru a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused (emphasis supplied).
The facts of this case are fatefully distressing as they showcase the seeming immensity of government power which
when unchecked becomes tyrannical and oppressive. Hence the Constitution, particularly the Bill of Rights, defines
the limits beyond which lie unsanctioned state actions. But on occasion, for one reason or another, the State
transcends this parameter. In consequence, individual liberty unnecessarily suffers. The case before us, if uncurbed,
can be illustrative of a dismal trend. Needless injury of the sort inflicted by government agents is not reflective of
responsible government. Judges and law enforcers are not, by reason of their high and prestigious office, relieved of
the common obligation to avoid deliberately inflicting unnecessary injury.
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The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the
proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is
essential for its self- preservation, nay, its very existence. But this does not confer a license for pointless assaults on
its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard
the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for
reckless and impulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which
requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the
crime committed and the circumstances attending the incident, still we cannot see probable cause to order the
detention of petitioners.48

The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power.
This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security
against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights,
the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other,
the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of
criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong
arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. 49

Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the dictates
of government. They would have been illegally arrested and detained without bail. Then we would not have the
opportunity to rectify the injustice. Fortunately, the victims of injustice are lawyers who are vigilant of their rights, who
fight for their liberty and freedom not otherwise available to those who cower in fear and subjection.

Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the
enforcement of the law that in the performance of their duties they must act with circumspection, lest their
thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are
sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent
in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we
greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate
constitutional precepts which circumscribe the structure of a civilized community.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The temporary restraining order we issued on
28 February 1994 in favor of petitioners, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, is made
permanent. The warrant of arrest issued against them is SET ASIDE and respondent Judge Roberto C. Diokno is
ENJOINED from proceeding any further against herein petitioners in Crim. Case No. 94-1757 of the Regional Trial
Court of Makati.

SO ORDERED

Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

#Footnotes

1 Salonga v. Paño, G.R. No. 59524, 18 February 1985, 134 SCRA 438, 443.

2 Rollo, pp. 52-54.

3 Id., pp. 55-56.

4 Id., pp. 40-42.

5 Id., pp. 43-45.

6 Id., pp. 60-63.

7 Motion for Production of Documents, alternatively, for Subpoena Duces Tecum, pp. 3-4.

8 Rollo, pp. 64-65.

9 Id., pp. 69-88; 166-181.

10 Id., pp. 252-253.

11 Id., pp. 254-261.

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2/1/24, 7:45 PM G.R. No. 202666
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus
each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy
with the desire for disclosure and communication of himself to others, in light of the environmental conditions and
social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section 19 of A.M.
No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27,
2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which
dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period material,
graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with several
others, took digital pictures of themselves clad only in their undergarments. These pictures were then uploaded by
Angela Lindsay Tan (Angela) on her Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school department,
learned from her students that some seniors at STC posted pictures online, depicting themselves from the waist up,
dressed only in brassieres. Escudero then asked her students if they knew who the girls in the photos are. In turn,
they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and showed
her photos of the identified students, which include: (a) Julia and Julienne drinking hard liquor and smoking
cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles of clothing that show
virtually the entirety of their black brassieres. What is more, Escudero’s students claimed that there were times
when access to or the availability of the identified students’ photos was not confined to the girls’ Facebook friends,4
but were, in fact, viewable by any Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed the
photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an
investigation, STC found the identified students to have deported themselves in a manner proscribed by the school’s
Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
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3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages,
language or symbols; and 6. Posing and uploading pictures on the Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as required,
to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and ICM6 Directress. They
claimed that during the meeting, they were castigated and verbally abused by the STC officials present in the
conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr.
Purisima informed their parents the following day that, as part of their penalty, they are barred from joining the
commencement exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a Petition for
Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-38594.7
In it, Tan prayed that defendants therein be enjoined from implementing the sanction that precluded Angela from
joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an intervenor. On
March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum, containing printed copies of the
photographs in issue as annexes. That same day, the RTC issued a temporary restraining order (TRO) allowing the
students to attend the graduation ceremony, to which STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from participating in the
graduation rites, arguing that, on the date of the commencement exercises, its adverted motion for reconsideration
on the issuance ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed as SP.
Proc. No. 19251-CEB8 on the basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they changed
into their swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They, thus, have a
reasonable expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or ought to have known of laws that safeguard
the right to privacy. Corollarily, respondents knew or ought to have known that the girls, whose privacy has
been invaded, are the victims in this case, and not the offenders. Worse, after viewing the photos, the minors
were called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their consent.
Escudero, however, violated their rights by saving digital copies of the photos and by subsequently showing
them to STC’s officials. Thus, the Facebook accounts of petitioners’ children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images
happened at STC’s Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by respondents through their
memorandum submitted to the RTC in connection with Civil Case No. CEB-38594. To petitioners, the
interplay of the foregoing constitutes an invasion of their children’s privacy and, thus, prayed that: (a) a writ of
habeas databe issued; (b) respondents be ordered to surrender and deposit with the court all soft and printed
copies of the subjectdata before or at the preliminary hearing; and (c) after trial, judgment be rendered
declaring all information, data, and digital images accessed, saved or stored, reproduced, spread and used,
to have been illegally obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued the writ
of habeas data. Through the same Order, herein respondents were directed to file their verified written return,
together with the supporting affidavits, within five (5) working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified written return, laying down the
following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties to file the petition; (b)
petitioners are engaging in forum shopping; (c) the instant case is not one where a writ of habeas data may
issue;and (d) there can be no violation of their right to privacy as there is no reasonable expectation of privacy on
Facebook.
Ruling of the Regional Trial Court
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On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive portion of
the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the minors’ right to
privacy, one of the preconditions for the issuance of the writ of habeas data. Moreover, the court a quoheld that the
photos, having been uploaded on Facebook without restrictions as to who may view them, lost their privacy in some
way. Besides, the RTC noted, STC gathered the photographs through legal means and for a legal purpose, that is,
the implementation of the school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule on
Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be issued given the
factual milieu. Crucial in resolving the controversy, however, is the pivotal point of whether or not there was indeed
an actual or threatened violation of the right to privacy in the life, liberty, or security of the minors involved in this
case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party.11 It is an independent and summary remedy designed to protect the image,
privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right
to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order to achieve
unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational privacy, among
others. A comparative law scholar has, in fact, defined habeas dataas "a procedure designed to safeguard individual
freedom from abuse in the information age."13 The writ, however, will not issue on the basis merely of an alleged
unauthorized access to information about a person.Availment of the writ requires the existence of a nexus between
the right to privacy on the one hand, and the right to life, liberty or security on the other.14 Thus, the existence of a
person’s right to informational privacy and a showing, at least by substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or security of the victim are indispensable before the privilege of the writ
may be extended.15
Without an actionable entitlement in the first place to the right to informational privacy, a habeas datapetition will not
prosper. Viewed from the perspective of the case at bar,this requisite begs this question: given the nature of an
online social network (OSN)––(1) that it facilitates and promotes real-time interaction among millions, if not billions,
of users, sans the spatial barriers,16 bridging the gap created by physical space; and (2) that any information
uploaded in OSNs leavesan indelible trace in the provider’s databases, which are outside the control of the end-
users––is there a right to informational privacy in OSN activities of its users? Before addressing this point, We must
first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose of
complementing the Writ of Amparoin cases of extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in cases of
extralegal killings and enforced disappearances, the petition may be filed by:
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(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degreeof
consanguinity or affinity, in default of those mentioned in the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings or
enforced disappearances, the above underscored portion of Section 2, reflecting a variance of habeas data
situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information age."17 As
such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances only. In fact, the
annotations to the Rule preparedby the Committee on the Revision of the Rules of Court, after explaining that the
Writ of Habeas Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to privacy,
more specifically the right to informational privacy. The remedies against the violation of such right can include the
updating, rectification, suppression or destruction of the database or information or files in possession or in control
of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ of Habeas Datamay also be availed of in
cases outside of extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the
aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against abuses
of a person or entity engaged in the businessof gathering, storing, and collecting of data. As provided under Section
1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a
protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her
family. Such individual or entity need not be in the business of collecting or storing data.
To "engage" in something is different from undertaking a business endeavour. To "engage" means "to do or take part
in something."19 It does not necessarily mean that the activity must be done in pursuit of a business. What matters is
that the person or entity must be gathering, collecting or storing said data or information about the aggrieved party
or his or her family. Whether such undertaking carries the element of regularity, as when one pursues a business,
and is in the nature of a personal endeavour, for any other reason or even for no reason at all, is immaterial and
such will not prevent the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very small group,
i.e., private persons and entities whose business is data gathering and storage, and in the process decreasing the
effectiveness of the writ asan instrument designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technology––a right which a great majority of the users of
technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological advancements having an influential part
therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common Right
to Privacy,20 where he explained the three strands of the right to privacy, viz: (1) locational or situational privacy;21
(2) informational privacy; and (3) decisional privacy.22 Of the three, what is relevant to the case at bar is the right to
informational privacy––usually defined as the right of individuals to control information about themselves.23
With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each
system’s inherent vulnerability to attacks and intrusions, there is more reason that every individual’s right to control
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said flow of information should be protected and that each individual should have at least a reasonable expectation
of privacy in cyberspace. Several commentators regarding privacy and social networking sites, however, all agree
that given the millions of OSN users, "[i]n this [Social Networking] environment, privacy is no longer grounded in
reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would allow a
summary hearing of the unlawful use of data or information and to remedy possible violations of the right to
privacy.25 In the same vein, the South African High Court, in its Decision in the landmark case, H v. W,26 promulgated
on January30, 2013, recognized that "[t]he law has to take into account the changing realities not only
technologically but also socially or else it will lose credibility in the eyes of the people. x x x It is imperative that the
courts respond appropriately to changing times, acting cautiously and with wisdom." Consistent with this, the Court,
by developing what may be viewed as the Philippine model of the writ of habeas data, in effect, recognized that,
generally speaking, having an expectation of informational privacy is not necessarily incompatible with engaging in
cyberspace activities, including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind that
informational privacy involves personal information. At the same time, the very purpose of OSNs is socializing––
sharing a myriad of information,27 some of which would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other
members of the same or different social media platform through the sharing of statuses, photos, videos, among
others, depending on the services provided by the site. It is akin to having a room filled with millions of personal
bulletin boards or "walls," the contents of which are under the control of each and every user. In his or her bulletin
board, a user/owner can post anything––from text, to pictures, to music and videos––access to which would depend
on whether he or she allows one, some or all of the other users to see his or her posts. Since gaining popularity, the
OSN phenomenon has paved the way to the creation of various social networking sites, includingthe one involved in
the case at bar, www.facebook.com (Facebook), which, according to its developers, people use "to stay connected
with friends and family, to discover what’s going on in the world, and to share and express what matters to them."28
Facebook connections are established through the process of "friending" another user. By sending a "friend
request," the user invites another to connect their accounts so that they can view any and all "Public" and "Friends
Only" posts of the other.Once the request is accepted, the link is established and both users are permitted to view
the other user’s "Public" or "Friends Only" posts, among others. "Friending," therefore, allows the user to form or
maintain one-to-one relationships with other users, whereby the user gives his or her "Facebook friend" access to
his or her profile and shares certain information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with different privacy
tools designed to regulate the accessibility of a user’s profile31 as well as information uploaded by the user. In H v.
W,32 the South Gauteng High Court recognized this ability of the users to "customize their privacy settings," but did
so with this caveat: "Facebook states in its policies that, although it makes every effort to protect a user’s
information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos), posted on his or
her personal bulletin or "wall," except for the user’sprofile picture and ID, by selecting his or her desired privacy
setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the
visibility of his or her specific profile content, statuses, and photos, among others, from another user’s point of view.
In other words, Facebook extends its users an avenue to make the availability of their Facebook activities reflect
their choice as to "when and to what extent to disclose facts about [themselves] – and to put others in the position of
receiving such confidences."34 Ideally, the selected setting will be based on one’s desire to interact with others,
coupled with the opposing need to withhold certain information as well as to regulate the spreading of his or her
personal information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can
view that user’s particular post.
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STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no reasonable expectation of privacy in
Facebook would, in context, be correct. However, such is not the case. It is through the availability of said privacy
tools that many OSN users are said to have a subjective expectation that only those to whomthey grant access to
their profile will view the information they post or upload thereto.35
This, however, does not mean thatany Facebook user automatically has a protected expectation of privacy inall of
his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this
case the children of petitioners,manifest the intention to keepcertain posts private, through the employment of
measures to prevent access thereto or to limit its visibility.36 And this intention can materialize in cyberspace through
the utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools is the manifestation,in
cyber world, of the user’s invocation of his or her right to informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post
orprofile detail should not be denied the informational privacy right which necessarily accompanies said choice.38
Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a photo
or any personal information to his or her Facebook page and sets its privacy level at "Only Me" or a custom list so
that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the user
never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these privacy
tools of their function but it would also disregard the very intention of the user to keep said photo or information
within the confines of his or her private space.
We must now determine the extent that the images in question were visible to other Facebook users and whether
the disclosure was confidential in nature. In other words, did the minors limit the disclosure of the photos such that
the images were kept within their zones of privacy? This determination is necessary in resolving the issue of
whether the minors carved out a zone of privacy when the photos were uploaded to Facebook so that the images
will be protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being violated, insist that Escudero intruded
upon their children’s Facebook accounts, downloaded copies ofthe pictures and showed said photos to Tigol. To
them, this was a breach of the minors’ privacy since their Facebook accounts, allegedly, were under "very private" or
"Only Friends" setting safeguarded with a password.39 Ultimately, they posit that their children’s disclosure was only
limited since their profiles were not open to public viewing. Therefore, according to them, people who are not their
Facebook friends, including respondents, are barred from accessing said post without their knowledge and consent.
Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which were only viewable by the five
of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of girls cladin
brassieres. This student [sic] of mine informed me that these are senior high school [students] of STC, who are their
friends in [F]acebook. x x x They then said [that] there are still many other photos posted on the Facebook accounts
of these girls. At the computer lab, these students then logged into their Facebook account [sic], and accessed from
there the various photographs x x x. They even told me that there had been times when these photos were ‘public’
i.e., not confined to their friends in Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to question the
students’ act of showing the photos to Tigol disproves their allegation that the photos were viewable only by the five
of them. Without any evidence to corroborate their statement that the images were visible only to the five of them,
and without their challenging Escudero’s claim that the other students were able to view the photos, their statements
are, at best, self-serving, thus deserving scant consideration.42
It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who are the
minors’ Facebook "friends," showed her the photos using their own Facebook accounts. This only goes to show that
no special means to be able to viewthe allegedly private posts were ever resorted to by Escudero’s students,43 and
that it is reasonable to assume, therefore, that the photos were, in reality, viewable either by (1) their Facebook
friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised that the photographs in
question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively limited the
disclosure of the photograph. If suchwere the case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to
such imagery, particularly under circumstances suchas here, where the Defendant did not employ protective
measures or devices that would have controlled access to the Web page or the photograph itself.45
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Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less privacy one can
reasonably expect. Messages sent to the public at large inthe chat room or e-mail that is forwarded from
correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention. In this regard,
the cyber community is agreed that the digital images under this setting still remain to be outside the confines of the
zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving its users the tools to interact and
share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not Facebook friends
with the former, despite its being visible only tohis or her own Facebook friends.
It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no assurance that it
can no longer be viewed by another user who is not Facebook friends with the source of the content. The user’s
own Facebook friend can share said content or tag his or her own Facebook friend thereto, regardless of whether
the user tagged by the latter is Facebook friends or not with the former. Also, when the post is shared or when a
person is tagged, the respective Facebook friends of the person who shared the post or who was tagged can view
the post, the privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C, A’s
Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of 100 (A’s own Facebook friends)
is dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending upon B’s privacy
setting). As a result, the audience who can view the post is effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user interaction and
socialization rather than seclusion or privacy, as it encourages broadcasting of individual user posts. In fact, it has
been said that OSNs have facilitated their users’ self-tribute, thereby resulting into the "democratization of fame."51
Thus, it is suggested, that a profile, or even a post, with visibility set at "Friends Only" cannot easily, more so
automatically, be said to be "very private," contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends,
respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook
friends who showed the pictures to Tigol. Respondents were mere recipients of what were posted. They did not
resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had
legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough,
however, neither the minors nor their parents imputed any violation of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the
photographs. In fact, what petitioners attributed to respondents as an act of offensive disclosure was no more than
the actuality that respondents appended said photographs in their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.52 These are not tantamount to a violation of the minor’s informational
privacy rights, contrary to petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students
scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any evidence, other than bare assertions
that they utilized Facebook’s privacy settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they
cannot now insist that they have an expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were limited to the original uploader, through the "Me Only"
privacy setting, or that the user’s contact list has been screened to limit access to a select few, through the "Custom"
setting, the result may have been different, for in such instances, the intention to limit access to the particular post,
instead of being broadcasted to the public at large or all the user’s friends en masse, becomes more manifest and
palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s ears."53 This means that self-regulation on the
part of OSN users and internet consumers ingeneral is the best means of avoiding privacy rights violations.54 As a
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cyberspace communitymember, one has to be proactive in protecting his or her own privacy.55 It is in this regard that
many OSN users, especially minors, fail.Responsible social networking or observance of the "netiquettes"56 on the
part of teenagers has been the concern of many due to the widespreadnotion that teenagers can sometimes go too
far since they generally lack the people skills or general wisdom to conduct themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its curriculum to
educate its students on proper online conduct may be mosttimely. Too, it is not only STC but a number of schools
and organizations have already deemed it important to include digital literacy and good cyber citizenshipin their
respective programs and curricula in view of the risks that the children are exposed to every time they participate in
online activities.58 Furthermore, considering the complexity of the cyber world and its pervasiveness,as well as the
dangers that these children are wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their children about being a good digital
citizen is encouraged by these institutions and organizations. In fact, it is believed that "to limit such risks, there’s no
substitute for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students to beresponsible in their
dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary actions specified in the
Student Handbook, absenta showing that, in the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever they engage incyberspace
activities. Accordingly, they should be cautious enough to control their privacy and to exercise sound discretion
1âwphi1
regarding how much information about themselves they are willing to give up. Internet consumers ought to be aware
that, by entering or uploading any kind of data or information online, they are automatically and inevitably making it
permanently available online, the perpetuation of which is outside the ambit of their control. Furthermore, and more
importantly, information, otherwise private, voluntarily surrendered by them can be opened, read, or copied by third
parties who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must
not be negligent in protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here,
requires that claimants themselves take utmost care in safeguarding a right which they allege to have been violated.
These are indispensable. We cannot afford protection to persons if they themselves did nothing to place the matter
within the confines of their private zone. OSN users must be mindful enough to learn the use of privacy tools, to use
them if they desire to keep the information private, and to keep track of changes in the available privacy settings,
such as those of Facebook, especially because Facebook is notorious for changing these settings and the site's
layout often.
In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no cogent reason to
disturb the findings and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the
Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
DIOSDADO M. PERALTA
Associate Justice
MARTIN S. VILLARAMA, JR. BIENVENIDO L. REYES
Associate Justice Associate Justice
FRANCIS H. JARDELEZA
Associate Justice
AT T E S T A T I O N
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.
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2/1/24, 7:47 PM G.R. No. 81798
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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 81798 December 29, 1989
LAO GI alias FILOMENO CHIA, SR., his wife, ONG UE, and his children FILOMENO, JR., MANUEL, ROSITA
VICENTA and DOMINGA, all surnamed CHIA, petitioners
vs.
HONORABLE COURT OF APPEALS AND COMMISSION ON IMMIGRATION AND DEPORTATION, respondents.
Dakila F. Castro & Associates for petitioners.
GANCAYCO, J.:
On September 3, 1958 the Secretary of Justice rendered Opinion No. 191, series of 1958 finding Filomeno Chia, Jr.,
alias Sia Pieng Hui to be a Filipino citizen as it appears that his father Filomeno Chia, Sr. is a Filipino citizen born on
November 28, 1899 being the legitimate son of Inocencio Chia and Maria Layug of Guagua, Pampanga. However
on October 3, 1980 the Minister of Justice rendered Opinion No. 147, series of 1980 cancelling Opinion No. 191,
series of 1958 and setting aside the citizenship of Filomeno Chia, Sr. on the ground that it was founded on fraud and
misrepresentation. A motion for reconsideration of said Opinion was denied by the Minister of Justice on February
13, 1981.
On March 9, 1981 a charge for deportation was filed with the Commission on Immigration and Deportation (CID)
against Lao Gi alias Filomeno Chia, Sr., his wife and children.
An amended charge was filed with the CID on March 19,1981 alleging that said respondents refused to register as
aliens having been required to do so and continued to refuse to register as such. On August 31, 1981 another
amended charge was filed alleging that Manuel Chia committed acts of undesirability.
On September 4, 1981 said respondents filed a motion to dismiss the amended charges on the ground that the CID
has no authority to reopen a matter long settled under Opinion No. 191, series of 1958. The motion to dismiss was
opposed by the private prosecutor. The CID special prosecutor also filed an opposition on the ground that the
citizenship may be threshed out as the occasion may demand and that due process was accorded to respondents.
The respondents filed a reply thereto. The motion to dismiss was denied by the CID and a motion for
reconsideration of said denial was also denied in a resolution dated December 10, 1981.
Said respondents then filed with this Court on February 11, 1982 a petition for certiorari and prohibition with a prayer
for the issuance of a writ of preliminary injunction and restraining order docketed as G.R. No. 59619. After requiring
a comment thereon, on April 28, 1982 this court en banc resolved to dismiss the petition for lack of merit.
Earlier, Manuel Chia was charged with falsification of public documents in the Court of First Instance (CFI) of Manila
in Criminal Case No. 60172 for alleging that he was a Filipino citizen in the execution of a Deed of Absolute Sale of
certain real property. He was acquitted by the trial court in an order dated May 5, 1982 on the ground that Opinion
No. 191, series of 1958 of the Secretary of Justice may be equated as res judicata and that revocation thereof by
Opinion No. 147, series of 1980 cannot be considered just, fair and reasonable.
On June 1, 1982 respondents filed a motion for reconsideration of the aforesaid resolution of this Court dismissing
the petition but this was denied by another resolution of this Court dated August 17, 1982. A second motion for
reconsideration thereof was also denied by this Court on September 16, 1982.
On September 23, 1982 the CID set the deportation case against respondents for hearing and Acting Commissioner
Victor G. Nituda gave respondents three (3) days to move for reconsideration of the order directing them to register
as aliens and to oppose the motion for their arrest. On September 27, 1982 respondents filed said motion for
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reconsideration and opposition but this was denied by Acting Commissioner Nituda on September 28, 1982. The
latter directed respondents to register as aliens within two (2) days from notice thereof. The deportation case was
set for hearing on October 5, 1 982 but on the same day respondents filed the petition for certiorari and prohibition
with a prayer for injunctive relief in the Court of First Instance of Manila docketed as Civil Case No. 82- 12935
whereby a writ of preliminary injunction was issued. On April 17,1985 a decision was rendered by the trial court
dismissing the petition for lack of legal basis and for want of supervisory jurisdiction on the part of the trial court on
the particular subject involved. The writ of preliminary injunction previously issued was dissolved.
An appeal therefrom was interposed to the Court of Appeals. In due course a decision was rendered on August 19,
1987 dismissing the appeal with costs against petitioners. A motion for reconsideration of the decision filed by
petitioners was also denied in a resolution dated January 7, 1988.
Hence, the herein petition for certiorari filed by petitioners wherein they seek to set aside the decision of the Court of
Appeals and ask that a new one be rendered setting aside the order of the CID dated September 28, 1982 and
directing it to proceed with the reception of the evidence in support of the charges against the petitioners. The
issues raised in the petition are as follows:
1. The issues raised in G.R. No. 59619 before the Honorable Supreme Court were different from the issues raised in
Civil Case No. 82-12935-CV.
2. The minute resolution of the Honorable Supreme Court in G.R. No. 59619 did not make a categorical ruling that
petitioner entered and remained in the Philippines by false pretenses.
3. The issue of whether or not petitioners' citizenship was secured by fraud is precisely the subject matter of the
proceedings before the Commission on Immigration and Deportation, in which no evidence had been presented yet
in support of the charge of fraud in the acquisition of petitioners' citizenship.
4. Petitioners are not subject to immediate deportation.
5. The order for the arrest of petitioners in case of failure to register as aliens was premature since there was no
competent determination yet that their citizenship was indeed procured by fraud.
6. The Honorable Court of Appeals overstepped its appellate jurisdiction, when it ruled on matters not covered by
the Decision of the lower court.
There can be no question that the CID has the authority and jurisdiction to hear and determine the deportation case
against petitioners and in the process determine also the question of citizenship raised by the petitioners. Section
37(a) (1) of the Immigration Act provides as follows:
SEC. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration or of any other officer designated by him for the purpose and deported upon the warrant of
the Commissioner of Immigration after a determination by the Board of Commissioners of the existence
of the ground for deportation as charged against the alien:
(1) Any alien who enters the Philippines after the effective date of this Act by means of false and
misleading statements or without inspection and admission by the immigration authorities at a
designated port of entry or at any place other than at a designated port of entry. (As amended by Sec.
13, Rep. Act No. 503.) ...
From the foregoing provision it is clear that before any alien may be deported upon a warrant of the Commissioner
of Immigration, there should be a prior determination by the Board of Commissioners of the existence of the ground
as charged against the alien.
In this case it appears that petitioners are charged with having entered the Philippines by means of false and
misleading statements or without inspection or admission by the immigration authorities at a designated port of
entry.
After appropriate charges are filed in the CID the specific grounds of which he should be duly informed of, a hearing
should be conducted, and it is only after such a hearing by the CID that the alien may be ordered deported. In such
a hearing, Opinion No. 191, Series of 1958 of the Secretary of Justice and Opinion No. 147, Series of 1980 of the
Minister of Justice will bear much weight in the determination by the CID of the citizenship of said petitioners.
The petitioners question the Order of Acting Commissioner Nituda that they register as aliens as required by the
Immigration Act. While it is not disputed that it is also within the power and authority of the Commissioner to require
an alien to so register, such a requirement must be predicated on a positive finding that the person who is so
required is an alien. In this case where the very citizenship of the petitioners is in issue there should be a previous
determination by the CID that they are aliens before the petitioners may be directed and required to register as
aliens.
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The power to deport an alien is an act of the State. It is an act by or under the authority of the sovereign power. 1 It
is a police measure against undesirable aliens whose presence in the country is found to be injurious to the public
good and domestic tranquility of the people. 2

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is
a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional
right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the
Philippines particularly on criminal procedure are applicable to deportation proceedings.

Under Section 37(c) of the Philippine Immigration Act of 1940 as amended, it is provided:

c No alien shall be deported without being informed of the specific grounds for deportation nor without
being given a hearing under rules of procedure to be prescribed by the Commissioner of Immigration.

Hence, the charge against an alien must specify the acts or omissions complained of which must be stated in
ordinary and concise language to enable a person of common understanding to know on what ground he is intended
to be deported and enable the CID to pronounce a proper judgment. 3

Before any charge should be filed in the CID a preliminary investigation must be conducted to determine if there is a
sufficient cause to charge the respondent for deportation. 4 The issuance of warrants of arrest, arrests without
warrant and service of warrants should be in accordance likewise with Rule 113 of the 1985 Rules of Criminal
Procedure; 5 search warrants issued by the CID shall be governed by Rule 126 of the 1985 Rules of Criminal
Procedure; 6 and so the matter of bail, motion to quash, and trial, 7 among others. Fealty to the prescribed rules of
procedure in deportation cases shall insure a speedy, fair and just dispensation of justice.

The Court takes note of the fact that a private prosecutor is assisting in the prosecution of the case by the special
prosecutor of the CID. The Court sees no reason why a private prosecutor should be allowed to participate in a
deportation case. Under the 1985 Rules on Criminal Procedure, particularly Section 16, Rule 110 thereof, an
offended party may intervene in a criminal prosecution when there is civil liability arising from the criminal action
claimed by said party. In such case he may intervene by counsel.

In deportation cases, the Court cannot conceive of any justification for a private party to have any right to intervene.
Even if such party can establish any damages due him arising from the deportation charge against the alien, such
relief cannot be afforded him in the deportation proceeding. His recourse if at all is in the ordinary courts. Thus the
Court rules that the intervention of a private prosecutor should not be allowed in deportation cases. The possibility of
oppression, harrassment and persecution cannot be discounted. The deportation of an alien is the sole concern of
the State. This is the reason why there are special prosecutors and fiscals tasked to prosecute such cases.

WHEREFORE, the petition is hereby GRANTED and the questioned order of the respondent Commission on
Immigration and Deportation dated September 28, 1982 is hereby set aside. The respondent Commission on
Immigration and Deportation is hereby directed to continue hearing the deportation case against petitioners and
thereafter, based on the evidence before it, to resolve the issue of citizenship of petitioners, and if found to be aliens,
to determine whether or not the petitioners should be deported and/or otherwise ordered to register as aliens. No
costs.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 In re R. McCulloch Dick, 38 Phil. 41, 211, 224 (1918).

2 Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534 (1910).

3 Section 9, Rule 110, 1985 Rules of Criminal Procedure.

4 Section 15, Preliminary Investigation, Deportation Rules of Procedure; Rule 112, Rules of Criminal Procedure.

5 Sections 5 and 6 of the Deportation Rules of Procedure.

6 Section 7, supra.

7 Sections 16, 17 and 21, supra; Rules 114, 117 and 119, 1985 Rules of Criminal Procedure.

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2/1/24, 7:48 PM G.R. No. 154745
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SECOND DIVISION
G.R. No. 154745 January 29, 2004
COMMISSIONER ANDREA D. DOMINGO, BUREAU OF IMMIGRATION, Petitioner,
vs.
HERBERT MARKUS EMIL SCHEER, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review under Rule 45 of the Rules of Court, as amended, of the Decision1 of the Court of
Appeals in CA-G.R. SP No. 71094 granting the respondent’s petition for certiorari and prohibition annulling the order
of arrest issued by the petitioner, and permanently enjoining her from deporting the respondent from the Philippines.
Through its decision, the CA virtually reversed the Summary Deportation Order2 of the Board of Commissioners
(BOC) and its Omnibus Resolution3 denying the respondent’s Urgent Motion for Reconsideration of said Order, and
enjoining the petitioner from deporting the respondent.
The facts as culled from the records are as follows:
Respondent Herbert Markus Emil Scheer, a native of Ochsenfurt, Germany, was a frequent visitor of the Philippines.
On July 18, 1986, his application for permanent resident status was granted.4 The Bureau of Immigration and
Deportation (BID) issued in favor of the respondent Alien Certificate of Registration No. B-396907 dated September
16, 19875 and Immigration Certificate of Residence No. 256789 dated February 24, 1988.6 The Commissioner stated
that the granting of the petition would redound to the benefit of the Filipino people.7 During his sojourn in the
Philippines, the respondent married widowed Edith delos Reyes8 with whom he had two daughters. They had a son,
Herbert Scheer, Jr., but he passed away on November 13, 1995.9 They resided in Puerto Princesa City, Palawan,
where the respondent established and managed the Bavaria Restaurant. On May 21, 1991, he was appointed
Confidential Agent by then NBI Director Alfredo S. Lim.10
In a Letter dated June 29, 1995, Vice Consul Jutta Hippelein informed the Philippine Ambassador to Bonn,
Germany, that the respondent had police records and financial liabilities in Germany.11
The Department of Foreign Affairs received from the German Embassy in Manila Note Verbale No. 369/95 dated
July 26, 1995, informing it that the respondent was wanted by the German Federal Police; that a warrant of arrest
had been issued against him; and that the respondent will be served with an official document requesting him to turn
over his German passport to the Embassy which was invalidated on July 2, 1995.12 The Embassy requested the
Department of Foreign Affairs to inform the competent Philippine authorities of the matter. The BOC thereafter
issued a Summary Deportation Order dated September 27, 1997. The penultimate paragraph of the Order reads:
WHEREFORE, the foregoing considered, the Board of Commissioners hereby orders the following:
1. Cancellation of respondent’s permanent residence visa;
2. Respondent’s summary deportation and permanent exclusion from the Philippines; and
3. Inclusion of his name on the Bureau’s Blacklist.
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PROVIDED, however that said summary deportation should be held in abeyance in case said alien has a pending
final and executory criminal conviction where the imposed penalty is imprisonment, in which case, he has to serve
first such imposed penalty, and/or has a pending criminal, civil or administrative action and a Hold Departure Order
has been issued or that his presence in said action is indispensable. In such instances, the alien should remain in
the custody of the Bureau until his turnover to the proper authorities in case he has to serve imprisonment or in case
of pendency of civil or criminal administrative action, he shall remain in the custody of the Bureau until such time
that his pending cases shall have been decided, terminated or settled, as the case may be, unless circumstances
demand the immediate implementation of this summary deportation.
...
SO ORDERED.13
In issuing the said order, the BOC relied on the correspondence from the German Vice Consul on its speculation
that it was unlikely that the German Embassy will issue a new passport to the respondent; on the warrant of arrest
issued by the District Court of Germany against the respondent for insurance fraud; and on the alleged illegal
activities of the respondent in Palawan.14 The BOC concluded that the respondent was not only an undocumented
but an undesirable alien as well.
When the respondent was apprised of the deportation order, he forthwith aired his side to then BID Commissioner
Leandro T. Verceles. The Commissioner allowed the respondent to remain in the Philippines, giving the latter time to
secure a clearance and a new passport from the German Embassy.15 Then Presidential Assistant Teodorico K.
Imperial wrote a Testimonial dated November 24, 1995, in behalf of the respondent addressed to Commissioner
Verceles. Nonetheless, the respondent, through counsel, filed on December 5, 1995 an Urgent Motion for
Reconsideration of the Summary Deportation Order of the BOC.16 In his motion, the respondent alleged, inter alia,
that:
1. The elementary rules of due process require notice and opportunity to be heard before a person can be
lawfully deprived of his right (Ute Paterok vs. Bureau of Customs, 193 SCRA 132). In the instant case,
although it is acknowledged that the Honorable Office may conduct summary deportation proceedings,
respondent was not given notice and opportunity to be heard before said Summary Deportation Order was
issued. Respondent’s right to procedural due process was therefore violated. Consequently, the Summary
Deportation Order is invalid.
2. In issuing, the Summary Deportation Order, this Honorable Office relied on Note Verbal No. 369/95 issued
by the Embassy of the Federal Republic of Germany, Manila, notifying the Department of Foreign Affairs and
this Honorable Office about the warrant of arrest against respondent for alleged illegal insurance fraud and
illegal activities. However, a close scrutiny of said note verbal shows that nowhere therein does it state that
respondent was involved in insurance fraud or in any kind of illegal activities in Germany or anywhere else in
the world, such as in Palawan. Therefore, the main basis of the Summary Deportation Order is incompetent
as evidence against respondent who is, like every Filipino, presumed to be innocent until his guilt is proven
beyond reasonable doubt.
3. The power to deport alien is a police power measure necessary against undesirable alien whose presence
in the country is injurious to the public good and domestic tranquility of the country (Board of Commissioner
Commission on Immigration vs. De la Rosa, 197 SCRA 853). It is respectfully submitted that respondent is
not an undesirable alien. He has stayed in the Philippines for more or less than (10) years. He has married a
Filipina and has three (3) minor children. He has established his business in Palawan and he has no police
record whatsoever. Respondent has considered the Philippines his second home and he has nowhere else to
go back to in Germany. Under the circumstances and for humanitarian considerations, respondent is not an
undesirable alien whose deportation is warranted. Likewise, the mere fact that his passport was not renewed
by the German Embassy does not also automatically justify the deportation of respondent.17
However, the BOC did not resolve the respondent’s motion. The respondent was neither arrested nor deported.
Meanwhile, on February 15, 1996, the District Court of Straubing rendered a Decision dismissing the criminal case
against the respondent for physical injuries.18 The German Embassy in Manila, thereafter, issued a temporary
passport to the respondent.
In a Letter dated March 1, 1996, the respondent informed Commissioner Verceles that his passport had been
renewed following the dismissal of the said criminal case. He reiterated his request for the cancellation of the
Summary Deportation Order dated September 27, 1995 and the restoration of his permanent resident status.19
Subsequently, on March 12, 1996, the German Embassy issued to the respondent a regular passport, to expire on
March 11, 2006.
The BOC still failed to resolve the respondent’s Urgent Motion for Reconsideration. Commissioner Verceles did not
respond to the respondent’s March 1, 1996 Letter. The respondent remained in the Philippines and maintained his
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business in Palawan. On March 20, 1997, the Department of Labor and Employment approved his application for
Alien Employment Registration Certificate as manager of the Bavaria Restaurant in Puerto Princesa City.
In the meantime, petitioner Immigration Commissioner Andrea T. Domingo assumed office. She wrote the German
Embassy and inquired if the respondent was wanted by the German police. On April 12, 2002, the German
Embassy replied that the respondent was not so wanted.20 At about midnight on June 6, 2002, Marine operatives
and BID agents apprehended the respondent in his residence on orders of the petitioner. He was whisked to the BID
Manila Office and there held in custody while awaiting his deportation. Despite entreaties from the respondent’s
wife21 and his employees, the petitioner refused to release the respondent.22
Shocked at the sudden turn of events, the respondent promptly communicated with his lawyer. The latter filed with
the BID a motion for bail to secure the respondent’s temporary liberty. On June 11, 2002, the respondent’s counsel
filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with a prayer for temporary
restraining order and writ of preliminary injunction, to enjoin the petitioner from proceeding with the respondent’s
deportation.23 The respondent (petitioner therein) alleged, inter alia, that his arrest and detention were premature,
unjust, wrongful, illegal and unconstitutional, effected without sufficient cause and without jurisdiction or with grave
abuse of discretion. He asserted that there was no speedy remedy open to him in the ordinary course of law24 and
that his Urgent Motion for Reconsideration of the Summary Deportation Order of the BOC had not yet been resolved
despite the lapse of more than six years. The respondent averred that he was a fully documented alien, a
permanent resident and a law-abiding citizen. He, thus, prayed as follows:
PRAYER
WHEREFORE, it is most respectfully prayed of this Honorable Court that:
1. Upon the filing of this Petition, this Honorable Court issue a Temporary Restraining Order to enjoin
respondent Commissioner from enforcing any order to deport petitioner;
2. After due hearing, a writ of preliminary and mandatory injunction be correspondingly issued to maintain the
status quo pending resolution of the Petition on the merits.
3. After hearing, judgment be rendered:
a) Directing and mandating respondent Commissioner and the body she heads to resolve the Motion
for Reconsideration filed in 1995, in his favor, and nullifying or suspending the implementation of any
order, oral or written, she may have issued or issue to deport petitioner; and
b) Making the injunction in petitioner’s favor permanent.
Petitioner likewise prays for such other and further relief as may be deemed just and equitable in the premises, such
as directing respondent, if Herbert Scheer is deported before the matter is heard on notice, to authorize his return.25
The BOC ruled that its September 27, 1995 Order had become final and executory after the lapse of one year, citing
our rulings in Sy vs. Vivo,26 and Lou vs. Vivo.27 The BOC also held that it was not competent to reverse the
September 27, 1995 Order, citing our ruling in Immigration Commissioner vs. Fernandez.28 It declared that the
respondent may seek the waiver of his exclusion via deportation proceedings through the exceptions provided by
Commonwealth Act No. 613,29 Section 29 (a)(15), but that his application for the waiver presupposes his prior
removal from the Philippines.
In a parallel development, the respondent procured a letter from the National Bureau of Investigation (NBI) in Puerto
Princesa City certifying that he had no pending criminal record.30 The Puerto Princesa City Philippine National Police
(PNP) also issued a certification that the respondent had no pending criminal or derogatory records in the said
office.31
Meanwhile, on June 26, 2002, the Court of Appeals issued a status quo order restraining the petitioner from
deporting the respondent on a bond of ₱100,000.00.32 On July 18, 2002, the BOC issued an Omnibus Resolution
dated June 14, 2002, pendente lite denying the respondent’s Urgent Motion for Reconsideration, Motion for
Bail/Recognizance, and the Letter dated June 11, 2002. The decretal portion of the resolution reads:
Wherefore, in view of the foregoing circumstances, we deny the prayers of the Urgent Motion for Reconsideration of
5 December 1995, the Motion for Bail/Recognizance dated 7 June 2002 and the Letter of 11 June 2002. Further, we
hereby order the following:
1. Subject to the submission of appropriate clearances, the summary deportation order the respondent
Herbert Scheer, German, under BI Office Memorandum Order No. 34 (series of 1989) and the BOC Summary
Deportation Order of 27 September 1995;
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2. Permanent exclusion of Herbert Scheer from the Philippines under C.A. No. 613, Section 40 (a)(15).
3. Inclusion of the name of Herbert Scheer in the Immigration Black List; and
4. Forfeiture of the bail bond, if any, of Herbert Scheer under C.A. No. 613, Section 40 (a)(15).
...
IT IS SO ORDERED.33
During the hearing of the respondent’s plea for a writ of preliminary mandatory injunction before the CA on July 22,
2002, the Office of the Solicitor General (OSG) manifested that the State had no opposition to the respondent’s re-
entry and stay in the Philippines, provided that he leave the country first and re-apply for admission and residency
status with the assurance that he would be re-admitted.34 The respondent’s counsel manifested to the appellate
court that he had just been informed by the OSG of the Omnibus Resolution of the BOC dated June 14, 2002.
In her Comment on the Petition, the petitioner (the respondent therein) alleged, inter alia, the following:
1) that the BOC was an indispensable party to the petition;
2) the petitioner’s failure to implead the BOC warranted the denial of the petition;
3) the allowance by then Immigration Commissioner Leandro Verceles for the petitioner therein to renew his
passport and secure clearances, even if proved, was not binding on the BOC;
4) the September 27, 1995 Order of the BOC was already executory when the respondent filed her petition in
the CA;
5) the German Embassy’s issuance of a new passport did not legalize the respondent’s stay in this country,
which became illegal on July 2, 1995 when his passport expired;
6) the respondent therein did not act with abuse of discretion in causing the arrest and detention of the
respondent based on the BOC’s Summary Deportation Order; and
7) the BOC did not act with grave abuse of discretion in issuing its Summary Deportation Order and Omnibus
Resolution and such order and resolution were not mooted by the German Embassy’s issuance of a new
passport in favor of the respondent.
In view of the Omnibus Resolution of the BOC, the respondent (petitioner therein) in his Memorandum prayed for
the nullification of the BOC’s Order, as well as its Omnibus Resolution denying his Urgent Motion for
Reconsideration considering that with the issuance of a new passport, there was no more basis for his deportation,
thus:
RELIEF
WHEREFORE, it is most respectfully prayed of this Honorable Court that:
1. Upon the filing of this Memorandum, this Honorable Court forthwith direct and authorize the immediate
release of petitioner, even on undersigned’s recognizance, until further orders from this Honorable Court;
2. The Summary Deportation Order of September 27, 19[9]5, affirmed by respondent allegedly on June 14,
2002 and made known only yesterday, be nullified to the extent that it directs the deportation of petitioner,
who has removed the very basis of said Order of not having a valid passport, and that the Resolution of June
14, 2002 be nullified in toto; and,
3. The Temporary Restraining Order of June 26, 2002 be converted into a permanent injunction or writ of
prohibition.
Petitioner likewise prays for such other and further relief as may be deemed just and equitable in the premises.35
Surprisingly, the respondent’s counsel received on July 24, 2003 a Letter from the petitioner dated July 16, 2002
stating that, "the BOC was in the course of reviewing the deportation case against Mr. Scheer, and that its findings
would be given in due time."36
On August 20, 2002, the Court of Appeals rendered a Decision in favor of the respondent granting his petition for
certiorari and prohibition and permanently enjoining the petitioner from deporting the respondent. The decretal
portion of the Decision reads:
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WHEREFORE, premises considered, the petitions for certiorari and prohibition are hereby GRANTED. Accordingly,
any order, oral or written, issued by respondent Commissioner Domingo against petitioner, in relation to his
deportation, is hereby ANNULLED, and respondent Commissioner Domingo is hereby permanently
enjoined/prohibited from deporting petitioner, in so far as this case is concerned.
It is likewise ordered that petitioner be released from his confinement/detention in the Bureau of Immigration
UNLESS there is/are fresh new grounds/cases that will warrant his continued detention.
37
SO ORDERED.
The Court of Appeals ruled that the German Embassy’s subsequent issuance of passport to the respondent before
the BOC’s issuance of its Omnibus Resolution had mooted the September 27, 1995 Summary Deportation Order, as
well as the arrest and detention of the respondent. According to the court, it made no sense to require the
respondent to leave the country and thereafter re-apply for admission with the BOC. Furthermore, since the grounds
cited by the BOC in its Summary Deportation Order no longer existed, there was no factual and legal basis to
disqualify the respondent from staying in the country.
On the issue of whether the members of the BOC were indispensable parties, the CA ruled as follows:
a) There are quite a number of cases in relevant jurisprudence wherein only the Immigration Commissioner
was impleaded to decide whether an alien may stay or be deported, such as in the case of Vivo vs. Arca (19
SCRA 878) and Vivo vs. Cloribel (22 SCRA 159).
b) In the case of Caruncho III vs. COMELEC (315 SCRA 693), it was pronounced that: "Ordinarily, the
nonjoinder of an indispensable party or the real party interest is not by itself a ground for the dismissal of the
petition. The court before which the petition is filed must first require the joinder of such party. It is the
noncompliance with said order that would be a ground for the dismissal of the petition."
thus, c) respondent may be estopped for not raising such issue earlier.38
Aggrieved, the respondent therein, now the petitioner, through the Office of the Solicitor General, appealed to us for
relief. The petitioner contends that the Court of Appeals erred on a question of law in granting the respondent’s
petition in CA-G.R. SP No. 71094.39
In support of his contention, the Solicitor General has submitted the following arguments:
I. THE WRIT OF MANDAMUS DOES NOT LIE AGAINST THE COMMISSIONER OF THE BUREAU OF
IMMIGRATION TO RESOLVE RESPONDENT’S URGENT MOTION FOR RECONSIDERATION OF THE
SUMMARY DEPORTATION ORDER, CONSIDERING THAT IT IS THE BOARD OF COMMISSIONERS, AND
NOT THE COMMISSIONER ALONE, WHICH HAS AUTHORITY TO MAKE SAID RESOLUTION.
II. THE WRIT OF CERTIORARI DOES NOT LIE AGAINST THE COMMISSIONER OF THE BUREAU OF
IMMIGRATION, CONSIDERING THAT IT IS THE BOARD OF COMMISSIONERS, AND NOT THE
COMMISSIONER ALONE, WHICH ISSUED THE SUMMARY DEPORTATION ORDER AND THE OMNIBUS
RESOLUTION.
III. THE WRIT OF PROHIBITION DOES NOT LIE AGAINST THE COMMISSIONER OF THE BUREAU OF
IMMIGRATION, PROHIBITING THE IMPLEMENTATION OF THE SUMMARY DEPORTATION ORDER AND
THE OMNIBUS RESOLUTION, CONSIDERING THAT THE BOARD OF COMMISSIONERS WAS NOT
IMPLEADED AS PARTY-RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094.
IV. ASSUMING BUT WITHOUT ADMITTING THAT THE BOARD OF COMMISSIONERS WAS PROPERLY
IMPLEADED AS PARTY-RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094, NEVERTHELESS,
THE SUMMARY DEPORTATION ORDER AND THE OMNIBUS RESOLUTION WERE NOT ISSUED
WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF (SIC) EXCESS OF JURISDICTION.
V. FURTHER ASSUMING BUT WITHOUT ADMITTING THAT THE BOARD OF COMMISSIONERS WAS
PROPERLY IMPLEADED AS PARTY-RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094, THE
COMMISSIONER OF THE BUREAU OF IMMIGRATION DID NOT ACT WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN IMPLEMENTING THE SUMMARY DEPORTATION ORDER AND THE OMNIBUS
RESOLUTION.40
Elucidating on his first three arguments, the petitioner maintains that the respondent’s petition for certiorari,
prohibition and mandamus before the Court of Appeals should have been dismissed because he failed to implead
the real party-in-interest as mandated by Rule 3, Section 7 of the Rules of Court, as amended; in this case, the
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BOC. According to the Solicitor General, this was a fatal procedural error. The inclusion of the BOC as respondent in
the case was necessary in order that its actions could be directly attacked and for the court to acquire jurisdiction
over it. The fact that Immigration Commissioner Andrea T. Domingo was impleaded as the sole respondent was not
enough, as she is only one of the four Commissioners. Furthermore, the assailed Orders were issued by the Board,
and not by the Immigration Commissioner alone.
The respondent counters that the petitioner is already estopped from raising this issue. He argues that -
In quite a number of jurisprudence, only the Immigration Commissioner is impleaded to decide whether an alien may
stay here or not. The bottom line is petitioner, head of the Bureau of Immigration, was more than fully heard on its
institutional position, a Bureau which speaks with a single voice in this case. She is in estoppel for not raising the
issue earlier, either in a timely Comment or during the oral argument…41
In Caruncho III v. Comelec, it was held that-
[O]rdinarily, the nonjoinder of an indispensable party or real party in interest is not by itself a ground for the dismissal
of the petition. The court before which the petition is filed must first require the joinder of such party. It is the
noncompliance with said order that would be a ground for the dismissal of the petition.
But even as the Court of Appeals did not require respondent of such joinder of parties, the respondent, in fact,
begged leave, ad cautelam, in its Reply Memorandum dated July 31, 2002 to implead the Board which speaks with
a single voice anyway in this case, and therefore, no claim can be made that a valid point of view has not been
heard…42
Moreover, according to the respondent, the petitioner is clearly the BID’s chosen instrumentality for the relevant
purpose. What the respondent ultimately questioned are the acts or orders of the petitioner for the arrest and
immediate deportation of the respondent by way of implementing the BOC’s Summary Deportation Order.
By way of reply, the Office of the Solicitor General asserted that the Summary Deportation Order and Omnibus
Resolution were collegial actions of the BOC and not of the petitioner alone. Although its Chairperson, the petitioner,
is merely a member thereof, her decisions and actions are still subject to the collective will of the majority.43
The Ruling of the Court
The BOC is an
Indispensable
Party
We agree with the petitioner’s contention that the BOC was an indispensable party to the respondent’s petition for
certiorari, prohibition and mandamus in the Court of Appeals. The respondent was arrested and detained on the
basis of the Summary Deportation Order of the BOC. The petitioner caused the arrest of the respondent in
obedience to the said Deportation Order. The respondent, in his Memorandum, prayed that the CA annul not only
the Summary Deportation Order of the BOC but also the latter’s Omnibus Resolution, and, thus, order the
respondent’s immediate release. The respondent also prayed that the CA issue a writ of mandamus for the
immediate resolution of his Urgent Motion for Reconsideration. The said motion had to be resolved by the BOC as
the order sought to be resolved and reconsidered was issued by it and not by the petitioner alone. The powers and
duties of the BOC may not be exercised by the individual members of the Commission.44
Section 7, Rule 3 of the Rules of Court, as amended, requires indispensable parties to be joined as plaintiffs or
defendants. The joinder of indispensable parties is mandatory. Without the presence of indispensable parties to the
suit, the judgment of the court cannot attain real finality.45 Strangers to a case are not bound by the judgment
rendered by the court.46 The absence of an indispensable party renders all subsequent actions of the court null and
void. Lack of authority to act not only of the absent party but also as to those present.47 The responsibility of
impleading all the indispensable parties rests on the petitioner/plaintiff.48
However, the non-joinder of indispensable parties is not a ground for the dismissal of an action. Parties may be
added by order of the court on motion of the party or on its own initiative at any stage of the action and/or such times
as are just.49 If the petitioner/plaintiff refuses to implead an indispensable party despite the order of the court, the
latter may dismiss the complaint/petition for the petitioner/plaintiff’s failure to comply therefor.50 The remedy is to
implead the non-party claimed to be indispensable.51 In this case, the CA did not require the respondent (petitioner
therein) to implead the BOC as respondent, but merely relied on the rulings of the Court in Vivo v. Arca,52 and Vivo v.
Cloribel.53 The CA’s reliance on the said rulings is, however, misplaced. The acts subject of the petition in the two
cases were those of the Immigration Commissioner and not those of the BOC; hence, the BOC was not a necessary
nor even an indispensable party in the aforecited cases.
The Non-joinder of an
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Indispensable Party is not
a Ground for the Dismissal
of the Petition
The Court may be curing the defect in this case by adding the BOC as party-petitioner. The petition should not be
dismissed because the second action would only be a repetition of the first.54 In Salvador, et al., v. Court of Appeals,
et al.,55 we held that this Court has full powers, apart from that power and authority which is inherent, to amend the
processes, pleadings, proceedings and decisions by substituting as party-plaintiff the real party-in-interest. The
Court has the power to avoid delay in the disposition of this case, to order its amendment as to implead the BOC as
party-respondent. Indeed, it may no longer be necessary to do so taking into account the unique backdrop in this
case, involving as it does an issue of public interest.56 After all, the Office of the Solicitor General has represented
the petitioner in the instant proceedings, as well as in the appellate court, and maintained the validity of the
deportation order and of the BOC’s Omnibus Resolution. It cannot, thus, be claimed by the State that the BOC was
not afforded its day in court, simply because only the petitioner, the Chairperson of the BOC,57 was the respondent
in the CA, and the petitioner in the instant recourse. In Alonso v. Villamor,58 we had the occasion to state:
There is nothing sacred about processes or pleadings, their forms or contents. Their sole purpose is to facilitate the
1âwphi1
application of justice to the rival claims of contending parties. They were created, not to hinder and delay, but to
facilitate and promote, the administration of justice. They do not constitute the thing itself, which courts are always
striving to secure to litigants. They are designed as the means best adapted to obtain that thing. In other words, they
are a means to an end. When they lose the character of the one and become the other, the administration of justice
is at fault and courts are correspondingly remiss in the performance of their obvious duty.
The CA had Jurisdiction
Over the Petition for
Certiorari, Prohibition
and Mandamus
We do not agree with the petitioner’s contention that the issue before the CA, as to the power of the President to
determine whether an alien may remain or be deported from the Philippines, is beyond the appellate court’s
competence to delve into and resolve. The contention of the petitioner is based on a wrong premise.
The settled rule is that the authority to exclude or expel aliens by a power affecting international relation is vested in
the political department of the government, and is to be regulated by treaty or by an act of Congress, and to be
executed by the executive authority according to the regulations so established, except in so far as the judicial
department has been authorized by treaty or by statute, or is required by the Constitution to intervene.59 The judicial
department cannot properly express an opinion upon the wisdom or the justice of the measures executed by
Congress in the exercise of the power conferred on it,60 by statute or as required by the Constitution. Congress may,
by statute, allow the decision or order of the Immigration Commissioner or the BOC to be reviewed by the President
of the Philippines or by the courts, on the grounds and in the manner prescribed by law.
Article VIII, Section 1 of the Constitution has vested judicial power in the Supreme Court and the lower courts such
as the Court of Appeals, as established by law. Although the courts are without power to directly decide matters over
which full discretionary authority has been delegated to the legislative or executive branch of the government and
are not empowered to execute absolutely their own judgment from that of Congress or of the President,61 the Court
may look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion,
when the act of the legislative or executive department violates the law or the Constitution. In Harvy Bridges v. I.F.
Wixon,62 the United States Federal Supreme Court reversed an Order of Deportation made by the Attorney General
for insufficiency of evidence and for "improper admission of evidence." In Nging v. Nagh,63 the United States Court of
Appeals (9th Circuit Court) held that conclusions of administrative offices on the issues of facts are invulnerable in
courts unless when they are not rendered by fair-minded men; hence, are arbitrary. In Toon v. Stump,64 the Court
ruled that courts may supervise the actions of the administrative offices authorized to deport aliens and reverse their
rulings when there is no evidence to sustain them. When acts or omissions of a quasi-judicial agency are involved, a
petition for certiorari or prohibition may be filed in the Court of Appeals as provided by law or by the Rules of Court,
as amended.65
In this case, the respondent alleges that the petitioner acted arbitrarily, contrary to law and with grave abuse of
discretion in causing his arrest and detention at a time when his Urgent Motion for Reconsideration of the BOC’s
Summary Deportation Order had yet to be resolved. There was no factual or legal basis for his deportation
considering that he was a documented alien and a law-abiding citizen; the respondent, thus, prayed for a writ of
mandamus to compel the petitioner, the Chairperson of the BOC, to resolve the said motion. The petition before the
CA did not involve the act or power of the President of the Philippines to deport or exclude an alien from the country.
This being so, the petition necessarily did not call for a substitution of the President’s discretion on the matter of the
deportation of the respondent with that of the judgment of the CA.
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Irrefragably, the CA had jurisdiction over the petition of the respondent.
The BOC Committed a Grave
Abuse of Discretion Amounting
To Lack or Excess of Jurisdiction
In Issuing its Summary Deportation
Order and Omnibus Resolution; The
Petitioner Committed a Grave Abuse
Of Her Discretion Amounting to
Lack or Excess of Jurisdiction in
Causing the Arrest and Detention
Of The Private Respondent
On the Solicitor General’s fourth and fifth arguments, we are convinced that the BOC committed a grave abuse of
discretion amounting to excess or lack of jurisdiction in issuing its Summary Deportation Order and Omnibus
Resolution, and that the petitioner committed grave abuse of discretion amounting to excess or lack of jurisdiction in
causing the arrest and detention of the private respondent.
The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such
privilege is not absolute nor permanent and may be revoked. However, aliens may be expelled or deported from the
Philippines only on grounds and in the manner provided for by the Constitution, the Immigration Act of 1940, as
amended, and administrative issuances pursuant thereto. In Mejoff v. Director of Prisons,66 we held, thus:
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of
international law a part of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights"
and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary
meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that "All human beings are born free and equal in degree and rights"
(Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any
kind, such as race, color, sex, language, religion, political or other opinion, nationality or social origin, property, birth,
or other status" (Art. 2); that "Every one has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be
subjected to arbitrary arrest, detention or exile" (Art. 9); etc.
In this case, the BOC ordered the private respondent’s deportation on September 27, 1995 without even conducting
summary deportation proceedings. The BOC merely relied on the June 29, 1995 Letter of the German Vice Consul
and of the German Embassy’s Note Verbale No. 369/95 dated July 26, 1995. It issued the Summary Deportation
Order on September 27, 1995 allegedly under paragraph 3 of Office Memorandum Order No. 34 dated August 21,
1989 which reads:
3. If a foreign embassy cancels the passport of the alien or does not reissue a valid passport to him, the alien loses
the privilege to remain in the country, under the Immigration Act, Sections 10 and 15 (Schonemann vs. Santiago, et
al., G.R. No. 81461, 30 May 1989). The automatic loss of the privilege obviates deportation proceedings. In such
instance, the Board of Commissioners may issue summary judgment of deportation which shall be immediately
executory.
However, as gleaned from the Summary Deportation Order, the respondent was ordered deported not only because
his passport had already expired; the BOC speculated that the respondent committed insurance fraud and illegal
activities in the Philippines and would not, thus, be issued a new passport. This, in turn, caused the BOC to
conclude that the respondent was an undesirable alien. Section 37(c) of Commonwealth Act No. 613, as amended,
provides that:
No alien shall be deported without being informed of the specific grounds for deportation or without being given a
hearing under rules of procedure to be prescribed by the Commissioner of Immigration.
Under paragraphs 4 and 5 of Office Memorandum Order No. 34, an alien cannot be deported unless he is given a
chance to be heard in a full deportation hearing, with the right to adduce evidence in his behalf, thus:
4. All other cases shall be tried in full deportation hearing, with due observance of the pertinent provisions of Law
Instruction No. 39.
5. In all cases, the right of the alien to be informed of the charges against him, to be notified of the time and place of
hearing, when necessary, to examine the evidence against him, and to present evidence in his own behalf, where
appropriate, shall be observed.
The respondent was not afforded any hearing at all. The BOC simply concluded that the respondent committed
insurance fraud and illegal activities in Palawan without any evidence. The respondent was not afforded a chance to
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refute the charges. He cannot, thus, be arrested and deported without due process of law as required by the Bill of
Rights of the Constitution. In Lao Gi v. Court of Appeals,67 we held that:
Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is
a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional
right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the
Philippines particularly on criminal procedure are applicable to deportation proceedings.
It must be noted that the respondent was a permanent resident before his passport expired on July 2, 1995. In
Chew v. Colding,68 the United States Federal Supreme Court ruled:
It is well established that if an alien is a lawful permanent resident of the United States and remains physically
present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty
or property without due process of law. Although it later may be established, as respondents contend, that petitioner
can be expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a
hearing at least before an executive or administrative tribunal. Although Congress may prescribe conditions for his
expulsion and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard.
As Mr. Justice Murphy said in his concurring opinion in Bridges v. Wixon:69
The Bill of Rights belongs to them as well as to all citizens. It protects them as long as they reside within the
boundaries of our land. It protects them in the exercise of the great individual rights necessary to a sound political
and economic democracy.
According to Vattal,70 an alien who is a permanent resident in a country is a member of the new society, at least as a
permanent inhabitant, and is a kind of citizen of inferior order from the native citizens; but is, nevertheless, limited
and subject to the society, without participating in all its advantages. Sir Robert Philconse called them "de facto,"
though not de jure citizens of the country of their domicile.71
Such permanent resident72 may be classified as a "denizen," a kind of middle state between alien and a natural-born
subject and partakes of both. Paraphrasing Justice Brewer in his dissenting opinion in Fong Yue Ting v. United
States,73 when the right to liberty and residence is involved, some other protection than the mere discretion of the
petitioner or the BOC is required. We recall the warning of the United States Supreme Court in Boyd v. United
States:74
Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional
provisions for the security of person and property should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to a gradual depreciation of the right, as if it consisted more in sound
than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. Their motto should be obsta principiis.
In sum, the arrest and detention of the respondent and his deportation under the Summary Deportation Order of the
BOC for insurance fraud and illegal activities in Palawan violated his constitutional and statutory rights to due
process.
The Respondent’s Arrest and
Detention was Premature,
Unwarranted and Arbitrary
We agree that the Immigration Commissioner is mandated to implement a legal and valid Summary Deportation
Order within a reasonable time. But in this case, the arrest of the respondent in his house, at near midnight, and his
subsequent detention was premature, unwarranted and arbitrary. Like a thunderbolt in the sky, the BID agents and
marines arrested the respondent on June 6, 2002, on orders of the petitioner based on the September 27, 1995
Summary Deportation Order. Under the basic rudiments of fair play and due process, the petitioner was required to
first resolve the respondent’s Urgent Motion for Reconsideration of the said Order, which was filed more than six
years before or on December 5, 1995.
It may be argued that respondent’s filing of an Urgent Motion for Reconsideration did not ipso facto suspend the
efficacy of the BOC’s deportation order. However, such an argument cannot be sustained in this case because of
the extant and peculiar factual milieu. It bears stressing that more than six years had elapsed, from the time the
Summary Deportation Order was issued, until the respondent was finally arrested. Supervening facts and
circumstances rendered the respondent’s arrest and detention unjust, unreasonable, barren of factual and legal
basis. The BOC should have set the respondent’s motion for hearing to afford him a chance to be heard and adduce
evidence in support thereon. It was bad enough that the BOC issued its Summary Deportation Order without a
hearing; the BOC dealt the respondent a more severe blow when it refused to resolve his motion for reconsideration
before causing his arrest on June 6, 2002.
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As aforestated, the BOC ordered the deportation of the respondent after a summary proceeding without prior notice
on the following grounds: (a) the respondent’s German passport had expired; (b) there was a pending criminal case
for physical injuries against him in Germany; (c) the respondent indulged in illegal activities in Palawan; (d) that in all
likelihood, the respondent’s passport will not be renewed by the German Embassy as he was wanted for insurance
fraud in Germany; and, (e) he was an undesirable alien. But then, in response to the written query of no less than
the petitioner herself, the German Embassy declared that the respondent was not wanted by the German police for
any crime, including insurance fraud. This could only mean that the warrant of arrest issued by the German Federal
police mentioned in Note Verbale No. 369/95 had been lifted, and that the respondent was not involved in any illegal
activities in Germany. The criminal case against the respondent for physical injuries, which does not involve moral
turpitude, was dismissed by the German District Court. Furthermore, there was no evidence of insurance fraud
against the respondent.
The BOC issued its Summary Deportation Order without affording the respondent the right to be heard on his
motion and adduce evidence thereon. It merely concluded that the respondent was involved in "illegal activities in
Palawan." What made matters worse was that the BOC indulged in sheer speculation, that the German Embassy is
unlikely to issue a new passport to the respondent. The deportation of aliens should not be based on mere
speculation or a mere product of procrastinations as in this case. As it turned out, the German Embassy re-issued
the respondent’s passport; he was issued a temporary passport, and, thereafter, a regular passport, yet to expire on
March 12, 2006. The petitioner cannot feign ignorance of this matter because the respondent himself, six years
before he was arrested, informed then Immigration Commissioner Verceles in a Letter dated March 1, 1996. The
respondent’s letter forms part of the records of the BOC. There is no evidence on record that the respondent
committed any illegal activities in Palawan. He was even designated as special agent of the NBI, and was, in fact,
issued clearances by the PNP and the NBI no less. Despite all the foregoing, the petitioner ordered and caused the
arrest and detention of the respondent.
What is most nettlesome is the apparent antedating of the BOC Omnibus Resolution. The records show that the
petitioner sought to assuage the respondent’s concern on the belated resolution of his pending urgent motion for
reconsideration in a Letter to the latter’s counsel dated July 18, 2002 in which the petitioner assured the respondent
that the BOC will provide him of its action on the said motion:
Dear Atty. Sagisag,
We respond to your letter of 17 June 2002 by informing you that the case of Mr. Herbert Scheer is
being evaluated by the Board of Commissioners (BOC). The BOC will provide you of the results of its
collegial action in due time.
Very truly yours,
(Sgd.) ANDREA D. DOMINGO
Commissioner75
However, the Omnibus Resolution of the BOC was dated June 14, 2002, although on its face it was filed with the
Records Division of the BID only on July 18, 2002.
The foregoing gave reason for the CA to suspect that the Omnibus Resolution of the BOC was antedated.76 The
petition of the respondent in the CA must have jolted the petitioner and the BOC from its stupor because it came out
with its Omnibus Resolution on July 18, 2002, which was, however, dated as early as June 14, 2002. The
respondent had to wait in anxiety for the BOC to quench his quest for justice. The BOC’s wanton acts amounted to
an abdication of its duty to act and/or resolve cases/incidents with reasonable dispatch. To recall our ruling in Board
of Commissioners v. De la Rosa,77 citing Sheor v. Bengson,78 thus:
This inaction or oversight on the part of the immigration officials has created an anomalous situation which, for
reasons of equity, should be resolved in favor of the minor herein involved.
The petitioner and the BOC should have taken to heart the following pronouncement in Commissioner of
Immigration v. Fernandez:79
In the face of the disclosure that Teban Caoili had been all along working in the Avenue Electrical Supply Co.
(Avesco), located at No. 653 Rizal Avenue, Manila, until his arrest, and the documentary evidence showing that he
had been issued a Philippine Passport; had regularly paid his Residence Tax Certificates (A & B), and filed Income
Tax Returns, a finding of fact is necessary whether the Commissioner really had intended to notify Teban Caoili of
the exclusion proceedings the Board had conducted in his absence. While it may be true that the proceedings is
purely administrative in nature, such a circumstance did not excuse the serving of notice. There are cardinal primary
rights which must be respected even in proceedings of administrative character, the first of which is the right of the
party interested or affected to present his own case and submit evidence in support thereof.80
...
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Since the proceedings affected Caoili’s status and liberty, notice should have been given. And in the light of the
actuations of the new Board of Commissioners, there is a necessity of determining whether the findings of the Board
of Special Inquiry and the old Board of Commissioners are correct or not. This calls for an examination of the
evidence, and, the law on the matter.81
Apparently, the BOC did not bother to review its own records in resolving the respondent’s Urgent Motion for
Reconsideration. It anchored its Omnibus Resolution only on the following: the membership of the BOC had
changed when it issued its September 27, 1995 Summary Deportation Order and under Commonwealth Act No.
613, Section 27(b); the BOC is precluded from reversing a previous order issued by it;82 and, the September 27,
1995 Order of the BOC had become final and could no longer be reviewed and reversed by it after the lapse of one
year.83 However, the rulings cited by the petitioner are not applicable in the instant case, as the said cases cited
involve appeals to the BOC from the decisions of the Board of Special Inquiry (BSI). In Sy v. Vivo84 and Lou v.
Vivo,85 we ruled that under Section 27(b) of Commonwealth Act No. 613, as amended, the Decision of the BOC on
appeal from the decision of the BSI becomes final and executory after one year:
(b) A board of special inquiry shall have authority (1) to determine whether an alien seeking to enter or land in the
Philippines shall be allowed to enter or land or shall be excluded, and (2) to make its findings and recommendations
in all the cases provided for in section twenty-nine of this Act wherein the Commissioner of Immigration may admit
an alien who is otherwise inadmissible. For this purpose, the board or any member thereof, may administer oaths
and take evidence and in case of necessity may issue subpoena and/or subpoena duces tecum. The hearing of all
cases brought before a board of special inquiry shall be conducted under rules of procedure to be prescribed by the
Commissioner of Immigration. The decision of any two members of the board shall prevail and shall be final unless
reversed on appeal by the Board of Commissioners as hereafter stated, or in the absence of an appeal, unless
reversed by the Board of Commissioners after a review by it, motu propio, of the entire proceedings within one year
from the promulgation of the decision.
In Commissioner of Immigration v. Fernandez,86 we held that the BOC composed of new members is precluded from
reversing, motu proprio, the decision of the BOC on appeal from a BSI decision. But not to be ignored was our ruling
that "at any rate, the issue of authority should be made in accordance with the procedure established by law, with a
view to protecting the rights of individuals."87
In this case, the Summary Deportation Order was issued by the BOC in the exercise of its authority under Office
Memorandum Order No. 34, and not in the exercise of its appellate jurisdiction of BSI decisions. There is no law nor
rule which provides that a Summary Deportation Order issued by the BOC in the exercise of its authority becomes
final after one year from its issuance,88 or that the aggrieved party is barred from filing a motion for a reconsideration
of any order or decision of the BOC. The Rules of Court may be applied in a suppletory manner to deportation
proceedings89 and under Rule 37, a motion for reconsideration of a decision or final order may be filed by the
aggrieved party.
Neither is there any law nor rule providing that the BOC, composed of new members, cannot revise a Summary
Deportation Order previously issued by a different body of Commissioners. The BOC that issued the Summary
Deportation Order and the BOC which resolved the respondent’s Urgent Motion for Reconsideration are one and the
same government entity, with the same powers and duties regardless of its membership. Similarly, an RTC judge
who replaces another judge who presided over a case may review the judgment or order of his predecessor as long
as the said judgment or order has not as yet become final or executory. The act subject of review is not the act of
the judge but the act of the court.
The petitioner’s contention that it failed to resolve the respondent’s motion for reconsideration because of the
change of administration in the BOC was branded by the CA as flimsy, if not bordering on the absurd:
Firstly, it was issued three days (June 14, 2002) after petitioner filed this instant petition on June 11, 2002 or almost
seven years from the time the motion for reconsideration was filed;
Secondly, respondent’s counsel’s excuse that it took such time to resolve it because it was only later that the motion
for reconsideration was discovered because of change of administration, is flimsy, if not bordering on the absurd;90
The Issuance of a New and Regular
Passport to the Respondent
Rendered the Summary
Deportation Order Moot and
Academic, and the Omnibus
Resolution of the BOC Lacking
in Legal Basis
We agree with the petitioner that a foreign embassy’s cancellation of the passport it had issued to its citizens, or its
refusal to issue a new one in lieu of a passport that has expired, will result in the loss of the alien’s privilege to stay
in this country and his subsequent deportation therefrom. But even the BOC asserted in its Summary Deportation
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Order that an embassy’s issuance of a new passport to any of its citizens may bar the latter’s deportation, citing the
resolution of this Court in Schonemann v. Commissioner Santiago.91
Irrefragably, Commissioner Verceles was mandated to cause the arrest of the respondent preparatory to his
deportation from the Philippines. However, there was no fixed period in the Order within which to comply with the
same. The Commissioner is not mandated to deport an alien immediately upon receipt of the BOC’s deportation
order. It is enough that the Commissioner complies with the Order within a "reasonable time," which, in Mejoff v.
Director of Prisons,92 we held to connote as follows:
The meaning of "reasonable time" depends upon the circumstances, specially the difficulties of obtaining a passport,
the availability of transportation, the diplomatic arrangements with the governments concerned and the efforts
displayed to send the deportee away; but the Court warned that "under established precedents, too long a detention
may justify the issuance of a writ of habeas corpus.
In this case, the BOC had yet to act on the respondent’s Urgent Motion for Reconsideration. The respondent was
also given a chance to secure a clearance and a new passport with the German Embassy. After all, the possibility
that the German Embassy would renew the respondent’s passport could not be ruled out. This was exactly what
happened: the German Embassy issued a new passport to the respondent on March 12, 1996 after the German
District Court dismissed the case for physical injuries. Thus, the respondent was no longer an undocumented alien;
nor was he an undesirable one for that matter.
The petitioner even admits that there is no longer a legal or factual basis to disqualify the respondent from remaining
in the country as a permanent resident. Yet, the OSG insists that he has to be deported first so that the BOC’s
Summary Deportation Order could be implemented. This contention was rejected by the CA, thus:
During the hearing of petitioner’s prayer for issuance of a writ of preliminary injunction before Us, respondent’s
counsel from the Office of the Solicitor General had the occasion to manifest in open court that the State has no
opposition to petitioner’s stay in the country provided he first leave and re-enter and re-apply for residency if only to
comply with the Summary Deportation Order of 1995. That, to Our mind, seems preposterous, if not ridiculous. An
individual’s human rights and rights to freedom, liberty and self-determination recognize no boundaries in the
democratic, free and civilized world. Such rights follow him wherever he may be. If presently, there is no factual or
legal impediment to disqualify petitioner in his stay in the country, other than allegedly those relied upon in the
Summary Deportation Order of 1995 (as hereinbefore discussed, had ceased to exist), requiring petitioner to leave
the country and re-enter and re-apply for residency makes little sense or no sense at all, more so, in the case of
petitioner who, for many years past, had lived herein and nurtured a family that is Filipino.
Thus, opined, We, therefore, believe and hereby rule, that there is presently every reason to enjoin/prohibit the
Bureau of Immigration, respondent Commissioner Domingo in particular, from presently deporting petitioner.93
We agree with the Court of Appeals. The Summary Deportation Order had been rendered moot and academic upon
the German Embassy’s issuance of a new passport to the respondent. The respondent had been in the Philippines
as a permanent resident since July 18, 1986, and had married a Filipino citizen, with whom he has two children. He
is not a burden to the country nor to the people of Palawan. He put up, and has been managing, the Bavaria
Restaurant with about 30 employees. He has no pending criminal case; nor does he have any derogatory record.
The respondent was allowed by then Immigration Commissioner Verceles to renew his passport and was given time
to secure a clearance from the German Embassy. The respondent was able to do so. The case against him for
physical injuries was dismissed by the German District Court. Thus, the inceptual basis for the respondent’s
deportation had ceased to exist.
The power to deport is a police matter against undesirable aliens, whose presence in the country is found to be
injurious to the public good. We believe that the deportation of the respondent late in the day did not achieve the
said purpose. The petitioner admitted that there is no longer a factual and legal basis to disqualify the respondent
from staying in the country. He is not an undesirable alien; nor is his presence in the country injurious to public good.
He is even an entrepreneur and a productive member of society.
Arrest, detention and deportation orders of aliens should not be enforced blindly and indiscriminately, without regard
to facts and circumstances that will render the same unjust, unfair or illegal.94 To direct the respondent to leave the
country first before allowing him re-entry is downright iniquitous.95 If the respondent does leave the country, he would
thereby be accepting the force and effect of the BOC’s Summary Deportation Order with its attendant infirmities. He
will thereby lose his permanent resident status and admit the efficacy of the cancellation of his permanent resident
visa. Moreover, his entry into the country will be subject to such conditions as the petitioner may impose.
The deportation of an alien is not intended as a punishment or penalty. But in a real sense, it is. In Bridges v.
1âwphi1
Wixon,96 Mr. Justice Murphy declared that the impact of deportation upon the life of an alien is often as great if not
greater than the imposition of a criminal sentence. In dealing with deportation, there is no justifiable reason for
disregarding the democratic and human tenets of our legal system and descending to the practices of despotism. As
Justice Brewer opined in Fong Yue Ting v. United States,97 deportation is a punishment because it requires first, an
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arrest, a deprivation of liberty and second, a removal from home, from family, from business, from property. To be
forcibly taken away from home, family, business and property and sent across the ocean to a distant land is
punishment; and that oftentimes is most severe and cruel. It would be putting salt on the respondent’s woes
occasioned by the BOC’s ineptitude. Considering the peculiar backdrop and the equities in this case, the
respondent’s deportation and the cancellation of his permanent resident visa as a precondition to his re-entry into
this country is severe and cruel; it is a form of punishment.

Our ruling in Vivo v. Cloribel,98 has no application in this case, precisely because the factual milieu here is entirely
different. In that case, the Commissioner of Immigration required the respondents to leave the country on or before
September 12, 1962, because their stay in the country as approved by the Secretary of Justice had been cancelled.
Our ruling in Bing v. Commission on Immigration,99 even buttresses the case for the respondent since we ruled
therein that an alien entitled to a permanent stay cannot be deported without being accorded due notice and
hearing.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

Footnotes
1
Penned by Associate Justice Edgardo F. Sundiam, with Associate Justices Portia Aliño-Hormachuelos and
Elvi John S. Asuncion concurring.
2
Immigration Commissioner Leandro T. Verceles, Deputy Commissioner Joseph Lopez and Deputy
Commissioner Edgar L. Mendoza.
3
Commissioner Andrea D. Domingo, Associate Commissioners Arthel B. Caronongan, Daniel C. Cueto and
Orlando V. Dizon.
4
Rollo, p. 167.
5
Id. at 150.
6
Id. at 151.
7
Id. at 94.
8
Id. at 95.
9
Id. at 88, 171.
10
Id. at 173.
11
Id. at 60.
12
Id. at 59.
13
Id. at 60-61.
14
Id. at 60.
15
Id. at 163.
16
Id. at 83-86.
17
Id. at 84-85.
18
Id. at 164-165.
19
Id. at 163.
20
Id. at 93.
21
Id. at 88.

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2/1/24, 7:49 PM G.R. No. L-29646
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29646 November 10, 1978
MAYOR ANTONIO J. VILLEGAS, petitioner,
vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.
Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for petitioner.
Sotero H. Laurel for respondents.
FERNANDEZ, J.:
This is a petition for certiorari to review tile decision dated September 17, 1968 of respondent Judge Francisco Arca
of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive portion of winch reads.
Wherefore, judgment is hereby rendered in favor of the petitioner and against the respondents,
declaring Ordinance No. 6 37 of the City of Manila null and void. The preliminary injunction is made
permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.
(SGD.) FRANCISCO ARCA
Judge1
The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22, 1968 and
signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2
City Ordinance No. 6537 is entitled:
AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF THE PHILIPPINES
TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF
TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA WITHOUT FIRST SECURING
AN EMPLOYMENT PERMIT FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3
4
Section 1 of said Ordinance No. 6537 prohibits aliens from being employed or to engage or participate in any
position or occupation or business enumerated therein, whether permanent, temporary or casual, without first
securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00 except persons
employed in the diplomatic or consular missions of foreign countries, or in the technical assistance programs of both
the Philippine Government and any foreign government, and those working in their respective households, and
members of religious orders or congregations, sect or denomination, who are not paid monetarily or in kind.
Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6) months or
fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment, upon conviction. 5
On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a petition with the
Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797, praying for the issuance of the
writ of preliminary injunction and restraining order to stop the enforcement of Ordinance No. 6537 as well as for a
judgment declaring said Ordinance No. 6537 null and void. 6
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In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance declared
null and void:
1) As a revenue measure imposed on aliens employed in the City of Manila, Ordinance No. 6537 is
discriminatory and violative of the rule of the uniformity in taxation;
2) As a police power measure, it makes no distinction between useful and non-useful occupations,
imposing a fixed P50.00 employment permit, which is out of proportion to the cost of registration and
that it fails to prescribe any standard to guide and/or limit the action of the Mayor, thus, violating the
fundamental principle on illegal delegation of legislative powers:
3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are thus, deprived of
their rights to life, liberty and property and therefore, violates the due process and equal protection
clauses of the Constitution.7
On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17, 1968 rendered
judgment declaring Ordinance No. 6537 null and void and making permanent the writ of preliminary injunction. 8
Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present petition on
March 27, 1969. Petitioner assigned the following as errors allegedly committed by respondent Judge in the latter's
decision of September 17,1968: 9
I
THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING
THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION.
II
RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF LAW IN
RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST UNDUE
DESIGNATION OF LEGISLATIVE POWER.
III
RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN
RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE CONSTITUTION.
Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the ground that it
violated the rule on uniformity of taxation because the rule on uniformity of taxation applies only to purely tax or
revenue measures and that Ordinance No. 6537 is not a tax or revenue measure but is an exercise of the police
power of the state, it being principally a regulatory measure in nature.
The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal purpose is
regulatory in nature has no merit. While it is true that the first part which requires that the alien shall secure an
employment permit from the Mayor involves the exercise of discretion and judgment in the processing and approval
or disapproval of applications for employment permits and therefore is regulatory in character the second part which
requires the payment of P50.00 as employee's fee is not regulatory but a revenue measure. There is no logic or
justification in exacting P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of
the ordinance is to raise money under the guise of regulation.
The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid substantial
differences in situation among individual aliens who are required to pay it. Although the equal protection clause of
the Constitution does not forbid classification, it is imperative that the classification should be based on real and
substantial differences having a reasonable relation to the subject of the particular legislation. The same amount of
P50.00 is being collected from every employed alien whether he is casual or permanent, part time or full time or
whether he is a lowly employee or a highly paid executive
Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of his discretion.
It has been held that where an ordinance of a municipality fails to state any policy or to set up any standard to guide
or limit the mayor's action, expresses no purpose to be attained by requiring a permit, enumerates no conditions for
its grant or refusal, and entirely lacks standard, thus conferring upon the Mayor arbitrary and unrestricted power to
grant or deny the issuance of building permits, such ordinance is invalid, being an undefined and unlimited
delegation of power to allow or prevent an activity per se lawful. 10
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In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a government agency
power to determine the allocation of wheat flour among importers, the Supreme Court ruled against the
interpretation of uncontrolled power as it vested in the administrative officer an arbitrary discretion to be exercised
without a policy, rule, or standard from which it can be measured or controlled.
It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse permits of all classes
conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled discretion but legal
discretion to be exercised within the limits of the law.
Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the mayor in
the exercise of the power which has been granted to him by the ordinance.
The ordinance in question violates the due process of law and equal protection rule of the Constitution.
Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may withhold or
refuse it at will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of
livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an
alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of
livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both
aliens and citizens. 13
The trial court did not commit the errors assigned.
WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs.
SO ORDERED.
Barredo, Makasiar, Muñoz Palma, Santos and Guerrero, JJ., concur.
Castro, C.J., Antonio and Aquino, Fernando, JJ., concur in the result.
Concepcion, Jr., J., took no part.
Separate Opinions
TEEHANKEE, J., concurring:
I concur in the decision penned by Mr. Justice Fernandez which affirms the lower court's judgment declaring
Ordinance No. 6537 of the City of Manila null and void for the reason that the employment of aliens within the
country is a matter of national policy and regulation, which properly pertain to the national government officials and
agencies concerned and not to local governments, such as the City of Manila, which after all are mere creations of
the national government.
The national policy on the matter has been determined in the statutes enacted by the legislature, viz, the various
Philippine nationalization laws which on the whole recognize the right of aliens to obtain gainful employment in the
country with the exception of certain specific fields and areas. Such national policies may not be interfered with,
thwarted or in any manner negated by any local government or its officials since they are not separate from and
independent of the national government.
As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs. Earnshaw, 59 Phil. 129: "The City of
Manila is a subordinate body to the Insular (National Government ...). When the Insular (National) Government
adopts a policy, a municipality is without legal authority to nullify and set at naught the action of the superior
authority." Indeed, "not only must all municipal powers be exercised within the limits of the organic laws, but they
must be consistent with the general law and public policy of the particular state ..." (I McQuillin, Municipal
Corporations, 2nd sec. 367, P. 1011).
With more reason are such national policies binding on local governments when they involve our foreign relations
with other countries and their nationals who have been lawfully admitted here, since in such matters the views and
decisions of the Chief of State and of the legislature must prevail over those of subordinate and local governments
and officials who have no authority whatever to take official acts to the contrary.
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Separate Opinions
TEEHANKEE, J., concurring:
I concur in the decision penned by Mr. Justice Fernandez which affirms the lower court's judgment declaring
Ordinance No. 6537 of the City of Manila null and void for the reason that the employment of aliens within the
country is a matter of national policy and regulation, which properly pertain to the national government officials and
agencies concerned and not to local governments, such as the City of Manila, which after all are mere creations of
the national government.
The national policy on the matter has been determined in the statutes enacted by the legislature, viz, the various
Philippine nationalization laws which on the whole recognize the right of aliens to obtain gainful employment in the
country with the exception of certain specific fields and areas. Such national policies may not be interfered with,
thwarted or in any manner negated by any local government or its officials since they are not separate from and
independent of the national government.
As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs. Earnshaw, 59 Phil. 129: "The City of
Manila is a subordinate body to the Insular (National Government ...). When the Insular (National) Government
adopts a policy, a municipality is without legal authority to nullify and set at naught the action of the superior
authority." Indeed, "not only must all municipal powers be exercised within the limits of the organic laws, but they
must be consistent with the general law and public policy of the particular state ..." (I McQuillin, Municipal
Corporations, 2nd sec. 367, P. 1011).
With more reason are such national policies binding on local governments when they involve our foreign relations
with other countries and their nationals who have been lawfully admitted here, since in such matters the views and
decisions of the Chief of State and of the legislature must prevail over those of subordinate and local governments
and officials who have no authority whatever to take official acts to the contrary.
Footnotes
1 Annex "F", Petition, Rollo, p. 64.
2 Petition, Rollo, p. 28.
3 Annex "A", of Petition, Rollo, p. 37-38.
4 Section 1. It shall he unlawful for any person not a citizen of the Philippines to be employed in any
kind of position or occupation or allowed directly or indirectly to participate in the functions,
administration or management in any office, corporation, store, restaurant, factory, business firm, or
any other place of employment either as consultant, adviser, clerk, employee, technician, teacher,
actor, actress, acrobat, singer or other theatrical performer, laborer, cook, etc., whether temporary,
casual, permanent or otherwise and irrespective of the source or origin of his compensation or number
of hours spent in said office, store, restaurant, factory, corporation or any other place of employment, or
to engage in any kind of business and trade within the City of Manila, without first securing an
employment permit from the Mayor of Manila, and paying the necessary fee therefor to the City the City
Treasurer: PROVIDED, HOWEVER, That persons employed in diplomatic and consular missions of
foreign countries and in technical assistance programs agreed upon by the Philippine Government and
any foreign government, and those working in their respective households, and members of different
congregations or religious orders of any religion, sect or denomination, who are not paid either
monetarily or in kind shag be exempted from the provisions of this Ordinance.
5 Section 4. Any violation of this Ordinance shall upon conviction, be punished by imprisonment of not
less than three (3) months but not more than six (6) months or by a fine of not less than one hundred
pesos (P100.00) but not more than two hundred pesos (P200.00), or by both such fine and
imprisonment, in the discretion of the Court: PROVIDED, HOWEVER, That in case of juridical persons,
the President, the Vice-President or the person in charge shall be liable.
6 Annex "B", Petition, Rollo, p. 39.
7 Ibid
8 Annex "F", Petition, Rollo, pp. 75-83.
9 Petition, Rollo, p. 31.
10 People vs. Fajardo, 104 Phil. 443, 446.
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2/1/24, 7:49 PM G.R. No. L-63915
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL.,
respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which
they claimed had not been published as required by law. The government argued that while publication was
necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that
they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the
Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as
follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no binding
force and effect.
1
The petitioners are now before us again, this time to move for reconsideration/clarification of that decision.
Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general
applicability and those which are not; that publication means complete publication; and that the publication must be
made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an
advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise
provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject
decision was concurred in only by three justices and consequently not binding. This elicited a Reply 4 refuting these
arguments. Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder
in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that
issuances intended only for the internal administration of a government agency or for particular persons did not have
to be 'Published; that publication when necessary must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not supported by eight members of this Court. 5
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The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on the original petition and on the
instant motion, we have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers
to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This
clause does not mean that the legislature may make the law effective immediately upon approval, or on any other
date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day
period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate
concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days from its
publication in the Official Gazette but "one year after such publication." The general rule did not apply because it
was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is
that such omission would offend due process insofar as it would deny the public knowledge of the laws that are
supposed to govern the legislature could validly provide that a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result and they would be so not because of a failure to comply with
but simply because they did not know of its existence, Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be
communicated to the persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of course presupposes
that the law has been published if the presumption is to have any legal justification at all. It is no less important to
remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public
concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the
government.
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws
relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It
surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to
all the people. The subject of such law is a matter of public interest which any member of the body politic may
question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any
bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to
one individual, or some of the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed
by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by
the Constitution. administrative rules and regulations must a also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of that place. All presidential decrees must be published,
including even, say, those naming a public place after a favored individual or exempting him from certain
prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not
merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case
studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the
assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances
are not covered by this rule but by the Local Government Code.
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We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the
contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential
decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and
in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential
decree undeniably of general applicability and interest, was "published" by the Marcos administration. 7 The evident
purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the Official
Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely acknowledged the need for due publication without
indicating where it should be made. 11 It is therefore necessary for the present membership of this Court to arrive at
a clear consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its
erratic releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the
function of communicating, the laws to the people as such periodicals are more easily available, have a wider
readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or
authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The
Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has
not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and
apply the law as conceived and approved by the political departments of the government in accordance with the
prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the
publication of laws must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law
pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law
could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as
required. This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is
untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the
acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our
country is to remain democratic, with sovereignty residing in the people and all government authority emanating
from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their delegates
and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This
they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from
their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I would
like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I took a strong stand against

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Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
EN BANC
G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in
his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of Manila, HON.
ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C.
OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON.
ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON.
BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON.
VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V.
ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON.
FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE,
JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON.
LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of Manila,
Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if
performed by someone else, who would be well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is
foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not
hesitate to "make the hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional
guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the
test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the
reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower
court),3 is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
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Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of
operating hotels, motels, hostels and lodging houses.5 It built and opened Victoria Court in Malate which was
licensed as a motel although duly accredited with the Department of Tourism as a hotel.6 On 28 June 1993, MTDC
filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining
Order7 (RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo
S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed
that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared
invalid and unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the said
Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING
CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-
MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person,
partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr.
Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing
certain forms of amusement, entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect
the social and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited
from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for
the operation of business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated
in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within
which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
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6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family
entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and
theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for in the zoning
ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor
repair shop, gasoline service station, light industry with any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion
of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-in-
charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation
and conviction, the premises of the erring establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its enumeration of
prohibited establishments, motels and inns such as MTDC's Victoria Court considering that these were not
establishments for "amusement" or "entertainment" and they were not "services or facilities for entertainment," nor
did they use women as "tools for entertainment," and neither did they "disturb the community," "annoy the
inhabitants" or "adversely affect the social and moral welfare of the community."11
MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1) The City
Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv)12 of the Local Government Code of
1991 (the Code) grants to the City Council only the power to regulate the establishment, operation and maintenance
of hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2) The Ordinance is void
as it is violative of Presidential Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate
area as a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of
police power as the compulsory closure of the motel business has no reasonable relation to the legitimate municipal
interests sought to be protected; (4) The Ordinance constitutes an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its enactment; (5) The Ordinance violates MTDC's
constitutional rights in that: (a) it is confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City
Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to
extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal protection under the law as no
reasonable basis exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging
houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area but not outside of
this area.14
15
In their Answer dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the
power to "prohibit certain forms of entertainment in order to protect the social and moral welfare of the community"
as provided for in Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public
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dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate
such other events or activities for amusement or entertainment, particularly those which tend to disturb
the community or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of
the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the above-quoted
provision included the power to control, to govern and to restrain places of exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and
moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of Republic
Act No. 409,19 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila)20 which
reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. – The Municipal Board shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance
of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge
the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall
not exceed two hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for a
single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the
burden to prove its illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter
simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial
zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in
operation.23 The Ordinance also did not infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the Ermita-Malate area and other places in the
City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary
restraining order against the enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he
granted the writ of preliminary injunction prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners from
implementing the Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of
Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this
Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they are elevating
the case to this Court under then Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the
lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding that the questioned Ordinance
contravenes P.D. 49931 which allows operators of all kinds of commercial establishments, except those specified
therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made before the lower
court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and plenary power of
the State and the general welfare clause exercised by local government units provided for in Art. 3, Sec. 18 (kk) of
the Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that the
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Ordinance is a valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is
void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid exercise of
police power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful
business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-Malate area being its
home for several decades. A long-time resident, the Court witnessed the area's many turn of events. It relished its
glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila
and yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court
is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and
therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional
provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid,
it must not only be within the corporate powers of the local government unit to enact and must be passed according
to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the
supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the
precept that local government units are able to legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter.39
This relationship between the national legislature and the local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal
of the local government units, which cannot defy its will or modify or violate it.40
The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council
acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in
order to effectively accomplish and carry out the declared objects of their creation.41 This delegated police power is
found in Section 16 of the Code, known as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient
and effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote
full employment among their residents, maintain peace and order, and preserve the comfort and convenience
of their inhabitants.
Local government units exercise police power through their respective legislative bodies; in this case, the
sangguniang panlungsod or the city council. The Code empowers the legislative bodies to "enact ordinances,
approve resolutions and appropriate funds for the general welfare of the province/city/municipality and its inhabitants
pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the province/city/
municipality provided under the Code.42 The inquiry in this Petition is concerned with the validity of the exercise of
such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations
thereon; and is subject to the limitation that its exercise must be reasonable and for the public good.43 In the case at
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bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and
repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the people of the blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men.45
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 laws.46
Sec. 9. Private property shall not be taken for public use without just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of life, liberty or
property without due process of law. . . ."48
There is no controlling and precise definition of due process. It furnishes though a standard to which governmental
action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This
standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice,49
and as such it is a limitation upon the exercise of the police power.50
The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of
individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the
established principles of private rights and distributive justice; to protect property from confiscation by legislative
enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are
"persons" within the scope of the guaranty insofar as their property is concerned.52
This clause has been interpreted as imposing two separate limits on government, usually called "procedural due
process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of
notice and what form of hearing the government must provide when it takes a particular action.53
Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking
away a person's life, liberty, or property. In other words, substantive due process looks to whether there is a
sufficient justification for the government's action.54 Case law in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of scrutiny used.55 For example, if a law is in an area where only
rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then
the government will meet substantive due process only if it can prove that the law is necessary to achieve a
compelling government purpose.56
The police power granted to local government units must always be exercised with utmost observance of the rights
of the people to due process and equal protection of the law. Such power cannot be exercised whimsically,
arbitrarily or despotically57 as its exercise is subject to a qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of
Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required
by the legitimate demands of public interest or public welfare.58 Due process requires the intrinsic validity of the law
in interfering with the rights of the person to his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free
it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights, but the means adopted
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.60
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It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to
private property will not be permitted to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights62 a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the
Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the
Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila63 had already
taken judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila traceable
in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit
and thus become the ideal haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the
community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City
Council's police powers, the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to
the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals
and the eradication of the community's social ills can be achieved through means less restrictive of private rights; it
can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of
businesses or their conversion into businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se
protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills
of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like
which the City Council may lawfully prohibit,65 it is baseless and insupportable to bring within that classification
sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance
halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is
of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the
most innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of
the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral
sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for
that matter will not be exempt from the prohibition. Simply because there are no "pure" places where there are
impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence and
universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious
to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may
occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that
reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not
only be purged of its supposed social ills, it would be extinguished of its soul as well as every human activity,
reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinance may
to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a
thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct
that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums
and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish
even the proprietors and operators of "wholesome," "innocent" establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and
patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead
impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of
their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations;67 and it
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may even impose increased license fees. In other words, there are other means to reasonably accomplish the
desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs,
day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of
approval of the Ordinance within which "to wind up business operations or to transfer to any place outside the
Ermita-Malate area or convert said businesses to other kinds of business allowable within the area." Further, it
states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the
erring establishment shall be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty
and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right
to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint
of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common welfare."68 In accordance
with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will;
to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty"
must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes personal decisions
relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the
respect the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court
explained:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At
the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of the
mystery of human life. Beliefs about these matters could not define the attributes of personhood where they
formed under compulsion of the State.71
Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of the Ordinance
may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in
intimate sexual conduct within the motel's premisesbe it stressed that their consensual sexual behavior does not
contravene any fundamental state policy as contained in the Constitution.72 Adults have a right to choose to forge
such relationships with others in the confines of their own private lives and still retain their dignity as free persons.
The liberty protected by the Constitution allows persons the right to make this choice.73 Their right to liberty under
the due process clause gives them the full right to engage in their conduct without intervention of the government,
as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include
privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedomit is the
most comprehensive of rights and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect.
As the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built.
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He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be
justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop
short of certain intrusions into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise
restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not
to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not
diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for
their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their
choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial
use of its property.77 The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the
Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the
use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized
as a taking of the property without just compensation.78 It is intrusive and violative of the private property rights of
individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use
without just compensation." The provision is the most important protection of property rights in the Constitution. This
is a restriction on the general power of the government to take property. The constitutional provision is about
ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about
loss spreading. If the government takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole.79
There are two different types of taking that can be identified. A "possessory" taking occurs when the government
confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no
reasonable economically viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if government
regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all
cases there must be an exercise of eminent domain and compensation to support the act. While property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking.
In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by
general propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when
regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and
fairness require that the economic loss caused by public action must be compensated by the government and thus
borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the
public action.83
What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no
reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.84 A
regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of
view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the
land make the use prohibitable.85 When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a
taking.86
A regulation which denies all economically beneficial or productive use of land will require compensation under the
takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial
use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's
economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed
expectations and the character of government action. These inquiries are informed by the purpose of the takings
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clause which is to prevent the government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a
substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the
owner.88
The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months from its approval
within which to "wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert
said businesses to other kinds of business allowable within the area." The directive to "wind up business operations"
amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory.
Unless the owner converts his establishment to accommodate an "allowed" business, the structure which housed
the previous business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise
leave the entire establishment idle. Consideration must be given to the substantial amount of money invested to
build the edifices which the owner reasonably expects to be returned within a period of time. It is apparent that the
Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable
expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed
businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in
Section 4 of the Ordinance is also equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate
area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the
owner to build another establishment solely from his coffers. The proffered solution does not put an end to the
"problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant
or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private
property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The
burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent
violation should be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a
valid exercise of police power, which limits a "wholesome" property to a use which can not reasonably be made of it
constitutes the taking of such property without just compensation. Private property which is not noxious nor
intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no
support in the principles of justice as we know them. The police powers of local government units which have
always received broad and liberal interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It needs restating that the
property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose
while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore
"wholesome."89 If it be of public benefit that a "wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private
property for public use.90
Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or
guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set
forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the
mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make
possible abuses in its execution, depending upon no conditions or qualifications whatsoever other than the
unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are
unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement could
be secured.91
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify
the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an
opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court struck down an
ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by." The ordinance was nullified as it imposed no standard at
all "because one may never know in advance what 'annoys some people but does not annoy others.' "
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Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the
community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." The cited
case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in
carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process
clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a
sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which
amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we
take a resolute stand to uphold the constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the ill-
considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as
well as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of motel owners were among the three groups of businesses
that filed separate suits challenging the ordinance. The motel owners asserted that the city violated the due process
clause by failing to produce adequate support for its supposition that renting room for fewer than ten (10) hours
resulted in increased crime and other secondary effects. They likewise argued than the ten (10)-hour limitation on
the rental of motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first
contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a study
which the city considered, was adequate to support the city's determination that motels permitting room rentals for
fewer than ten (10 ) hours should be included within the licensing scheme. As regards the second point, the Court
held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those
bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a
critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it needs pointing
out, is also different from this case in that what was involved therein was a measure which regulated the mode in
which motels may conduct business in order to put an end to practices which could encourage vice and immorality.
Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not
prohibit motels. The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed
power to prohibit.97
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and
personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise
of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to
give undue favor to some and unjustly discriminate against others.98 The guarantee 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.99 The "equal protection of the laws is a pledge of the protection of equal laws."100 It limits
governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their
property is concerned.101
The Court has explained the scope of the equal protection clause in this wise:
… What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: "The ideal situation
is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only
thus could chance and favor be excluded and the affairs of men governed by that serene and impartial
uniformity, which is of the very essence of the idea of law." There is recognition, however, in the opinion that
what in fact exists "cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not
take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning
that disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the
end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may
under such 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." Classification is thus not ruled out, it being
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sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons
under similar circumstances or that all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot
be allowed. For the principle is that equal protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may
operate only on some and not all of the people without violating the equal protection clause.103 The classification
must, as an indispensable requisite, not be arbitrary. 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.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging
houses or other similar establishments. By definition, all are commercial establishments providing lodging and
usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension
houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as
similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate
area but not outside of this area. A noxious establishment does not become any less noxious if located outside the
area.
The standard "where women are used as tools for entertainment" is also discriminatory as prostitutionone of the
hinted ills the Ordinance aims to banishis not a profession exclusive to women. Both men and women have an
equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when
men are in harness? This discrimination based on gender violates equal protection as it is not substantially related
to important government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate,
and not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels,
hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and
transports . . . .
While its power to regulate the establishment, operation and maintenance of any entertainment or amusement
facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the
Code, which reads as follows:
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Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate
such other events or activities for amusement or entertainment, particularly those which tend to disturb
the community or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of
the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and
other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to
promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court in
Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes
the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban which
prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to
regulate the same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that they were modified by the Code vesting upon City
Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4
(vii). Its powers to regulate, suppress and suspend "such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of
amusement or entertainment in order to protect the social and moral welfare of the community" are stated in the
second and third clauses, respectively of the same Section. The several powers of the City Council as provided in
Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to
justify being put together in a single enumeration or paragraph.111 These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and
prohibition.112
The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to
regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be
included as among "other events or activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City
Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily
implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are
to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers
must be construed against the City Council.113 Moreover, it is a general rule in statutory construction that the express
mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is
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particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or
punishments, or otherwise come under the rule of strict construction.114
The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of
the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the
ruling of the Court in People v. Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised
Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it
can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing
thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general power
granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the
provision of section 2242 (g), would be to make the latter superfluous and nugatory, because the power to
prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily
prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or
later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter,
which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative
will.116 If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the
legislative will which must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those
of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general
classes: those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of
the two can remain in force and those which occur when an act covers the whole subject of an earlier act and is
intended to be a substitute therefor. The validity of such a repeal is sustained on the ground that the latest
expression of the legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners'
interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the
Charter stating such must be considered repealed by the Code as it is at variance with the latter's provisions
granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects
the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It
can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a
legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A
motel is not per se a nuisance warranting its summary abatement without judicial intervention.119
Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in
another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in
this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual
drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of
houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain
money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or publications, and such other
activities inimical to the welfare and morals of the inhabitants of the city;
. . .
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If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments
enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of
the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these
establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of
Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these
establishments may only be regulated in their establishment, operation and maintenance.

It is important to distinguish the punishable activities from the establishments themselves. That these
establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131
under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics,
sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in
paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable diversion and
entertainment," "synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include
"theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain
oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code considers these
establishments as legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which
means that words in different parts of a statute must be referred to their appropriate connection, giving to each in its
place, its proper force and effect, and, if possible, rendering none of them useless or superfluous, even if strict
grammatical construction demands otherwise. Likewise, where words under consideration appear in different
sections or are widely dispersed throughout an act the same principle applies.120

Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly
argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The
decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or
open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or
funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law.121
As succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122

The requirement that the enactment must not violate existing law explains itself. Local political subdivisions
are able to legislate only by virtue of a valid delegation of legislative power from the national legislature
(except only that the power to create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As
delegates of the Congress, the local government units cannot contravene but must obey at all times the will of
their principal. In the case before us, the enactment in question, which are merely local in origin cannot
prevail against the decree, which has the force and effect of a statute.123

Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already
been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such
presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the
ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy
or is unreasonable, oppressive, partial, discriminating or in derogation of a common right.124

Conclusion

All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It
is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation;
it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be
forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and
void.

Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of the public
for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the
full endorsement of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the enactment of the
Ordinance has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City
Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their
transfer or conversion without infringing the constitutional guarantees of due process and equal protection of laws
not even under the guise of police power.

WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring the Ordinance
void is AFFIRMED. Costs against petitioners.

SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
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2/1/24, 7:51 PM G.R. No. 132248
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
SECOND DIVISION
G.R. No. 132248 January 19, 2000
HON. ERLINDA C. PEFIANCO, in her capacity as Secretary of the Department of Education, Culture and
Sports, petitioner,
vs.
MARIA LUISA C. MORAL, respondent.
BELLOSILLO, J.:
SECRETARY ERLINDA C. PEFIANCO of the Department of Education, Culture and Sports (DECS) seeks to nullify
through this petition for review the Decision of the Court of Appeals1 dismissing the certiorari filed by then DECS
Secretary Ricardo T. Gloria for lack of merit, as well as its Resolution dated 13 January 1998 denying
reconsideration thereof.
1âwphi1.nêt
On 26 July 1994 former DECS Secretary Ricardo T. Gloria filed a complaint against respondent Maria Luisa C.
Moral, then Chief Librarian, Catalog Division, of the National Library for dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service. The complaint charged respondent Moral with the pilferage of some
historical documents from the vaults of the Filipiniana and Asian Division (FAD) of the National Library which were
under her control and supervision as Division Chief and keeping in her possession, without legal authority and
justification, some forty-one (41) items of historical documents which were missing from the FAD vaults of the
National Library.
The DECS Investigating Committee conducted several hearings on the complaint. Atty. Jose M. Diaz, Special
Prosecutor from the Department of Justice, represented the DECS Secretary in the administrative case while
respondent was represented by her own private counsel. On 25 September 1996 Secretary Gloria issued a
resolution finding respondent "guilty of the administrative offenses of dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service, for the commission of pilferage of historical documents of the national
library, to the prejudice of the national library in particular, and the country in general." She was ordered dismissed
from the government service with prejudice to reinstatement and forfeiture of all her retirement benefits and other
remunerations.
On 30 September 1996 respondent received a copy of the resolution. Thereafter, or on 1 October 1996, she
received another resolution correcting the typographical errors found on the first resolution. Respondent did not
appeal the judgment.
On 2 October 1996 respondent filed a Petition for the Production of the DECS Investigation Committee Report
purportedly to "guide [her] on whatever action would be most appropriate to take under the circumstances."2 Her
petition was, however, denied.
Unfazed, she filed a Reiteration for DECS Committee Report and DECS Resolution dated September 25, 1996,
which Secretary Gloria similarly denied in his Order of 23 October 1996. Respondent moved for reconsideration but
the motion was merely "noted" in view of the warning in the 23 October 1996 Order that the denial of the request for
the production of the Investigation Committee Report was final.3 As earlier stated, respondent did not appeal the
Resolution dated 30 September 1996 dismissing her from the service. Instead, she instituted an action for
mandamus and injunction before the regular courts against Secretary Gloria praying that she be furnished a copy of
the DECS Investigation Committee Report and that the DECS Secretary be enjoined from enforcing the order of
dismissal until she received a copy of the said report.4
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Secretary Gloria moved to dismiss the mandamus case principally for lack of cause of action, but the trial court
denied his motion. Thus, he elevated the case to the Court of Appeals on certiorari imputing grave abuse of
discretion to the trial court. In its assailed Decision of 24 November 1997 the appellate court sustained the trial court
and dismissed Secretary Gloria's petition for lack of merit holding that —
FIRST. Petitioner Gloria acted prematurely, not having filed any motion for reconsideration of the assailed
order with the respondent judge before filing the instant petition to this Court. This constitutes a procedural
infirmity . . . . SECOND. Even if the aforesaid procedural defect were to be disregarded, the petition at hand,
nevertheless, must fail. The denial of the motion to dismiss is an option available to the respondent judge.
Such order is interlocutory and thus not appealable. The proper recourse of the aggrieved party is to file an
answer and interpose, as defenses, the objection(s) raised by him in said motion to dismiss, then proceed
with the trial and, in case of adverse decision, to elevate the entire case on appeal in due course.
His motion for reconsideration having been denied by the Court of Appeals on 13 January 1998, Secretary Gloria
filed the instant petition for review.
Meanwhile, Secretary Gloria was replaced by Secretary Erlinda C. Pefianco who was thereafter substituted in the
case for Secretary Gloria.
The issues before us are: whether the Court of Appeals erred in dismissing the petition for certiorari for failure of
petitioner to file a motion for reconsideration of the order denying the motion to dismiss, and in holding that the trial
court did not commit grave abuse of discretion in denying the motion to dismiss.
Petitioner contends that there is no need to file a motion for reconsideration as the trial court's order denying the
motion to dismiss is a patent nullity, and a motion for reconsideration would practically be a useless ceremony as
the trial court virtually decided the case, and that there is no law requiring the DECS to furnish respondent with a
copy of the Report of the DECS Investigation Committee so that the petition for mandamus has no leg to stand on
hence should have been dismissed for lack of cause of action.
Excepting thereto respondent argues that the denial of the motion to dismiss is interlocutory in nature as it did not
dispose of the case on the merits, and petitioner still has a residual remedy, i.e., to file an answer, thus her
substantive rights have not been violated as she contends; that respondent is clearly entitled to the remedy of
mandamus to protect her rights; and, that petitioner has not shown any law, DECS order or regulation prohibiting the
release of the petitioned documents for reasons of confidentiality or national security.
We grant the petition. Section 3, Rule 16, of the 1997 Rules of Civil Procedure mandatorily requires that the
resolution on a motion to dismiss should clearly and distinctly state the reasons therefor —
After hearing, the court may dismiss the action or claim, deny the motion or order the amendment of the
pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor (Emphasis supplied).
Clearly, the above rule proscribes the common practice of perfunctorily denying motions to dismiss "for lack of
merit." Such cavalier disposition often creates difficulty and misunderstanding on the part of the aggrieved party in
taking recourse therefrom and likewise on the higher court called upon to resolve the issue, usually on certiorari.
The challenged Order of the trial court dated 23 April 1997 falls short of the requirements prescribed in Rule 16. The
Order merely discussed the general concept of mandamus and the trial court's jurisdiction over the rulings and
actions of administrative agencies without stating the basis why petitioner's motion to dismiss was being denied. We
are reproducing hereunder for reference the assailed Order —
This treats of the Motion to Dismiss filed by respondent Gloria on 14 March 1997 to which petitioner filed their
(sic) opposition on April 8, 1997.
Respondent premised his motion on the following grounds: (a) Mandamus does not lie to compel respondent
DECS Secretary to release the Report of the DECS Investigating Committee because the Petition does not
state a cause of action; (b) The DECS Resolution dismissing petitioner is legal and valid, and therefore, the
writ of preliminary injunction cannot be granted to enjoin its execution; while petitioner alleged among others
that she has no plain, speedy and adequate remedy in the ordinary course of law.
Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its main
objective. "Purely ministerial" are acts to be performed in a given state of facts, in a prescribed manner in
obedience to the mandate of legal authority without regard to the exercise of his own judgment upon the
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propriety or impropriety of the act done. While the discretion of a Constitutional Commission cannot be
controlled by mandamus . . . . the court can decide whether the duty is discretionary or ministerial . . . .
Generally, courts have no supervising power over the proceedings and actions of the administrative
departments of the government. This is generally true with respect to acts involving the exercise of judgment
or discretion, and finding of fact. Findings of fact by an administrative board or official, following a hearing, are
binding upon the courts and will not be disturbed except where the board or official has gone beyond his
statutory authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty
or with grave abuse of discretion or as when there is capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction as where the power is exercised in an arbitrary or despotic manner by reason
of passion, prejudice or personal hostility amounting to an evasion of positive duty, or to a virtual refusal to
perform the duty enjoined, or to act at all in contemplation of law . . . .
WHEREFORE, in regard to the foregoing, the motion to dismiss by herein respondent is hereby denied for
lack of merit and is hereby ordered to file its (sic) responsive pleadings within ten (10) days from receipt of
this Order. Copy furnished petitioner who is likewise given ten (10) days to submit his (sic) comment or
opposition.
Indeed, we cannot even discern the bearing or relevance of the discussion therein on mandamus, vis-a-vis the
ground relied upon by petitioner in her motion to dismiss, i.e., lack of cause of action, and the dispositive portion of
the order. The order only confused petitioner and left her unable to determine the errors which would be the proper
subject of her motion for reconsideration. Judges should take pains in crafting their orders, stating therein clearly
and comprehensively the reasons for their issuance, which are necessary for the full understanding of the action
taken. Where the court itself has not stated any basis for its order, to be very strict in requiring a prior motion for
reconsideration before resort to higher courts on certiorari may be had, would be to expect too much. Since the
judge himself was not precise and specific in his order, a certain degree of liberality in exacting from petitioner strict
compliance with the rules was justified.
Ordinarily, certiorari will not lie unless the lower court, through a motion for reconsideration, has been given an
opportunity to correct the imputed errors on its act or order. However, this rule is not absolute and is subject to well-
recognized exceptions. Thus, when the act or order of the lower court is a patent nullity for failure to comply with a
mandatory provision of the Rules; as in this case, a motion for reconsideration may be dispensed with and the
aggrieved party may assail the act or order of the lower court directly on certiorari.5
On the second issue, the nature of the remedy of mandamus has been the subject of discussions in several cases.
It is settled that mandamus is employed to compel the performance, when refused, of a ministerial duty, this being
its main objective. It does not lie to require anyone to fulfill a discretionary duty. It is essential to the issuance of a
writ of mandamus that petitioner should have a clear legal right to the thing demanded and it must be the imperative
duty of the respondent to perform the act required. It never issues in doubtful cases. While it may not be necessary
that the duty be absolutely expressed, it must nevertheless be clear. The writ will not issue to compel an official to
do anything which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he is
not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power
already possessed and to perform a duty already imposed.6
In her petition for mandamus, respondent miserably failed to demonstrate that she has a clear legal right to the
DECS Investigation Committee Report and that it is the ministerial duty of petitioner DECS Secretary to furnish her
with a copy thereof. Consequently, she is not entitled to the writ prayed for.
Primarily, respondent did not appeal to the Civil Service Commission the DECS resolution dismissing her from the
service.7 By her failure to do so, nothing prevented the DECS resolution from becoming final and executory.
Obviously, it will serve no useful purpose now to compel petitioner to furnish her with a copy of the investigation
report.
Moreover, there is no law or rule which imposes a legal duty on petitioner to furnish respondent with a copy of the
investigation report. On the contrary, we unequivocally held in Ruiz v. Drilon8 that a respondent in an administrative
case is not entitled to be informed of the findings and recommendations of any investigating committee created to
inquire into charges filed against him. He is entitled only to the administrative decision based on substantial
evidence made of record, and a reasonable opportunity to meet the charges and the evidence presented against
her during the hearings of the investigation committee. Respondent no doubt had been accorded these rights.
Respondent's assertion that the investigation report would be used "to guide [her] on what action would be
appropriate to take under the circumstances,"9 hardly merits consideration. It must be stressed that the disputed
investigation report is an internal communication between the DECS Secretary and the Investigation Committee,
and it is not generally intended for the perusal of respondent or any other person for that matter, except the DECS
Secretary. As correctly ruled by Secretary Gloria in his Order of 2 October 1996 —
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Respondent's (Moral) counsel is reminded that the Report of the DECS Investigating Committee is not an
integral part of the Decision itself . . . . [t]he report is an internal communication between the Investigating
Committee and the DECS Secretary, and, therefore, confidential until the latter had already read and used the
same in making his own determination of the facts and applicable law of the case, to be expressed in the
Decision he may make.
The Report remains an internal and confidential matter to be used as part — although not controlling — of the
basis for the decision. Only when the party adversely affected by the decision has filed and perfected an
appeal to the Civil Service Commission may all the records of the case, including the aforesaid Report be
forwarded to the CSC. In the latter appellate tribunal, the respondent's counsel may be allowed to read and/or
be given a copy of the Report to enable the appellant to file an intelligent and exhaustive appellant's Brief
Memorandum.
More importantly, the DECS resolution is complete in itself for purposes of appeal to the Civil Service Commission,
that is, it contains sufficient findings of fact and conclusion of law upon which respondent's removal from office was
grounded. This resolution, and not the investigation report, should be the basis of any further remedies respondent
might wish to pursue, and we cannot see how she would be prejudiced by denying her access to the investigation
report.
In fine, the trial court's Order of 23 April 1997 denying petitioner's motion to dismiss is not a mere error of judgment
as the Court of Appeals held, but a grave abuse of discretion amounting to lack or excess of jurisdiction because, to
capsulize, the Order is a patent nullity for failure to comply with the provisions of the rules requiring that a resolution
on a motion to dismiss should clearly and distinctly state the reasons therefor; and, respondent is clearly not entitled
to the writ of mandamus as she did not appeal the DECS resolution dismissing her from service, and there is no law
or rule which imposes a ministerial duty on petitioner to furnish respondent with a copy of the investigation report,
hence her petition clearly lacked a cause of action. In such instance, while the trial court's order is merely
interlocutory and non-appealable, certiorari is the proper remedy to annul the same since it is rendered with grave
abuse of discretion.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 24 November 1997 sustaining the
trial court's denial of petitioner's motion to dismiss, as well as its Resolution dated 13 January 1998 denying
reconsideration, is REVERSED and SET ASIDE. The petition for mandamus filed by respondent before the court a
quo to compel petitioner to furnish her a copy of the DECS Investigation Committee Report is DISMISSED for want
of cause of action. 1âwphi1.nêt
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
Footnotes
1
CA-G.R. No. 44432, promulgated 24 November 1997.
2
Rollo, p. 40.
3
Rollo, p. 42.
4
Docketed as Civil Case No. 97-81493 entitled "Moral v. Gloria," and assigned to RTC-Br. 50, Manila.
5
See Regalado, Florenz D., Remedial Law Compendium, Vol. 1, 1997 Ed., pp. 710-711.
6
University of San Agustin, Inc. v. Court of Appeals, G.R. No. 100558, 7 March 1994, 230 SCRA 761.
7
P.D. No. 807, EO NO. 292, and Rule II, Sec. 1 of Memorandum Circular No. 44, Series of 1990, of the Civil
Service Commission, spell out the initial remedy of respondent against dismissal. These categorically provide
that the party aggrieved by a decision, ruling, order or action of an agency of the government involving
termination of services may appeal to the Civil Service Commission within fifteen (15) days from notice.
8
G.R. No. 101666, 9 June 1992, 209 SCRA 695.
9
Records, p. 44.
The Lawphil Project - Arellano Law Foundation
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2/1/24, 7:51 PM G.R. No. 211362
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 211362 February 24, 2015
FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the Philippine Military Academy, represented by his father
RENATO P. CUDIA, who also acts on his own behalf, and BERTENI CATALUNA CAUSING, Petitioners,
vs.
THE SUPERINTENDENT OF THE PHILIPPINE MILITARY ACADEMY (PMA), THE HONOR COMMITTEE (HC) OF
2014 OF THE PMA and HC MEMBERS, and the CADET REVIEW AND APPEALS BOARD (CRAB),
Respondents.
x-----------------------x
FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS ALDRIN JEFF P. CUDIA, and on her own behalf,
Petitioner-Intervenor.
DECISION
PERALTA, J.:
The true test of a cadet's character as a leader rests on his personal commitment to uphold what is morally and
ethically righteous at the most critical and trying times, and at the most challenging circumstances. When a cadet
must face a dilemma between what is true and right as against his security, well-being, pleasures and comfort, or
dignity, what is at stake is his honor and those that [define] his values. A man of an honorable character does not
think twice and chooses the fore. This is the essence of and. the Spirit of the Honor Code - it is championing truth
and righteousness even if it may mean the surrender of one's basic rights and privileges.1
The Procedural Antecedents
Six days prior to the March 16, 2014 graduation ceremonies of the Philippine Military Academy (PMA), petitioners
Renato P. Cudia, acting for himself and in behalf of his son, Cadet First Class Aldrin Jeff P. Cudia (Cadet JCL
Cudia), and Berteni Catalufta Causing filed this petition for certiorari, prohibition, and mandamus with application for
extremely urgent temporary restraining order (TRO).2
In a Resolution dated March 1 7, 2014, the Court denied the prayer for TRO and instead, required respondents to
file their comment on the petition.3
On March 25, 2014, Filipina P. Cudia, acting for herself and in behalf of her son Cadet 1 CL Cudia, filed a motion for
leave to intervene, attaching thereto the petition-in-intervention.4 Per Resolution dated March 31, 2014, the Court
granted the motion and resolved to await respondents' comment on the petition.5
A manifestation was then filed by petitioners on April 3, 2014, recommending the admission of the petition-in-
intervention and adopting it as an integral part of their petition.6 On May 20, 2014, petitioner-intervenor filed a
manifestation with motion for leave to admit the Final Investigation Report of the Commission on Human Rights
(CHR) dated April 25, 2014.7 The Report8 was relative to CHR-CAR Case No. 2014-0029 filed by the spouses
Renato and Filipina Cudia (Spouses Cudia), for themselves and in behalf of their son, against the PMA Honor
Committee (HC) members and Major Vladimir P. Gracilla (Maj. Gracilla)9 for violation of Cadet lCL Cudia's rights to
due process, education, and privacy of communication. Subsequently, on June 3, 2014, petitioners filed a motion for
leave to adopt the submission of the CHR Report.10 The manifestation was granted and the motion was noted by the
Court in its Resolution dated July 7, 2014.
After filing three motions for extension of time,11 respondents filed their Consolidated Comment12 on June 19, 2014.
In a motion, petitioner-intervenor filed a Reply, which was later adopted by petitioners.13 Submitted as Annex "A" of
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the Reply was a copy of the CHR Resolution dated May 22, 2014 regarding CHR-CAR Case No. 2014-0029.14 We
noted and granted the same on August 11, 2014 and October 13, 2014.
Petitioner-intervenor twice filed a manifestation with motion to submit the case for early resolution,15 which the Court
noted in a Resolution dated August 11, 2014 and October 3, 2014.16
The Facts
Cadet 1 CL Cudia was a member of Siklab Diwa Class of 2014 of the PMA, the country's premiere military academy
located at Fort Gregorio del Pilar in Baguio City. He belonged to the "A" Company and was the Deputy Baron of his
class. As claimed by petitioners and petitioner-intervenor (hereinafter collectively called "petitioners," unless
otherwise indicated), he was supposed to graduate with honors as the class salutatorian, receive the Philippine
Navy Saber as the top Navy cadet graduate, and be commissioned as an ensign of the Philippine Navy.
On November 14, 2013, the combined classes of the Navy and Air Force 1 CL cadets had a lesson examination
(LE) on Operations Research (OR432) under Dr. Maria Monica C. Costales (Dr. Costales) at the PMAFI Room. Per
published schedule from the Headquarters Academic Group, the 4th period class in OR432 was from 1 :30-3:00
p.m. (1330H-1500H), while the 5th period class in ENG412 was from 3:05-4:05 p.m. (1505H-1605H).
Five days after, Professor Juanita Berong (Prof. Berong) of the 5th period class issued a Delinquency Report (DR)
against Cadet 1 CL Cudia because he was "[/]ate for two (2) minutes in his Eng 412 class x x x. "17 Cadets 1 CL
Narciso, Arcangel, Miranda, Pontillas, Diaz, Otila, and Dela Cruz were also reported late for five minutes.18
On December 4, 2013, the DRs reached the Department of Tactical Officers. They were logged and transmitted to
the Company Tactical Officers ( CTO) for explanation of the concerned cadets. Two days later, Cadet lCL Cudia
received his DR.
In his Explanation of Report dated December 8, 2013, Cadet lCL Cudia reasoned out that: "I came directly from
OR432 Class. We were dismissed a bit late by our instructor Sir."19
On December 19, 2013, Major Rommel Dennis Hindang (Maj. Hindang), the CTO of Cadet 1 CL Cudia, meted out to
him the penalty of 11 demerits and 13 touring hours. Immediately, Cadet lCL Cudia clarified with Maj. Hindang his
alleged violation. The latter told him that the basis of the punishment was the result of his conversation with Dr.
Costales, who responded that she never dismissed her class late, and the protocol to dismiss the class 10-15
minutes earlier than scheduled. When he expressed his intention to appeal and seek reconsideration of the
punishment, he was · advised to put the request in writing. Hence, that same day, Cadet 1 CL Cudia addressed his
Request for Reconsideration of Meted Punishment to Maj. Benjamin L. Leander, Senior Tactical Officer (STO),
asserting:
I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H and
our 5th period class, which is ENG412, started 1500H also. Immediately after 4t period class, I went to
my next class without any intention of being late Sir.20
A day after, Maj. Leander instructed Maj. Hindang to give his comments on the request of Cadet 1 CL Cudia and to
indicate if there were other cadets belonging to the same section who were also late.
On December 28, 2013, Maj. Hindang submitted his reply to Maj. Leander pointing out that, based on his
investigation, the 4th period class was not dismissed late. As a result, Maj. Leander sustained the penalty imposed.
Petitioners alleged that Cadet 1 CL Cudia came to know of the denial of his request only on January 24, 2014 upon
inquiry with Maj. Leander.
Several days passed, and on January 7, 2014, Cadet lCL Cudia was informed that Maj. Hindang reported him to the
HC21 for violation of the Honor Code. The Honor Report stated:
Lying that is giving statement that perverts the truth in his written appeal, stating that his 4th period
class ended at l 500H that made him late in the succeeding class.22
Upon asking the HC Chairman, Cadet 1 CL Mike Anthony P. Mogol (Cadet 1 CL Mogol), as to what Maj. Hindang
meant in his Report, Cadet lCL Cudia learned that it was based on Maj. Hindang's conversations with their
instructors and classmates as well as his statement in the request for reconsideration to Maj. Leander. He then
verbally applied for and was granted an extension of time to answer the charge against him because Dr. Costales,
who could shed light on the matter, was on emergency leave.
On January 13, 2014, Dr. Costales sent text messages to Cadet lCL Cudia, conveying:
Gud pm cdt cudia. Mam belandres gave me bkground na. She told me its a report dated november.
When maj hindang ask me, no time referens. (04:25:11 P.M.)
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All the while I thot he was refering to dismisal during last day last december. Whc i told, i wud presume
they wil finish early bee its grp work. (04:29:21 P.M.)23
The next day, Cadets lCL Cudia and Arcangel approached Dr. Costales, who reaffirmed that she and Maj. Hindang
were not in the same time reference when the latter asked her.
Later, Cadet 1 CL Cudia submitted his letter of explanation on the Honor Report. He averred:
Sir, We had an LE that day (14 November 2013) in OR432 class. When the first bell rang (1455), I
stood up, reviewed my paper and submitted it to my instructor, Ms. Costales. After which, I and Cadet
lcl Arcangel asked for some query with regards (sic) to the deductions of our previous LE. Our
instructor gladly answered our question. She then told me that she will give the copy of our section
grade, so I waited at the hallway outside the ACAD5 office, and then she came out of the room and
gave me a copy of the grades. Cadet Arcangel, Cadet Narciso and I immediately went to our 5ti period
class which is ENG412.
With these statements, I would like to clarify the following:
1. How could this be lying?
2. What is wrong with the side of Maj. Hindang (why did he come up to that honor report)?
3. What are his assumptions?
I appeal, in the name of clarity, fairness and truth[,] that my case be reopened and carefully reviewed
for I did not violate the honor code/system, I can answer NO to both questions (Did I intend to deceive?
Did I intend to take undue advantage?) and for the following reasons:
1. The honor report of Maj. Hindang was already settled and finalized given the fact that no face-
to-face personal conversation with Ms. Costales was conducted to clarify what and when exactly
was the issue at hand.
2. Statements of the respondents support my explanation.
3. My explanation to my appeal to my DR (Request for reconsideration of meted punishment)
further supports my explanation in my delinquency report.
4. My understanding of the duration of the "CLASS" covers not just a lecture in a typical
classroom instruction but includes every transaction and communication a teacher does with her
students, especially that in our case some cadets asked for queries, and I am given instruction
by which (sic) were directly related to our CLASS. Her transaction and communication with our
other classmates may have already ended but ours extended for a little bit.
I agree and consider that because Cadet CUDIA is under my instruction to wait, and
the other cadets still have business with me, it is reasonable enough for him to say
that "Our class was dismissed a bit late" (dealing with matter of seconds or a minute
particularly 45 seconds to 1 minute and 30 seconds)
And with concern to (sic) OR432 class, I can say it ended on time (1500H).
(signed)
M COSTALES
w/ attached certification
5. I was transparent and honest in explaining the 2-minute delay and did not attempt to conceal
anything that happened or I did.
6. Furthermore, CPT DULA WAN PA, the Tactical Officer of Hawk Company[,] and I had a
conversation with regards (sic) to the same matter for which he can give important points of my
case.
7. Cadet lcl DIAZ "D" Co can also stand as a witness that I waited for Ms. Costales. 24
On January 15, 2014, the HC constituted a team to conduct a preliminary investigation on the reported honor
violation of Cadet 1 CL Cudia. The Foxtrot Company was designated as the investigating team and was composed
of Cadet 1 CL Hasigan as Presiding Officer, and Cadets 1 CL Mogol, lCL Raguindin, 2CL Gumilab, 2CL Saldua, 3CL
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Espejo, and 3CL Poncardas as members.25 Soon after, the team submitted its Preliminary Investigation Report
recommending that the case be formalized.
The formal investigation against Cadet 1 CL Cu di a then ensued. The Presiding Officer was Cadet 1 CL Rhona K.
Salvacion, while the nine (9) voting members were Cadets lCL Jairus 0. Fantin, lCL Bryan Sonny S. Arlegui, 1 CL
Kim Adrian R. Martal, 1 CL J eanelyn P. Cabrido, 1 CL ShuAydan G. Ayada, 1 CL Dalton John G. Lagura, 2CL
Renato A. Carifio, Jr., 2CL Arwi C. Martinez, and 2CL Niko Angelo C. Tarayao.26 Acting as recorders tasked to
document the entire proceedings were 4CL Jennifer A. Cuarteron and 3CL Leoncio Nico A. de Jesus 11.27 Those
who observed the trial were Cadets 1 CL Balmeo, Dag-uman, Hasigan, Raguindin, Paulino, Arcangel, and Narciso;
Cadets 2CL Jocson and Saldua, Jr.; and Cadet 3CL Umaguing.28
The first formal hearing started late evening of January 20, 2014 and lasted until early morning the next day. Cadet
lCL Cudia was informed of the charge against him, as to which he pleaded "Not Guilty." Among those who testified
were Cadet 1 CL Cudia, Maj. Hindang, and Cadets 1 CL Arcangel and Narciso. On the second night of the hearing
held on January 21, 2014, Cadet 1 CL Cudia again appeared and was called to the witness stand along with Cadets
Brit and Barrawed. Dr. Costales also testified under oath via phone on a loudspeaker. Deliberation among the HC
voting members followed. After that, the ballot sheets were distributed. The members cast their votes through secret
balloting and submitted their accomplished ballot sheets together with their written justification. The result was 8-1 in
favor of a guilty verdict. Cadet lCL Dalton John G. Lagura (Cadet lCL Lagura) was the lone dissenter. Allegedly,
upon the order ofHC Chairman Cadet 1 CL Mogol, the Presiding Officer and voting members went inside a chamber
adjoining the court room for further deliberation. After several minutes, they went out and the Presiding Officer
announced the 9-0 guilty verdict. Cadet 1 CL Cudia, who already served nine (9) touring hours, was then informed
of the unanimous votes finding him guilty of violating the Honor Code. He was immediately placed in the PMA
Holding Center until the resolution of his appeal.
On January 24, 2014, Cadet ICL Cudia filed a written appeal addressed to the HC Chairman, the full text of which
stated:
WRITTEN APPEAL
14 NOVEMBER 2013
This is when I was reported for "Late for two (2) minutes in Eng412 class", my explanation on this
delinquency report when I received it, is that "Our class was dismissed a (little) bit late and I came
directly from 4th period class ... etc". Knowing the fact that in my delinquency report, it is stated that
ENG412 classes started 1500H and I am late for two minutes, it is logical enough for I (sic) to interpret
it as "I came 1502H during that class". This is the explanation that came into my mind that time. (I just
cannot recall the exact words I used in explaining that delinquency report, but what I want to say is that
I have no intention to be late). In my statements, I convey my message as "since I was not the only one
left in that class, and the instructor is with us, I used the term "CLASS", I used the word "DISMISSED"
because I was under instruction (to wait for her to give the section grade) by the instructor, Ms.
Costales. The other cadets (lCL MIRANDA, lCL ARCANGEL) still have queries and business with her
that made me decide to use the word "CLASS", while the others who don't have queries and business
with her (ex: lCL NARCISO and 1 CL DIAZ) were also around.
Note:
The four named cadets were also reported late.
Reference: Para 171. 0. (Leaving the Classroom Prior to Dismissal Time)(Sec XVII, CCAFPR s2008)
It is stated in this reference that "Cadets shall not linger in the place of instruction after the section has
been dismissed. EXCEPT when told or allowed to do so by the instructor or by any competent authority
for official purposes. "
The instruction by Ms. Costales was given to me before the two bells rang (indicating the end of class
hour, 1500H). I waited for her for about 45 seconds to 1 minute and 30 seconds, that made me to
decide to write "a little bit late" in my explanation. Truly, the class ENDED 1500H but due to official
purpose (instruction by Ms. Costales to wait) and the conflict in academic schedule (to which I am not
in control of the circumstances, 4th PD class 1330H-1500H and 5th PD class 1500H-1 600H), and
since Ms. Costales, my other classmates, and I were there, I used the word "CLASS".
19 December 2013
I was informed that my delinquency report was awarded, 11 Demerits and 13 Touring hours. Not
because I don't want to serve punishment, but because I know I did nothing wrong, I obeyed
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instruction, and believing that my reason is justifiable and valid, that is why I approached our tactical
officer, MAJ HINDANG PAF, to clarify and ask why it was awarded that day.
In our conversation, he said that he had a phone call to my instructor and he even added that they
have a protocol to dismiss the class, 15 minutes or 10 minutes before 1500H. I explained:
Sir, I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H
and our 5th period class, which is ENG412, started 1500H also. Immediately after 4th period class, I
went to my next class without any intention of being late Sir.
These statements are supplementary to my explanation in my delinquency report, in here, I specified
the conflict in the schedule and again, I have no intention to be late. After explaining it further with these
statements, my tactical officer said that since I was reported in a written form, I should make an appeal
in a written form. Thinking that he already understood what I want to say, I immediately made an appeal
that day stating the words that I used in having conversation with him.29
Attached to the written appeal was a Certification dated January 24, 2014, wherein Dr. Costales attested:
1. That Cadet MIRANDA, ARCANGEL, [and] NARCISO was (sic) with Cadet CUDIA in making query about
their latest grades in OR432 and/or results of UEl outside the ACADS office. The following facts may explain
their queries on 14 November 2013:
a. That I held my class in the PMAFI room instead of room 104.
b. That OR432 releases grades every Wednesday and cadets are informed during Thursday, either in
class or posted grades in the bulletin board (grades released was [sic J based on the previous LEs:
latest LE before UE was Decision Trees).
c. That UE papers were already checked but not yet recorded due to (sic) other cadets have not taken
the UE. Cadets were allowed to verify scores but not to look at the papers.
d. Last 23 January 2014, Captain Dulawan clarified if indeed Cadet NARCISO and ARCANGEL verified
grades. The two cadets said that they verified something with me after the OR432 class and they were
with Cadet CUD IA. That the statements of the three (3) cadets are all the same and consistent, thus[,]
I honor that as true.
2. As to the aspect of dismissing late, I could not really account for the specific time that I dismissed the class.
To this date, I [cannot] really recall an account that is more than two (2) months earlier. According to my
records, there was a lecture followed by an LE during (sic) on 14 November 2013. To determine the time of
my dismissal, maybe it can be verified with the other members of class I was handling on that said date.30
Respondents contend that the HC denied the appeal the same day, January · 24, as it found no reason to conduct a
re-trial based on the arguments and evidence presented.31 Petitioners, however, claim that the written appeal was
not acted upon until the filing of the petition-in-intervention.32
From January 25 to February 7, 2014, respondents allege that the Headquarters Tactics Group (HTG) conducted an
informal review to check the findings of the HC. During the course of the investigation, Prof. Berong was said to
have confirmed with the Officer-in-Charge of the HC that classes started as scheduled (i.e., 3:05 p.m. or 1505H),
and that Cadet lCL Barrawed, the acting class marcher of ENG412, verified before the Commandant, Assistant
Commandant, and STO that the class started not earlier than scheduled.
Meantime, on February 4, 2014, the OIC of the HC forwarded the Formal Investigation Report to the Staff Judge
Advocate (SJA) for review. The next day, the SJA found the report to be legally in order.
On February 8, 2014, Colonel Rozzano D. Briguez (Col. Briguez), the Commandant of Cadets, affirmed the HC
findings and recommended to Vice Admiral Edgar Abogado, then PMA Superintendent, the separation from the PMA
of Cadet lCL Cudia for violation of the First Tenet of the Honor Code (Lying, pursuant to Sec. VII.12.b of the
CCAFPR S-2008). On the same date, Special Orders No. 26 was issued by the PMA Headquarters placing Cadet 1
CL Cudia on indefinite leave of absence without pay and allowances effective February 10, 2014 pending approval
of his separation by the AFPGHQ, barring him from future appointment and/or admission as cadet, and not
permitting him to qualify for any entrance requirements to the PMA. 33
Two days later, Vice Admiral Abogado approved the recommendation to dismiss Cadet 1 CL Cudia.
On February 13, 2014, Cadet lCL Cudia submitted a letter to the Office of the Commandant of Cadets requesting for
reinstatement by the PMA of his status as a cadet.34
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Four days passed, Annavee P. Cudia (Annavee ), the sister of Cadet 1 CL Cudia, posted his plight in her Face book
account. The day after, the Spouses Cudia gave a letter to Major General Oscar Lopez (Maj. Gen. Lopez), the new
PMA Superintendent, asking to recognize the 8-1 voting of the HC.35 Copies of which were furnished to the AFP
Chief of Staff and other concerned military officials. Subsequently, Maj. Gen. Lopez was directed to review Cadet
lCL Cudia's case. The latter, in turn, referred the matter to the Cadet Review and Appeals Board (CRAB).
On February 19, 2014, Cadet lCL Cudia made his personal appeal letter to Maj. Gen. Lopez. On even date, the AFP
Chief of Staff ordered a reinvestigation following the viral Facebook post of Annavee demanding the intervention of
the military leadership.
Petitioners claim that, on February 21, 2014, Special Order No. 1 was issued directing all PMA cadets to ostracize
Cadet 1 CL Cudia by not talking to him and by separating him from all activities/functions of the cadets. It is said that
any violation shall be a "Class 1" offense entailing 45 demerits, 90 hours touring, and 90 hours confinement. Cadet
1 CL Cudia was not given a copy of the order and learned about it only from the media.36 According to an alleged
news report, PMA Spokesperson Major Agnes Lynette Flores (Maj. Flores) confirmed the HC order to ostracize
Cadet 1 CL Cudia. Among his offenses were: breach of confidentiality by putting documents in the social media,
violation of the PMA Honor Code, lack of initiative to resign, and smearing the name of the PMA.37
On February 24, 2014, Cadet 1CL Cudia requested the CRAB for additional time, until March 4, 2014, to file an
appeal on the ground that his intended witnesses are in on-the-job training ( OJT).38 As additional evidence to
support his appeal, he also requested for copies of the Minutes of the HC proceedings, relevant documents
pertaining to the case, and video footages and recordings of the HC hearings.
The next day, Cadet 1 CL Cudia and his family engaged the services of the Public Attorney's Office (PAO) in Baguio
City.
The CRAB conducted a review of the case based on the following: (a) letter of appeal of the Spouses Cudia dated
February 18, 2014; (b) directive from the AFP-GHQ to reinvestigate the case; and ( c) guidance from Maj. Gen.
Lopez.
On February 26, 2014, Brigadier General Andre M. Costales, Jr. (Brig. Gen. Costales, Jr.), the CRAB Chairman,
informed Cadet lCL Cudia that, pending approval of the latter's request for extension, the CRAB would continue to
review the case and submit its recommendations based on whatever evidence and testimonies received, and that it
could not favorably consider his request for copies of the HC minutes, relevant documents, and video footages and
recordings of the HC hearings since it was neither the appropriate nor the authorized body to take action thereon.39
Subsequently, upon verbal advice, Cadet 1 CL Cudia wrote a letter to Maj. Gen. Lopez reiterating his request.40
Two days after, the Spouses Cudia filed a letter-complaint before the CHR-Cordillera Administrative Region (CAR)
Office against the HC members and Maj. Gracilla for alleged violation of the human rights of Cadet lCL Cudia,
particularly his rights to due process, education, and privacy of communication.41
On March 4, 2014, Cadet 1 CL Cudia, through the PAO, moved for additional time, until March 19, 2014, to file his
appeal and submit evidence. PAO also wrote a letter to AFP Chief of Staff General Emmanuel T. Bautista (Gen.
Bautista) seeking for immediate directive to the PMA to expeditiously and favorably act on Cadet 1CL Cudia's
requests.42
Exactly a week prior to the commencement exercises of Siklab Diwa Class, the following events transpired:
On March 10, 2014, Annavee sought the assistance of PAO Chief Public Attorney Persida V. Rueda-Acosta.43 On
the other hand, the CRAB submitted a report to the AFP-GHQ upholding the dismissal of Cadet 1 CL Cudia.44
On March 11, 2014, PAO received a letter from Maj. Gen. Lopez stating the denial of Cadet 1CL Cudia's requests
for extension of time to file an Appeal Memorandum in view of the ample time already given, and to be furnished
with a copy of relevant documents because of confidentiality and presumption of regularity of the HC proceedings.45
Cadet 1CL Cudia, through PAO, then filed an Appeal Memorandum46 before the CRAB.
On March 12, 2014, Spouses Cudia wrote a letter to President Benigno Simeon C. Aquino III (Pres. Aquino), who is
the Commander-in-Chief of the AFP, attaching thereto the Appeal Memorandum.47 On the same day, Special Orders
No. 48 was issued by the PMA constituting a Fact-Finding Board/Investigation Body composed of the CRAB
members and PMA senior officers to conduct a deliberate investigation pertaining to Cadet 1CL Cudia's Appeal
Memorandum.48 The focus of the inquiry was not just to find out whether the appeal has merit or may be considered
but also to investigate possible involvement of other cadets and members of the command related to the incident
and to establish specific violation of policy or regulations that had been violated by other cadets and members of the
HC.49
On March 13, 2014, the Cudia family and the Chief Public Attorney had a dialogue with Maj. Gen. Lopez. On March
14, 2014, the CHR-CAR came out with its preliminary findings, which recommended the following:
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a. For the PMA and the Honor Committee to respect and uphold the 8 Guilty - 1 Not guilty vote;
b. For the PMA and the Honor Committee to officially pronounce Cdt Cudia as Not Guilty of the charge filed
against him before the Honor Committee;
c. For the PMA to restore Cadet Cudia's rights and entitlements as a full-fledge graduating cadet and allow
him to graduate on Sunday, 16 March 2014;
d. For the PMA to fully cooperate with the CHR in the investigation of Cudia's Case.50
On March 15, 2014, Cadet 1CL Cudia and his family had a meeting with Pres. Aquino and Department of National
Defense (DND) Secretary Voltaire T. Gazmin. The President recommended that they put in writing their appeal,
requests, and other concerns. According to respondents, the parties agreed that Cadet 1 CL Cudia would not join
the graduation but it was without prejudice to the result of the appeal, which was elevated to the AFP Chief of Staff.
The President then tasked Gen. Bautista to handle the reinvestigation of the case, with Maj. Gen. Oscar Lopez
supervising the group conducting the review.
Four days after Siklab Diwa Class' graduation day, petitioner Renato S. Cudia received a letter dated March 11,
2014 from the Office of the AFP Adjutant General and signed by Brig. Gen. Ronald N. Albano for the AFP Chief of
Staff, affirming the CRAB' s denial of Cadet 1 CL Cudia' s appeal. It held:
After review, The Judge Advocate General, APP finds that the action of the PMA CRAB in denying the
appeal for reinvestigation is legally in order. There was enough evidence to sustain the finding of guilt
and the proprietary (sic) of the punishment imposed. Also, your son was afforded sufficient time to file
his appeal from the date he was informed of the final verdict on January 21, 2014, when the decision of
the Honor Committee was read to him in person, until the time the PMA CRAB conducted its review on
the case. Moreover, the continued stay of your son at the Academy was voluntary. As such, he
remained subject to the Academy's policy regarding visitation. Further, there was no violation of his
right to due process considering that the procedure undertaken by the Honor Committee and PMA
CRAB was consistent with existing policy. Thus, the previous finding and recommendation of the Honor
Committee finding your son, subject Cadet guilty of "Lying" and recommending his separation from the
Academy is sustained.
In view of the foregoing, this Headquarters resolved to deny your appeal for lack of merit.51 Thereafter,
the Fact-Finding Board/Investigating Body issued its Final Investigation Report on March 23, 2014
denying Cadet 1 CL Cudia's appeal.52 Subsequently, on April 28, 2014, the special investigation board
tasked to probe the case submitted its final report to the President.53 Pursuant to the administrative
appeals process, the DND issued a Memorandum dated May 23, 2014, directing the Office of AFP
Chief of Staff to submit the complete records of the case for purposes of DND review and
recommendation for disposition by the President.54
Meanwhile, on May 22, 2014, the CHR-CAR issued its Resolution with respect to CHR-CAR Case No. 2014-0029,
concluding and recommending as follows:
WHEREFORE, PREMISES CONSIDERED, the Commission on Human Rights-CAR Office finds
PROBABLE CAUSE FOR HUMAN RIGHTS VIOLATIONS against the officers and members of the
PMA Honor Committee and .. certain PMA officials, specifically for violations of the rights of CADET
ALDRIN JEFF P. CUDIA to dignity, due process, education, privacy/privacy of communication, and
good life.
IN VIEW OF THE FOREGOING, the CHR-CAR Office RESOLVED to indorse to competent authorities
for their immediate appropriate action on the following recommendations:
1. The Philippine Military Academy must set aside the "9-Guilty, 0-Not Guilty" verdict against
Cadet Aldrin Jeff P. Cudia, for being null and void; to uphold and respect the "8-Guilty, 1-Not
Guilty" voting result and make an official pronouncement of NOT GUILTY in favor of Cadet
Cudia;
2. The PMA, the AFP Chief of Staff, and the President in whose hands rest the ends of justice
and fate of Cadet Cudia, to:
2.1 officially proclaim Cadet Cudia a graduate and alumnus of the Philippine Military
Academy;
2.2 issue to Cadet Cudia the corresponding Diploma for the degree of Bachelors of
Science; and
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2.3 Issue to Cadet Cudia the corresponding official transcript 'of his academic records for
his BS degree, without conditions therein as to his status as a PMA cadet.
3. The Public Attorneys' Office to provide legal services to Cadet Cudia in pursuing
administrative, criminal and civil suits against the officers and members of the Honor Committee
named hereunder, for violation of the Honor Code and System and the Procedure in Formal
Investigation, dishonesty, violation of the secrecy of the ballot, tampering the true result of the
voting, perjury, intentional omission in the Minutes of substantive part of the formal trial
proceedings which are prejudicial to the interest of justice and Cadet Cudia's fundamental rights
to dignity, non-discrimination and due process, which led to the infringement of his right to
education and even transgressing his right to a good life.
3.1 Cdt lCL MIKE ANTHONY MOGUL, now 2nd Lt. of the AFP
3.2 Cdt lCL RHONA K. SALVACION, now 2nd Lt. of the AFP
3.3 Cdt 2CL ARWI C. MARTINEZ
3.4 Cdt 2CL RENATO A. CARINO, JR.
3.5 Cdt 2CL NIKOANGELOC. TARAYAO
3.6 Cdt lCL JEANEL YN P. CABRIDO, now 2nd Lt. of the AFP
3.7 Cdt lCL KIM ADRIAN R. MARTAL, now 2nd Lt. of the AFP
3.8 Cdt lCL JAIRUS 0. FANTIN, now 2nd Lt. of the AFP
3.9 Cdt lCL BRYAN SONNY S. ARLEGUI, now 2nd Lt. of the AFP
3.10 Cdt lCL DALTON JOHN G. LAGURA, now 2nd Lt. of the AFP
3.11 Cdt 1 CL BIANCHIHEIMER L. EDRA, now 2nd Lt. of the AFP
3.12 Cdt 4CL JENNIFER A. CUARTERON (recorder)
3.13 Cdt 3CL LEONCIO NICO A. DE JESUS II (record)
4. The Office of the AFP Chief of Staff and the PMA competent authorities should investigate and
file appropriate charges against Maj. VLADIMIR P. GRACILLA, for violation of the right to privacy
of Cadet Cudia and/or failure, as intelligence officer, to ensure the protection of the right to
privacy of Cudia who was then billeted at the PMA Holding Center;
5. The Office of the AFP Chief of Staff and PMA competent authorities should investigate Maj.
DENNIS ROMMEL HINDANG for his failure and ineptness to exercise his responsibility as a
competent Tactical Officer and a good father of his cadets, in this case, to Cadet Cudia; for
failure to respect exhaustion of administrative remedies;
6. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philppines,
the PMA Superintendent, to immediately cause the comprehensive review of all rules of
procedures, regulations, policies, including the so-called practices in the implementation of the
Honor Code; and, thereafter, adopt new policies, rules of procedures and relevant regulations
which are human-rights based and consistent with the Constitution and other applicable laws;
7. The Congress of the Philippines to consider the enactment of a law defining and penalizing
ostracism and discrimination, which is apparently being practiced in the PMA, as a criminal
offense in this jurisdiction;
8. His Excellency The President of the Philippines to certify as priority, the passage of an anti-
ostracism and/or anti-discrimination law; and
9. Finally, for the AFP Chief of Staff and the PMA authorities to ensure respect and protection of
the rights of those who testified for the cause of justice and truth as well as human rights of
Cadet Cudia.
RESOLVED FURTHER, to monitor the actions by the competent authorities on the foregoing CHR
recommendations.
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Let copy of this resolution be served by personal service or by substituted service to the complainants
(the spouses Renato and Filipina Cudia; and Aldrin Jeff P. Cudia), and all the respondents. Also, to the
PMA Superintendent, the AFP Chief of Staff, the Secretary of National Defense, His Excellency The
President of the Philippines, The Public Attorneys' Office.
SO RESOLVED.55
On June 11, 2014, the Office of the President sustained the findings of the AFP Chief of Staff and the CRAB. The
letter, which was addressed to the Spouses Cudia and signed by Executive Secretary Paquito N. Ochoa, Jr., stated
in whole:
This refers to your letters to the President dated 12 March 2014 and 26 March 2014 appealing for a
reconsideration of the decision of the Philippine Military Academy (PMA) Honor Committee on the case
of your son, Cadet 1 CL Aldrin Jeff Cudia.
After carefully studying the records of the case of Cadet Cudia, the decision of the Chief of Staff of the
Armed Forces of the Philippines (AFP), and the Honor Code System of the AFP Cadet Corps, this
Office has found no substantial basis to disturb the findings of the AFP and the PMA Cadet Review
Appeals Board (CRAB). There is no competent evidence to support the claim that the decision of the
Honor Committee members was initially at 8 "Guilty" votes and 1 "Not Guilty" vote. The lone affidavit of
an officer, based on his purported conversation with one Honor Committee member, lacks personal
knowledge on the deliberations of the said Committee and is hearsay at best.
Similarly, the initial recommendations of the Commission on Human Rights cannot be adopted as basis
that Cadet Cudia's due process rights were violated. Apart from being explicitly preliminary in nature,
such recommendations are anchored on a finding that there was an 8-1 vote which, as discussed
above, is not supported by competent evidence.
In the evaluation of Cadet Cudia's case, this Office has been guided by the precept that military law is
regarded to be in a class of its own, "applicable only to military personnel because the military
constitutes an armed organization requiring a system of discipline separate from that of civilians"
(Gonzales v. Abaya, G.R. No. 164007, 10 August 2005 citing Calley v. Callaway, 519 F. 2d 184 [1975]
and Orloff v. Willoughby, 345 US 83 [1953]). Thus, this Office regarded the findings of the AFP Chief,
particularly his conclusion that there was nothing irregular in the proceedings that ensued, as carrying
great weight.
Accordingly, please be informed that the President has sustained the findings of the AFP Chief and the
PMA CRAB.56
The Issues
To petitioners, the issues for resolution are:
I.
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING CADET FIRST CLASS
ALDRIN JEFF P. CUDIA FROM THE ACADEMY IN UTTER DISREGARD OF HIS RIGHT TO DUE PROCESS
CONSIDERING THAT:
A. Despite repeated requests for relevant documents regarding his case, Cadet First Class Aldrin Jeff Cudia
was deprived of his right to have access to evidence which would have proven his defense, would have totally
belied the charge against him, and more importantly, would have shown the irregularity in the Honor
Committee's hearing and rendition of decision
B. Cadet First Class Aldrin Jeff Cudia was vaguely informed of the decisions arrived at by the Honor
Committee, the Cadet Review and Appeals Board and the Philippine Military Academy
C. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military Academy have
afforded Cadet First Class Aldrin Jeff Cudia nothing but a sham trial
D. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military Academy violated
their own rules and principles as embodied in the Honor Code
E. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military Academy, in
deciding Cadet First Class Aldrin Jeff Cudia's case, grossly and in bad faith, misapplied the Honor Code so as
to defy the 1987 Constitution, notwithstanding the unquestionable fact that the former should yield to the
latter.
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II
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT CADET FIRST CLASS
ALDRIN JEFF P. CUDIA LIED, THEREBY VIOLATING THE HONOR CODE
III
WHETHER THE RESULT OF THE FACT-FINDING INVESTIGATION INDEPENDENTLY CONDUCTED BY THE
COMMISSION ON HUMAN RIGHTS IS OF SUCH GREAT WEIGHT AND PERSUASIVE NATURE THAT THIS
HONORABLE COURT MAY HONOR, UPHOLD AND RESPECT57
On the other hand, in support of their prayer to dismiss the petition, respondents presented the issues below:
PROCEDURAL GROUNDS
I.
THE MANDAMUS PETITION PRAYING THAT CADET CUDIA BE INCLUDED IN THE LIST OF
GRADUATES OF SIKLAB DIWA CLASS OF 2014 AND BE ALLOWED TO TAKE PART IN THE
COMMENCEMENT EXERCISES HAS ALREADY BEEN RENDERED MOOT.
II.
THE ISSUES RAISED IN THE PETITIONS ARE ACTUALLY FACTUAL WHICH ARE BEYOND THE
SCOPE OF A PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS.
III.
MANDAMUS DOES NOT LIE TO COMPEL RESPONDENTS TO GRANT THE RELIEFS PRAYED
FOR. IV. IT IS PREMATURE TO INVOKE JUDICIAL REDRESS PENDING THE DECISION OF THE
PRESIDENT ON CADET CUDIA'S APPEAL.
V.
WITH UTMOST DUE RESPECT, THE HONORABLE COURT MUST EXERCISE CAREFUL
RESTRAINT AND REFRAIN FROM UNDULY OR PREMATURELY INTERFERING WITH LEGITIMATE
MILITARY MATTERS.
SUBSTANTIVE GROUNDS
VI.
CADET CUDIA HAS NECESSARILY AND VOLUNTARILY RELINQUISHED CERTAIN CIVIL
LIBERTIES BY VIRTUE OF HIS ENTRY INTO THE PMA.
VII.
THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH AUTHORIZES IT TO IMPOSE
DISCIPLINARY MEASURES AND PUNISHMENT AS IT DEEMS FIT AND CONSISTENT WITH THE
PECULIAR NEEDS OF THE ACADEMY.
VIII.
CADET CUDIA WAS PROPERLY AFFORDED PROCEDURAL DUE PROCESS.
The PMA has regulatory authority to administratively terminate cadets despite the absence of statutory authority.
Violation of the Honor Code warrants the administrative dismissal of a guilty cadet.
Cadet Cudia violated the first tenet of the Honor Code by providing untruthful statements in the explanation for his
tardiness.
The higher authorities of the PMA did not blindly adopt the findings of the Honor Committee.
The procedural safeguards in a student disciplinary case were properly accorded to Cadet Cudia.
The subtle evolution in the voting process of the Honor Committee, by incorporating executive session/chambering,
was adopted to further strengthen the voting procedure of the Honor Committee. Cadet Lagura voluntarily changed
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his vote without any pressure from the other voting members of the Honor Committee.
Ostracism is not a sanctioned practice of the PMA.
The findings of the Commission on Human Rights are not binding on the Honorable Court, and are, at best,
recommendatory.
Cadet Cudia was not effectively deprived of his future when he was dismissed from the PMA.58
The Ruling of the Court
PROCEDURAL GROUNDS
Propriety of a petition for mandamus
Respondents argue that the mandamus aspect of the petition praying that Cadet 1 CL Cudia be included in the list
of graduating cadets and for him to take part in the commencement exercises was already rendered moot and
academic when the graduation ceremonies of the PMA Siklab Diwa Class took place on March 16, 2014. Also, a
petition for mandamus is improper since it does not lie to compel the performance of a discretionary duty. Invoking
Garcia v. The Faculty Admission Committee, Loyola School of Theology,59 respondents assert that a mandamus
petition could not be availed of to compel an academic institution to allow a student to continue studying therein
because it is merely a privilege and not a right. In this case, there is a clear failure on petitioners' part to establish
that the PMA has the, ministerial duty to include Cadet 1 CL Cudia in the list, much less award him with academic
honors and commission him to the Philippine Navy. Similar to the case of University of San Agustin, Inc. v. Court of
Appeals,60 it is submitted that the PMA may rightfully exercise its discretionary power on who may be admitted to
study pursuant to its academic freedom.
In response, petitioners contend that while the plea to allow Cadet 1 CL Cudia to participate in the PMA 2014
commencement exercises could no longer be had, the Court may still grant the other reliefs prayed for. They add
that Garcia enunciated that a respondent can be ordered to act in a particular manner when there is a violation of a
constitutional right, and that the certiorari aspect of the petition must still be considered because it is within the
province of the Court to determine whether a branch of the government or any of its officials has acted without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess thereof.
We agree that a petition for mandamus is improper.
Under Section 3, Rule 65 of the Rules of Civil Procedure, a petition for mandamus may be filed when any tribunal,
corporation, board, officer, or person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station. It may also be filed when any tribunal, corporation, board, officer,
or person unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled.
For mandamus to lie, the act sought to be enjoined must be a ministerial act or duty. An act is ministerial if the act
should be performed "[under] a given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of [the tribunal or corporation's] own judgment upon the propriety or
impropriety of the act done." The tribunal, corporation, board, officer, or person must have no choice but to perform
the act specifically enjoined by law. This is opposed to a discretionary act whereby the officer has the choice to
decide how or when to perform the duty.61
In this case, petitioners pray for, among others: Also, after due notice and hearing, it is prayed of the Court to issue a
Writ of Mandamus to:
1. direct the PMA to include Cadet Cudia in the list of graduates of Siklab Diwa Class of 2014 of the PMA,
including inclusion in the yearbook;
2. direct the PMA to allow Cadet Cudia to take part in the commencement exercises if he completed all the
requirements for his baccalaureate degree;
3. direct the PMA to award unto Cadet Cudia the academic honors he deserves, and the commission as a
new Philippine Navy ensign;
4. direct the Honor Committee to submit to the CRAB of the PMA all its records of the proceedings taken
against Cadet Cudia, including the video footage and audio recordings of the deliberations and voting, for the
purpose of allowing the CRAB to conduct intelligent review of the case of Cadet Cudia;
5. direct the PMA's CRAB to conduct a review de nova of all the records without requiring Cadet Cudia to
submit new evidence if it was physically impossible to do so;
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6. direct the PMA's CRAB to take into account the certification signed by Dr. Costales, the new evidence
consisting of the affidavit of a military officer declaring under oath that the cadet who voted "not guilty"
revealed to this officer that this cadet was coerced into changing his vote, and other new evidence if there is
any;
7. direct the PMA's CRAB to give Cadet Cudia the right to a counsel who is allowed to participate actively in
the proceedings as well as in the cross-examinations during the exercise of the right to confront witnesses
against him; and
8. direct the Honor Committee in case of remand of the case by the CRAB to allow Cadet Cudia a
representation of a counsel.62
Similarly, petitioner-intervenor seeks for the following reliefs:
A. xxx
B. a Writ of Mandamus be issued commanding:
a.) The PMA, Honor Committee, and CRAB to respect and uphold the 8 Guilty -1 Not Guilty vote;
b.) The PMA, Honor Committee, and CRAB to officially pronounce Cadet Cudia as Not Guilty of the
charge filed against him before the Honor Committee;
c.) The PMA to restore Cadet Cudia's rights and entitlements as a full-fledged graduating cadet,
including his diploma and awards.63
Anent the plea to direct the PMA to include Cadet 1 CL Cudia in the list of graduates of Siklab Diwa Class of 2014
and to allow him to take part in the commencement exercises, the same was rendered moot and academic when
the graduation ceremonies pushed through on March 16, 2014 without including Cadet 1 CL Cudia in the roll of
graduates.
With respect to the prayer directing the PMA to restore Cadet 1 CL Cudia's rights and entitlements as a full-fledged
graduating cadet, including his diploma, awards, and commission as a new Philippine Navy ensign, the same
cannot be granted in a petition for mandamus on the basis of academic freedom, which We shall discuss in more
detail below. Suffice it to say at this point that these matters are within the ambit of or encompassed by the right of
academic freedom; therefore, beyond the province of the Court to decide.64 The powers to confer degrees at the
PMA, grant awards, and commission officers in the military service are discretionary acts on the part of the
President as the AFP Commander-in-Chief. Borrowing the words of Garcia:
There are standards that must be met. There are policies to be pursued. Discretion appears to be of the essence. In
terms of Hohfeld's terminology, what a student in the position of petitioner possesses is a privilege rather than a
right. She [in this case, Cadet 1 CL Cudia] cannot therefore satisfy the prime and indispensable requisite of a
mandamus proceeding.65
Certainly, mandamus is never issued in doubtful cases. It cannot be availed against an official or government
agency whose duty requires the exercise of discretion or judgment.66 For a writ to issue, petitioners should have a
clear legal right to the thing demanded, and there should be an imperative duty on the part of respondents to
perform the act sought to be mandated.67
The same reasons can be said as regards the other reliefs being sought by petitioners, which pertain to the HC and
the CRAB proceedings. In the absence of a clear and unmistakable provision of a law, a mandamus petition does
not lie to require anyone to a specific course of conduct or to control or review the exercise of discretion; it will not
issue to compel an official to do anything which is not his duty to do or which is his duty not to do or give to the
applicant anything to which he is not entitled by law.68
The foregoing notwithstanding, the resolution of the case must proceed since, as argued by petitioners, the Court is
empowered to settle via petition for certiorari whether there is grave abuse of discretion on the part of respondents
in dismissing Cadet 1 CL Cudia from the PMA.
Factual nature of the issues
According to respondents, the petition raises issues that actually require the Court to make findings of fact because
it sets forth several factual disputes which include, among others: the tardiness of Cadet 1 CL Cudia in , his
ENG412 class and his explanation thereto, the circumstances that transpired in the investigation of his Honor Code
violation, the proceedings before the HC, and the allegation that Cadet 1 CL Lagura was forced to change his vote
during the executive session/"chambering."
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In opposition, petitioners claim that the instant controversy presents legal issues. Rather than determining which
between the two conflicting versions of the parties is true, the case allegedly centers on the application,
appreciation, and interpretation of a person's rights to due process, to education, and to property; the interpretation
of the PMA Honor Code and Honor System; and the conclusion on whether Cadet 1 CL Cudia's explanation
constitutes lying. Even if the instant case involves questions of fact, petitioners still hold that the Court is empowered
to settle mixed questions of fact and law. Petitioners are correct.
There is a question of law when the issue does not call for an examination of the probative value of evidence
presented, the truth or falsehood of facts being admitted and the doubt concerns the correct application of law and
jurisprudence on the matter. On the other hand, there is a question of fact when the doubt or controversy arises as
to the truth or falsity of the alleged facts. When there is no dispute as to fact, the question of whether or not the
conclusion drawn therefrom is correct is a question of law.69 The petition does not exclusively present factual
matters for the Court to decide. As pointed out, the all-encompassing issue of more importance is the determination
of whether a PMA cadet has rights to due process, to education, and to property in the context of the Honor Code
and the Honor System, and, if in the affirmative, the extent or limit thereof. Notably, even respondents themselves
raise substantive grounds that We have to resolve. In support of their contention that the Court must exercise
careful restraint and should refrain from unduly or prematurely interfering in legitimate military matters, they argue
that Cadet 1 CL Cudia has necessarily and voluntarily relinquished certain civil liberties by virtue of his entry into the
PMA, and that the Academy enjoys academic freedom authorizing the imposition of disciplinary measures and
punishment as it deems fit and consistent with the peculiar needs of the PMA. These issues, aside from being
purely legal being purely legal questions, are of first impression; hence, the Court must not hesitate to make a
categorical ruling.
Exhaustion of administrative remedies
Respondents assert that the Court must decline jurisdiction over the petition pending President Aquino’s resolution
of Cadet 1 CL Cudia' appeal. They say that there is an obvious non-exhaustion of the full administrative process.
While Cadet 1 CL Cudia underwent the review procedures of his guilty verdict at the Academy level - the
determination by the SJA of whether the HC acted according to the established procedures of the Honor System,
the assessment by the Commandant of Cadets of the procedural and legal correctness of the guilty verdict, the
evaluation of the PMA Superintendent to warrant the administrative separation of the guilty cadet, and the appellate
review proceedings before the CRAB - he still appealed to the President, who has the utmost latitude in making
decisions affecting the military. It is contended that the President's power over the persons and actions of the
members of the armed forces is recognized in B/Gen. (Ret.) Gudani v. Lt./Gen. Senga70 and in Section 3171 of
Commonwealth Act (CA.) No. 1 (also known as "The National Defense Act''). As such, the President could still
overturn the decision of the PMA. In respondents' view, the filing of this petition while the case is pending resolution
of the President is an irresponsible defiance, if not a personal affront. For them, comity dictates that courts of justice
should shy away from a dispute until the system of administrative redress has been completed.
From the unfolding of events, petitioners, however, consider that President Aquino effectively denied the appeal of
Cadet 1 CL Cudia. They claim that his family exerted insurmountable efforts to seek reconsideration of the HC
recommendation from the APP officials and the President, but was in vain. The circumstances prior to, during, and
after the PMA 2014 graduation rites, which was attended by President Aquino after he talked to Cadet lCL Cudia's
family the night before, foreclose the possibility that the challenged findings would still be overturned. In any case,
petitioners insist that the· rule on exhaustion of administrative remedies is not absolute based on the Corsiga v.
Defensor72 and Verceles v. BLR-DOLE73 rulings.
We rule for petitioners.
In general, no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted. The rationale behind the doctrine of exhaustion of administrative remedies is that
"courts, for reasons of law, comity, and convenience, should not entertain suits unless the available administrative
remedies have first been resorted to and the proper authorities, who are competent to act upon the matter
complained of, have been given the appropriate opportunity to act and correct their alleged errors, if any, committed
in the administrative forum."74 In the U.S. case of Ringgold v. United States,75 which was cited by respondents, it
was specifically held that in a typical case involving a decision by military authorities, the plaintiff must exhaust his
remedies within the military before appealing to the court, the doctrine being designed both to preserve the balance
between military and civilian authorities and to conserve judicial resources.
Nonetheless, there are exceptions to the rule. In this jurisdiction, a party may directly resort to judicial remedies if
any of the following is present:
1. when there is a violation of due process;
2. when the issue involved is purely a legal question;
3. when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
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4. when there is estoppel on the part of the administrative agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department secretary whose acts as an alter ego of the President bear the
implied and assumed approval of the latter;
7. when to require exhaustion of administrative remedies would be unreasonable;
8. when it would amount to a nullification of a claim;
9. when the subject matter is a private land in land case proceedings;
10. when the rule does not provide a plain, speedy and adequate remedy; and
11. when there are circumstances indicating the urgency of judicial intervention.76
Petitioners essentially raise the lack of due process in the dismissal of Cadet 1 CL Cudia from the PMA. Thus, it
may be a ground to give due course to the petition despite the non-exhaustion of administrative remedies. Yet more
significant is the fact that during the pendency of this case, particularly on June 11, 2014, the Office of the President
finally issued its ruling, which sustained the findings of the AFP Chief and the CRAB. Hence, the occurrence of this
supervening event bars any objection to the petition based on failure to exhaust administrative remedies.
Court's interference within military affairs
Respondents cite the U.S. cases of Bois v. Marsh77 and Schlesinger v. Councilman78 to support their contention that
judicial intervention would pose substantial threat to military discipline and that there should be a deferential review
of military statutes and regulations since political branches have particular expertise and competence in assessing
military needs. Likewise, in Orloff v. Willoughby79 and Parker v. Levy,80 it was allegedly opined by the U.S. Supreme
Court that the military constitutes a specialized community governed by a separate discipline from that of the
civilian. According to respondents, the U.S. courts' respect to the military recognizes that constitutional rights may
apply differently in the military context than in civilian society as a whole. Such military deference is exercised either
by refusing to apply due process and equal protection doctrines in military cases or applying them but with leniency.
In respondents' view, although Philippine courts have the power of judicial review in cases attended with grave
abuse of discretion amounting to lack or excess of jurisdiction, policy considerations call for the widest latitude of
deference to military affairs. Such respect is exercised by the court where the issues to be resolved entail a
substantial consideration of legitimate governmental interest. They suppose that allowing Cadet 1 CL Cudia's case
to prosper will set an institutionally dangerous precedent, opening a Pandora's box of other challenges against the
specialized system of discipline of the PMA. They state that with the PMA's mandate to train cadets for permanent
commission in the AFP, its disciplinary rules and procedure necessarily must impose h different standard of conduct
compared with civilian institutions.
Petitioners, on the other hand, consider that this Court is part of the State's check-and-balance machinery,
specifically mandated by Article VIII of the 1987 Constitution to ensure that no branch of the government or any of its
officials acts without or in excess of jurisdiction or with grave abuse of, discretion amounting to lack or excess of
jurisdiction. They assert that judicial non-interference in military affairs is not deemed as absolute even in the U.S.
They cite Schlesinger and Parker, which were invoked by respondents, as well as Burns v. Wilson81 and Harmon v.
Brucker,82 wherein the U.S. Supreme Court reviewed the proceedings of military tribunals on account of issues
posed concerning due process and violations of constitutional rights. Also, in Magno v. De Villa83 decided by this
Court, petitioners note that We, in fact, exercised the judicial power to determine whether the APP and the members
of the court martial acted with grave abuse o.f discretion in their military investigation.
Petitioners' contentions are tenable.
Admittedly, the Constitution entrusts the political branches of the government, not the courts, with superintendence
and control over the military because the courts generally lack the competence and expertise necessary to evaluate
military decisions and they are ill-equipped to determine the impact upon discipline that any particular intrusion upon
military authority might have.84 Nevertheless, for the sake of brevity, We rule that the facts as well as the legal issues
in the U.S. cases cited by respondents are not on all fours with the case of Cadet 1 CL Cudia. Instead, what applies
is the 1975 U.S. case of Andrews v. Knowlton,85 which similarly involved cadets who were separated from the United
States Military Academy due to Honor Code violations. Following Wasson v. Trowbridge86 and Hagopian v.
Knowlton,87 Andrews re-affirmed the power of the district courts to review procedures used at the service academies
in the separation or dismissal of cadets and midshipmen. While it recognized the "constitutional permissibility of the
military to set and enforce uncommonly high standards of conduct and ethics," it said that the courts "have
expanded at an accelerated pace the scope of judicial access for review of military determinations." Later, in Kolesa
v. Lehman,88 it was opined that it has been well settled that federal courts have jurisdiction "where there is a
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substantial claim that prescribed military procedures violates one's constitutional rights." By 1983, the U.S.
Congress eventually made major revisions to the Uniform Code of Military Justice (UCMJ) by expressly providing,
among others; for a direct review by the U.S. Supreme Court of decisions by the military's highest appellate
authority.89
Even without referring to U.S. cases, the position of petitioners is still formidable. In this jurisdiction, Section 1 Article
VIII of the 1987 Constitution expanded the scope of judicial power by mandating that the duty of the courts of justice
includes not only "to settle actual controversies involving rights which are legally demandable and enforceable" but
also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government" even if the latter does not exercise
judicial, quasi-judicial or ministerial functions.90 Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, which must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.91
The proceedings of the Cadet Honor Committee can, for purposes of the Due Process Clause, be considered a
governmental activity. As ruled in Andrews:
The relationship between the Cadet Honor Committee and the separation process at the Academy has been
sufficiently formalized, and is sufficiently interdependent, so as to bring that committee's activities within the
definition of governmental activity for the purposes of our review. While the Academy has long had the informal
practice of referring all alleged violations to the Cadet Honor Committee, the relationship between that committee
and the separation process has to a degree been formalized. x x x
Regardless of whether the relationship be deemed formal or informal, the Honor Committee under its own
procedures provides that a single "not guilty" vote by a member ends the matter, while a "guilty" finding confronts a
cadet with the hard choice of either resigning or electing to go before a Board of Officers. An adverse finding there
results not only in formal separation from the Academy but also in a damaging record that will follow the cadet
through life. Accordingly, we conclude that the Cadet Honor Committee, acting not unlike a grand jury, is clearly part
of the process whereby a cadet can ultimately be adjudged to have violated the Cadet Honor Code and be
separated from the Academy. Therefore, the effect of the committee's procedures and determinations on the
separation process is sufficiently intertwined with the formal governmental activity which may follow as to bring it
properly under judicial review92
No one is above the law, including the military. In fact, the present Constitution declares it as a matter of principle
that civilian authority is, at all times, supreme over the military.93 Consistent with the republican system of checks
and balances, the Court has been entrusted, expressly or by necessary implication, with both the duty and the
obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action.94
SUBSTANTIVE GROUNDS
Cadet's relinquishment of certain civil liberties
Respondents assert that the standard of rights applicable to a cadet is not the same as that of a civilian because the
former' s rights have already been recalibrated to best serve the military purpose and necessity. They claim that
both Gudani and Lt. Col. Kapunan, Jr. v. Gen. De Villa95 recognized that, to a certain degree, individual rights of
persons in the military service may be curtailed by the rules of military discipline in order to ensure its effectiveness
in fulfilling the duties required to be discharged under the law. Respondents remind that, as a military student
aspiring to a commissioned post in the military service, Cadet 1 CL Cudia voluntarily gave up certain civil and
political rights which the rest of the civilian population enjoys. The deliberate surrender of certain freedoms on his
part is embodied in the cadets' Honor Code Handbook. It is noted that at the beginning of their academic life in the
PMA, Cadet 1 CL Cudia, along with the rest of Cadet Corps, took an oath and undertaking to stand by the Honor
Code and the Honor System.
To say that a PMA cadet surrenders his fundamental human rights, including the right to due process, is, for
petitioners, contrary to the provisions of Section 3, Article II of the 1987 Constitution,96 Executive Order (E.O.) No.
17897 (as amended by E.O. No. 100598), AFP Code of Ethics, Oath of Cadet Corps to the Honor Code and the
Honor System, military professionalism, and, in general, military culture. They maintain that the HC, the CRAB, and
the PMA, grossly and in bad faith misapplied the Honor Code and the Honor System in deciding Cadet lCL Cudia's
case considering that these should not be implemented at the expense of human rights, due process, and fair play.
Further, under the doctrine of constitutional supremacy, they can never overpower or defy the 1987 Constitution
since the former should yield to the latter. Petitioners stress that the statement that "a cadet can be compelled to
surrender some civil rights and liberties in order for the Code and System to be implemented" simply pertains to
what cadets have to sacrifice in order to prove that they are men or women of integrity and honor, such as the right
to entertain vices and the right to freely choose what they want to say or do. In the context of disciplinary
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investigation, it does not contemplate a surrender of the right to due process but, at most, refers to the cadets' rights
to privacy and to remain silent.
We concur with the stand of petitioners.
Of course, a student at a military academy must be prepared to subordinate his private interests for the proper
functioning of the educational institution he attends to, one that is with a greater degree than a student at a civilian
public school.99 In fact, the Honor Code and Honor System Handbook of the PMA expresses that, "[as] a training
environment, the Cadet Corps is a society which has its own norms. Each member binds himself to what is good for
him, his subordinates, and his peers. To be part of the Cadet Corps requires the surrender of some basic rights and
liberties for the good of the group."100
It is clear, however, from the teachings of Wasson and Hagopian, which were adopted by Andrews, that a cadet
facing dismissal from the military academy for misconduct has constitutionally protected private interests (life, liberty,
or property); hence, disciplinary proceedings conducted within the bounds of procedural due process is a must.101
For that reason, the PMA is not immune from the strictures of due process. Where a person's good name,
reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements
of the due process clause must be satisfied.102 Likewise, the cadet faces far more severe sanctions of being
expelled from a course of college instruction which he or she has pursued with a view to becoming a career officer
and of probably
being forever denied that career.103
The cases of Gudani and Kapunan, Jr. are inapplicable as they do not specifically pertain to dismissal proceedings
of a cadet in a military academy due to honor violation. In Gudani, the Court denied the petition that sought to annul
the directive from then President Gloria Macapagal-Arroyo, which' enjoined petitioners from testifying before the
Congress without her consent. We ruled that petitioners may be subjected to military discipline for their defiance of a
direct order of the AFP Chief of Staff. On the other hand, in Kapunan, Jr., this Court upheld the restriction imposed
on petitioner since the conditions for his "house arrest" (particularly, that he may not issue any press statements or
give any press conference during the period of his detention) are justified by the requirements of military discipline.
In these two cases, the constitutional rights to information, transparency in matters of public concern, and to free
speech - not to due process clause - were restricted to better serve the greater military purpose. Academic freedom
of the PMA
Petitioners posit that there is no law providing that a guilty finding by the HC may be used by the PMA to dismiss or
recommend the dismissal of a cadet from the PMA. They argue that Honor Code violation is not among those listed
as justifications for the attrition of cadets considering that the Honor Code and the Honor System do not state that a
guilty cadet is automatically terminated or dismissed from service. To them, the Honor Code and Honor System are
"gentleman's agreement" that cannot take precedence over public interest - in the defense of the nation and in view
of the taxpayer's money spent for each cadet. Petitioners contend that, based on the Civil Code, all written or verbal
agreements are null and void if they violate the law, good morals, good customs, public policy, and public safety.
In opposition, respondents claim that the PMA may impose disciplinary measures and punishment as it deems fit
and consistent with the peculiar needs of the Academy. Even without express provision of a law, the PMA has
regulatory authority to administratively dismiss erring cadets since it is deemed reasonably written into C.A. No. 1.
Moreover, although said law grants to the President the authority of terminating a cadet's appointment, such power
may be delegated to the PMA Superintendent, who may exercise direct supervision and control over the cadets.
Respondents likewise contend that, as an academic institution, the PMA has the inherent right to promulgate
reasonable norms, rules and regulations that it may deem necessary for the maintenance of school discipline, which
is specifically mandated by Section 3 (2),104 Article XIV of the 1987 Constitution. As the premiere military educational
institution of the AFP in accordance with Section 30,105 Article III of C.A. No. 1 and Sections 58 and 59,106 Chapter 9,
Subtitle II, Title VIII, Book IV of E.O. No. 292 ("Administrative Code of 1987"), the PMA is an institution that enjoys
academic freedom guaranteed by Section 5 (2),107 Article XIV of the 1987 Constitution. In Miriam College
Foundation, Inc. v. Court of Appeals,108 it was held that concomitant with such freedom is the right and duty to instill
and impose discipline upon its students. Also, consistent with lsabelo, Jr. v. Perpetual Help College of Rizal, Inc.109
and Ateneo de Manila University v. Capulong,110 the PMA has the freedom on who to admit (and, conversely, to
expel) given the high degree of discipline and honor expected from its students who are to form part of the AFP.
For respondents, Cadet 1 CL Cudia cannot, therefore, belatedly assail the Honor Code as basis of the HC' s
decision to recommend his dismissal from the PMA. When he enlisted for enrolment and studied in the PMA for four
years, he knew or should have been fully aware of the standards of discipline imposed on all cadets and the
corresponding penalty for failing to abide by these standards.
In their Reply, petitioners counter that, as shown in lsabelo, Jr. and Ateneo, academic freedom is not absolute and
cannot be exercised in blatant disregard of the right to due process and the 1987 Constitution. Although schools
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have the prerogative to choose what to teach, how to teach, and who to teach, the same does not go so far as to
deprive a student of the right to graduate when there is clear evidence that he is entitled to the same since, in such
a case, the right to graduate becomes a vested right which takes precedence over the limited and restricted right of
the educational institution.
While both parties have valid points to consider, the arguments of respondents are more in line with the facts of this
case. We have ruled that the school-student relationship is contractual in nature. Once admitted, a student's
enrolment is not only semestral in duration but for the entire period he or she is expected to complete it.111 An
institution of learning has an obligation to afford its students a fair opportunity to complete the course they seek to
pursue.112 Such contract is imbued with public interest because of the high priority given by the Constitution to
education and the grant to the State of supervisory and regulatory powers over a educational institutions.113
The school-student relationship has also been held as reciprocal. "[It] has consequences appurtenant to and
inherent in all contracts of such kind -it gives rise to bilateral or reciprocal rights and obligations. The school
undertakes to provide students with education sufficient to enable them to pursue higher education or a profession.
On the other hand, the students agree to abide by the academic requirements of the school and to observe its rules
and regulations."114
Academic freedom or, to be precise, the institutional autonomy of universities and institutions of higher learning, 115
has been enshrined in our Constitutions of 1935, 1973, and 1987.116 In Garcia, this Court espoused the concurring
opinion of U.S. Supreme Court Justice Felix Frankfurter in Sweezy v. New Hampshire,117 which enumerated "the
four essential freedoms" of a university: To determine for itself on academic grounds (1) who may teach, (2) what
may be taught, (3) how it shall be taught, and (4) who may be admitted to study.118 An educational institution has the
power to adopt and enforce such rules as may be deemed expedient for its government, this being incident to the
very object of incorporation, and indispensable to the successful management of the college.119 It can decide for
itself its aims and objectives and how best to attain them, free from outside coercion or interference except when
there is an overriding public welfare which would call for some restraint.120 Indeed, "academic freedom has never
been meant to be an unabridged license. It is a privilege that assumes a correlative duty to exercise it responsibly.
An equally telling precept is a long recognized mandate, so well expressed in Article 19 of the Civil Code, that every
'person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith."'121
The schools' power to instill discipline in their students is subsumed in their academic freedom and that "the
establishment of rules governing university-student relations, particularly those pertaining to student discipline, may
be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival."122 As
a Bohemian proverb puts it: "A school without discipline is like a mill without water." Insofar as the water turns the
mill, so does the school's disciplinary power assure its right to survive and continue operating.123 In this regard, the
Court has always recognized the right of schools to impose disciplinary sanctions, which includes the power to
dismiss or expel, on students who violate disciplinary rules.124 In Miriam College Foundation, Inc. v. Court of
Appeals,125 this Court elucidated:
The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall be taught."
A school certainly cannot function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations
necessary for the maintenance of an orderly educational program and the creation of an educational environment
conducive to learning. Such rules and regulations are equally necessary for the protection of the students, faculty,
and property.
Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in
any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to teach." Incidentally, the school not only has the right but the duty
to develop discipline in its students. The Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and nationalism, foster love of humanity, respect for human
rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational
efficiency.
In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility to help its
students "grow and develop into mature, responsible, effective and worthy citizens of the community."
Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be admitted to
study." If a school has the freedom to determine whom to admit, logic dictates that it also has the right to determine
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whom to exclude or expel, as well as upon whom to impose lesser sanctions such as suspension and the
withholding of graduation privileges.126
The power of the school to impose disciplinary measures extends even after graduation for any act done by the
student prior thereto. In University of the Phils. Board of Regents v. Court of Appeals,127 We upheld the university's
withdrawal of a doctorate degree already conferred on a student who was found to have committed intellectual
dishonesty in her dissertation. Thus:
Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be enjoyed in all institutions of higher
learning." This is nothing new. The 1935 Constitution and the 1973 Constitution likewise provided for the academic
freedom or, more precisely, for the institutional autonomy of universities and institutions of higher learning. As
pointed out by this Court in Garcia v. Faculty Admission Committee, Loyola School of Theology, it is a freedom
granted to "institutions of higher learning" which is thus given "a wide sphere of authority certainly extending to the
choice of students." If such institution of higher learning can decide who can and who cannot study in it, it certainly
can also determine on whom it can confer the honor and distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the
right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not
terminate upon the "graduation" of a student, .as the Court of Appeals held. For it is precisely the "graduation" of
such a student that is in question. It is noteworthy that the investigation of private respondent's case began before
her graduation. If she was able to join the graduation ceremonies on April 24, 1993, it was because of too many
investigations conducted before the Board of Regents finally decided she should not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the constitutional grant of
academic freedom, to quote again from Garcia v. Faculty Admission Committee, Loyola School of Theology, "is not
to be construed in a niggardly manner or in a grudging fashion."
Under the U.P. Charter, the Board of Regents is the highest governing body of the University of the Philippines. It
has the power to confer degrees upon the recommendation of the University Council. It follows that if the conferment
of a degree is founded on error or fraud, the Board of Regents is also empowered, subject to the observance of due
process, to withdraw what it has granted without violating a student's rights. An institution of higher learning cannot
be powerless if it discovers that an academic degree it has conferred is not rightfully deserved. Nothing can be more
objectionable than bestowing a university's highest academic degree upon an individual who has obtained the same
through fraud or deceit. The pursuit of academic excellence is the university's concern. It should be empowered, as
an act of self-defense, to take measures to protect itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their education, the USC as an educational
institution is also entitled to pursue its academic freedom and in the process has the concomitant right to see to it
that this freedom is not jeopardized.128
It must be borne in mind that schools are established, not merely to develop the intellect and skills of the studentry,
but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the total man.129
Essentially, education must ultimately be religious, i.e., one which inculcates duty and reverence.130 Under the rubric
of "right to education," students have a concomitant duty to learn under the rules laid down by the school.131 Every
citizen has a right to select a profession or, course of study, subject to fair, reasonable, and equitable admission and
academic requirements.132 The PMA is not different. As the primary training and educational institution of the AFP, it
certainly has the right to invoke academic freedom in the enforcement of its internal rules and regulations, which are
the Honor Code and the Honor System in particular.
The Honor Code is a set of basic and fundamental ethical and moral principle. It is the minimum standard for cadet
behavior and serves as the guiding spirit behind each cadet's action. It is the cadet's responsibility to maintain the
highest standard of honor. Throughout a cadet's stay in the PMA, he or she is absolutely bound thereto. It binds as
well the members of the Cadet Corps from its alumni or the member of the so-called "Long Gray Line."
Likewise, the Honor Code constitutes the foundation for the cadets' character development. It defines the desirable
values they must possess to remain part of the Corps; it develops the atmosphere of trust so essential in a military
organization; and it makes them professional military soldiers.133 As it is for character building, it should not only be
kept within the society of cadets. It is best adopted by the Cadet Corps with the end view of applying it outside as an
officer of the AFP and as a product of the PMA.134
The Honor Code and System could be justified as the primary means of achieving the cadets' character
development and as ways by which the Academy has chosen to identify those who are deficient in conduct.135 Upon
the Code rests the ethical standards of the Cadet Corps and it is also an institutional goal, ensuring that graduates
have strong character, unimpeachable integrity, and moral standards of the highest order.136 To emphasize, the
Academy's disciplinary system as a whole is characterized as "correctional and educational in nature rather than
being legalistic and punitive." Its purpose is to teach the cadets "to be prepared to accept full responsibility for all
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that they do or fail to do and to place loyalty to the service above self-interest or loyalty to friends or associates. "137
Procedural safeguards in a student disciplinary case
Respondents stress that Guzman v. National University138 is more appropriate in determining the minimum
standards for the imposition of disciplinary sanctions in academic institutions. Similarly, with the guideposts set in
Andrews, they believe that Cadet 1 CL Cudia was accorded due process.
On the other hand, petitioners argue that the HC, the CRAB and the PMA fell short in observing the important
safeguards laid down in Ang Tibay v. CIR139 and Non v. Judge Dames II,140 which set the minimum standards to
satisfy the demands of procedural due process in the imposition of disciplinary sanctions. For them, Guzman did not
entirely do away with the due process requirements outlined in Ang Tibay as the Court merely stated that the
minimum requirements in the Guzman case are more apropos.
Respondents rightly argued.
Ateneo de Manila University v. Capulong141 already settled the issue as it held that although both Ang Tibay and
Guzman essentially deal with the requirements of due process, the latter case is more apropos since it specifically
deals with the minimum standards to be satisfied in the imposition of disciplinary sanctions in academic institutions.
That Guzman is the authority on the procedural rights of students in disciplinary cases was reaffirmed by the Court
in the fairly recent case of Go v. Colegio De San Juan De Letran.142
In Guzman, the Court held that there are minimum standards which must be met to satisfy the demands of
procedural due process, to wit:
(1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall
have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be
informed of the evidence against them; ( 4) they shall have the right to adduce evidence in their own behalf; and (5)
the evidence must be duly considered by the investigating committee or official designated by the school authorities
to hear and decide the case.143
We have been consistent in reminding that due process in disciplinary cases involving students does not entail
proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice;144 that the
proceedings may be summary;145 that cross-examination is not an essential part of the investigation or hearing;146
and that the required proof in a student disciplinary action, which is an administrative case, is neither proof beyond
reasonable doubt nor preponderance of evidence but only substantial evidence or "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."147
What is crucial is that official action must meet minimum standards of fairness to the individual, which generally
encompass the right of adequate notice and a meaningful opportunity to be heard.148 As held in De La Salle
University, Inc. v. Court of Appeals:149
Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that
must be respected even in administrative proceedings. The essence of due process is simply an opportunity to be
heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek
reconsideration of the action or ruling complained of. So long as the party is given the opportunity to advocate her
cause or defend her interest in due course, it cannot be said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances, essential to due process - it is enough that the
parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present
supporting evidence on which a fair decision can be based. "To be heard" does not only mean presentation of
testimonial evidence in court - one may also be heard through pleadings and where the opportunity to be heard
through pleadings is accorded, there is no denial of due process.150
The PMA Honor Code explicitly recognizes that an administrative proceeding conducted to investigate a cadet's
honor violation need not be clothed with the attributes of a judicial proceeding. It articulates that – The Spirit of the
Honor Code guides the Corps in identifying and assessing misconduct. While cadets are interested in legal
precedents in cases involving Honor violations, those who hold the Spirit of the Honor Code dare not look into these
precedents for loopholes to justify questionable acts and they are not to interpret the system to their own advantage.
The Spirit of the Honor Code is a way for the cadets to internalize Honor in a substantive way. Technical and
procedural misgivings of the legal systems may avert the true essence of imparting the Spirit of the Code for the
reason that it can be used to make unlawful attempt to get into the truth of matters especially when a cadet can be
compelled to surrender some civil rights and liberties in order for the Code and System to be implemented. By virtue
of being a cadet, a member of the CCAFP becomes a subject of the Honor Code and System. Cadet's actions are
bound by the existing norms that are logically applied through the Code and System in order to realize the
Academy's mission to produce leaders of character - men of integrity and honor.151
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One of the fundamental principles of the Honor System also states:
2. The Honor System correlates with legal procedures of the state's Justice System but it does not demean its Spirit
by reducing the Code to a systematic list of externally observed rules. Where misinterpretations and loopholes arise
through legalism and its technicalities, the objective of building the character of the cadets becomes futile. While,
generally, Public Law penalizes only the faulty acts, the Honor System tries to examine both the action and the
intention.152
Like in other institutions of higher learning, there is aversion towards undue judicialization of an administrative
hearing in the military academy. It has been said that the mission of the military is unique in the sense that its
primary business is to fight or be ready to fight wars should the occasion arise, and that over-proceduralizing military
determinations necessarily gives soldiers less time to accomplish this task.153 Extensive cadet investigations and
complex due process hearing could sacrifice simplicity, practicality, and timeliness. Investigations that last for
several days or weeks, sessions that become increasingly involved with legal and procedural' points, and legal
motions and evidentiary objections that are irrelevant and inconsequential tend to disrupt, delay, and confuse the
dismissal proceedings and make them unmanageable. Excessive delays cannot be tolerated since it is unfair to the
accused, to his or her fellow cadets, to the Academy, and, generally, to the Armed Forces. A good balance should,
therefore, be struck to achieve fairness, thoroughness, and efficiency.154 Considering that the case of Cadet 1 CL
Cudia is one of first impression in the sense that this Court has not previously dealt with the particular issue of a
dismissed cadet's right to due process, it is necessary for Us to refer to U.S. jurisprudence for some guidance.
Notably, our armed forces have been patterned after the U.S. Army and the U.S. military code produced a salutary
effect in the military justice system of the Philippines.155 Hence, pertinent case laws interpreting the U.S. military
code and practices have persuasive, if not the same, effect in this jurisdiction.
We begin by stating that U.S. courts have uniformly viewed that "due process" is a flexible concept, requiring
consideration in each case of a variety of circumstances and calling for such procedural protections as the particular
situation demands.156 Hagopian opined:
In approaching the question of what process is due before governmental action adversely affecting private interests
may properly be taken, it must be recognized that due process is not a rigid formula or simple rule of thumb to be
applied undeviatingly to any given set of facts. On the contrary, it is a flexible concept which depends upon the
balancing of various factors, including the nature of the private right or interest that is threatened, the extent to which
the proceeding is adversarial in character, the severity and consequences of any action that might be taken, the
burden that would be imposed by requiring use of all or part of the full panoply of trial-type procedures, and the
existence of other overriding interests, such as the necessity for prompt action in the conduct of crucial military
operations. The full context must therefore be considered in each case.157 (Emphasis supplied)
Wasson, which was cited by Hagopian, broadly outlined the minimum standards of due process required in the
dismissal of a cadet. Thus:
[W]hen the government affects the private interests of individuals, it may not proceed arbitrarily but must observe
due process of law. x x x Nevertheless, the flexibility which is inherent in the concept of due process of law
precludes the dogmatic application of specific rules developed in one context to entirely distinct forms of government
action. "For, though 'due process of law' generally implies and includes actor, reus, judex, regular allegations,
opportunity to answer, and a trial according to some settled course of judicial proceedings, * * * yet, this is not
universally true." x x x Thus, to determine in any given case what procedures due process requires, the court must
carefully determine and balance the nature of the private interest affected and of the government interest involved,
taking account of history and the precise circumstances surrounding the case at hand.
While the government must always have a legitimate concern with the subject matter before it may validly affect
private interests, in particularly vital and sensitive areas of government concern such as national security and
military affairs, the private interest must yield to a greater degree to the governmental. x x x Few decisions properly
rest so exclusively within the discretion of the appropriate government officials than the selection, training, discipline
and dismissal of the future officers of the military and Merchant Marine. Instilling and maintaining discipline and
morale in these young men who will be required to bear weighty responsibility in the face of adversity -- at times
extreme -- is a matter of substantial national importance scarcely within the competence of the judiciary. And it
cannot be doubted that because of these factors historically the military has been permitted greater freedom to
fashion its disciplinary procedures than the civilian authorities.
We conclude, therefore, that due process only requires for the dismissal of a Cadet from the Merchant Marine
Academy that he be given a fair hearing at which he is apprised of the charges against him and permitted a
defense. x x x For the guidance of the parties x x x the rudiments of a fair hearing in broad outline are plain. The
Cadet must be apprised of the specific charges against him. He must be given an adequate opportunity to present
his defense both from the point of view of time and the use of witnesses and other evidence. We do not suggest,
however, that the Cadet must be given this opportunity both when demerits are awarded and when dismissal is
considered. The hearing may be procedurally informal and need not be adversarial.158 (Emphasis supplied)
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In Andrews, the U.S. Court of Appeals held that Wasson and Hagopian are equally controlling in cases where
cadets were separated from the military academy for violation of the Honor Code. Following the two previous cases,
it was ruled that in order to be proper and immune from constitutional infirmity, a cadet who is sought to be
dismissed or separated from the academy must be afforded a hearing, be apprised of the specific charges against
him, and be given an adequate opportunity to present his or her defense both from the point of view of time and the
use of witnesses and other evidence.159 Conspicuously, these vital conditions are not too far from what We have
already set in Guzman and the subsequent rulings in Alcuaz v. Philippine School of Business Administration160 and
De La Salle University, Inc. v. Court of Appeals.161
In this case, the investigation of Cadet 1 CL Cudia' s Honor Code violation followed the prescribed procedure and
existing practices in the PMA. He was notified of the Honor Report from Maj. Hindang. He was then given the
opportunity to explain the report against him. He was informed about his options and the entire process that the
case would undergo. The preliminary investigation immediately followed after he replied and submitted a written
explanation. Upon its completion, the investigating team submitted a written report together with its recommendation
to the HC Chairman. The HC thereafter reviewed the findings and recommendations. When the honor case was
submitted for formal investigation, a new team was assigned to conduct the hearing. During the formal
investigation/hearing, he was informed of the charge against him and given the right to enter his plea. He had the
chance to explain his side, confront the witnesses against him, and present evidence in his behalf. After a thorough
discussion of the HC voting members, he was found to have violated the ' Honor Code. Thereafter, the guilty verdict
underwent the review process at the Academy level - from the OIC of the HC, to the SJA, to the Commandant of
Cadets, and to the PMA Superintendent. A separate investigation was also conducted by the HTG. Then, upon the
directive of the AFP-GHQ to reinvestigate the case, a review was conducted by the CRAB. Further, a Fact-Finding
Board/Investigation Body composed of the CRAB members and the PMA senior officers was constituted to conduct
a deliberate investigation of the case. Finally, he had the opportunity to appeal to the President. Sadly for him, all
had issued unfavorable rulings.
It is well settled that by reason of their special knowledge and expertise gained from the handling of specific matters
falling under their respective jurisdictions, the factual findings of administrative tribunals are ordinarily accorded
respect if not finality by the Court, unless such findings are not supported by evidence or vitiated by fraud, imposition
or collusion; where the procedure which led to the findings is irregular; when palpable errors are committed; or when
a grave abuse of discretion, arbitrariness, or capriciousness is manifest.162 In the case of Cadet 1 CL Cudia, We find
no reason to deviate from the general rule. The grounds therefor are discussed below seriatim:
As to the right to be represented by a counsel –
For petitioners, respondents must be compelled to give Cadet 1 CL Cudia the right to be represented by a counsel
who could actively participate in the proceedings like in the cross-examination of the witnesses against him before
the CRAB or HC, if remanded. This is because while the CRAB allowed him to be represented by a PAO lawyer, the
counsel was only made an observer without any right to intervene and demand respect of Cadet 1 CL Cudia's
rights.163 According to them, he was not sufficiently given the opportunity to seek a counsel and was not even asked
if he would like to have one. He was only properly represented when it was already nearing graduation day after his
family sought the assistance of the PAO. Petitioners assert that Guzman is specific in stating that the erring student
has the right to answer the charges against him or her with the assistance of counsel, if desired.
On the other hand, respondents cited Lumiqued v. Exevea164 and Nera v. The Auditor General165 in asserting that
the right to a counsel is not imperative in administrative investigations or non-criminal proceedings. Also, based on
Cadet lCL Cudia's academic standing, he is said to be obviously not untutored to fully understand his rights and
express himself. Moreover, the confidentiality of the HC proceedings worked against his right to be represented by a
counsel. In any event, respondents claim that Cadet 1 CL Cudia was not precluded from seeking a counsel's advice
in preparing his defense prior to the HC hearing.
Essentially, petitioners claim .. that Cadet lCL Cudia is guaranteed the right to have his counsel not just in assisting
him in the preparation for the investigative hearing before the HC and the CRAB but in participating fully in said
hearings. The Court disagrees.
Consistent with Lumiqued and Nera, there is nothing in the 1987 Constitution stating that a party in a non-litigation
proceeding is entitled to be represented by counsel. The assistance of a lawyer, while desirable, is not
indispensable. Further, in Remolona v. Civil Service Commission,166 the Court held that "a party in an administrative
inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's
capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel."
Hence, the administrative body is under no duty to provide the person with counsel because assistance of counsel
is not an absolute requirement.
More in point is the opinion in Wasson, which We adopt. Thus:
The requirement of counsel as an ingredient of fairness is a function of all of the other aspects of the hearing. Where
the proceeding is non-criminal in nature, where the hearing is investigative and not adversarial and the government
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does not proceed through counsel, where the individual concerned is mature and educated, where his knowledge of
the events x x x should enable him to develop the facts adequately through available sources, and where the other
aspects of the hearing taken as a whole are fair, due process does not require representation by counsel.167
To note, U.S. courts, in general, have declined to recognize a right to representation by counsel, as a function of due
process, in military academy disciplinary proceedings.168 This rule is principally motivated by the policy of "treading
lightly on the military domain, with scrupulous regard for the power and authority of the military establishment to
govern its own affairs within the broad confines of constitutional due process" and the courts' views that disciplinary
proceedings are not judicial in nature and should be kept informal, and that literate and educated cadets should be
able to defend themselves.169 In Hagopian, it was ruled that the importance of informality in the proceeding militates
against a requirement that the cadet be accorded the right to representation by counsel before the Academic Board
and that unlike the welfare recipient who lacks the training and education needed to understand his rights and
express himself, the cadet should be capable of doing so.170 In the subsequent case of Wimmer v. Lehman,171 the
issue was not access to counsel but the opportunity to have counsel, instead of oneself, examine and cross-
examine witnesses, make objections, and argue the case during the hearing. Disposing of the case, the U.S. Court
of Appeals for the Fourth Circuit was not persuaded by the argument that an individual of a midshipman's presumed
intelligence, selected because he is expected to be able to care for himself and others, often under difficult
circumstances, and who has full awareness of what he is facing, with counsel's advice, was deprived of due process
by being required to present his defense in person at an investigatory hearing.
In the case before Us, while the records are bereft of evidence that Cadet 1 CL Cudia was given the option or was
able to seek legal advice prior to and/or during the HC hearing, it is indubitable that he was assisted by a counsel, a
PAO lawyer to be exact, when the CRAB reviewed and reinvestigated the case. The requirement of due process is
already satisfied since, at the very least, the counsel aided him in the drafting and filing of the Appeal Memorandum
and even acted as an observer who had no right to actively participate in the proceedings (such as conducting the
cross-examination). Moreover, not to be missed out are the facts that the offense committed by Cadet 1 CL Cudia is
not criminal in nature; that the hearings before the HC and the CRAB were investigative and not adversarial; and
that Cadet lCL Cudia's excellent-academic standing puts him in the best position to look after his own vested
interest in the Academy.
As to the confidentiality of records of the proceedings –
Petitioners allege that when Maj. Gen. Lopez denied in his March 11, 2014 letter Cadet lCL Cudia's request for
documents, footages, and recordings relevant to the HC hearings, the vital evidence negating the regularity of the
HC trial and supporting his defense have been surely overlooked by the CRAB in its case review. Indeed, for them,
the answers on whether Cadet 1 CL Cudia was deprived of due process and whether he lied could easily be
unearthed from the video and other records of the HC investigation. Respondents did not deny their existence but
they refused to present them for the parties and the Court to peruse. In particular, they note that the Minutes of the
HC dated January 21, 2014 and the HC Formal Investigation Report dated January 20, 2014 were considered by
the CRAB but were not furnished to petitioners and the Court; hence, there is no way to confirm the truth of the
alleged statements therein. In their view, failure to furnish these documents could only mean that it would be
adverse if produced pursuant to Section 3 (e), Rule 131 of the Rules of Court.172
For lack of legal basis on PMA' s claim of confidentiality of records, petitioners contend that it is the ministerial duty
of the HC to submit to the CRAB, for the conduct of intelligent review of the case, all its records of the proceedings,
including video footages of the deliberations and voting. They likewise argue that PMA' s refusal to release relevant
documents to Cadet 1 CL Cudia under the guise of confidentiality reveals another misapplication of the Honor Code,
which merely provides: "A cadet who becomes part of any investigation is subject to the existing regulations
pertaining to rules of confidentiality and, therefore, must abide to the creed of secrecy. Nothing shall be disclosed
without proper guidance from those with authority" (IV. The Honor System, Honor Committee, Cadet Observer). This
provision, they say, does not deprive Cadet 1 CL Cudia of his right to obtain copies and examine relevant
documents pertaining to his case.
Basically, petitioners want Us to assume that the documents, footages, and recordings relevant to the HC hearings
are favorable to Cadet 1 CL Cudia's cause, and, consequently, to rule that respondents' refusal to produce and have
them examined is tantamount to the denial of his right to procedural due process. They are mistaken.
In this case, petitioners have not particularly identified any documents, witness testimony, or oral or written
presentation of facts submitted at the hearing that would support Cadet 1 CL Cudia's defense. The Court may
require that an administrative record be supplemented, but only "where there is a 'strong showing or bad faith or
improper behavior' on the part of the agency,"173 both of which are not present here. Petitioners have not specifically
indicated the nature of the concealed evidence, if any, and the reason for withholding it. What they did was simply
supposing that Cadet 1 CL Cudia's guilty verdict would be overturned with the production and examination of such
documents, footages, and recordings. As will be further shown in the discussions below, the requested matters,
even if denied, would not relieve Cadet 1 CL Cudia's predicament. If at all, such denial was a harmless procedural
error since he was not seriously prejudiced thereby.
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As to the ostracism in the PMA –
To petitioners, the CRAB considered only biased testimonies and evidence because Special Order No. 1 issued on
February 21, 2014, which directed the ostracism of Cadet 1 CL Cudia, left him without any opportunity, to secure
statements of his own witnesses. He could not have access to or approach the cadets who were present during the
trial and who saw the 8-1 voting result. It is argued that the Order directing Cadet 1 CL Cudia's ostracism is of
doubtful legal validity because the Honor Code unequivocally announced: "x x x But by wholeheartedly dismissing
the cruel method of ostracizing Honor Code violators, PMA will not have to resort to other humiliating means and
shall only have the option to make known among its alumni the names of those who have not sincerely felt remorse
for violating the Honor Code."
On their part, respondents assert that neither the petition nor the petition-in-intervention attached a full text copy of
the alleged Special Order No. 1. In any case, attributing its issuance to PMA is improper and misplaced because of
petitioners' admission that ostracism has been absolutely dismissed as an Academy-sanctioned activity consistent
with the trend in International Humanitarian Law that the PMA has included in its curriculum. Assuming that said
Order was issued, respondents contend that it purely originated from the cadets themselves, the sole purpose of
which was to give a strong voice to the Cadet Corps by declaring that they did not tolerate Cadet 1 CL Cudia's honor
violation and breach of confindentiality of the HC proceedings.
More importantly, respondents add that it is highly improbable and unlikely that Cadet 1 CL Cudia was ostracized by
his fellow cadets. They manifest that as early as January 22, 2014, he was already transferred to the Holding
Center. The practice of billeting an accused cadet at the Holding Center is provided for in the Honor Code
Handbook. Although within the PMA compound, the Holding Center is off-limits to cadets who do not have any
business to conduct therein. The cadets could not also ostracize him during mess times since Cadet 1 CL Cudia
opted to take his meals at the Holding Center. The circumstances obtaining when Special Order No. 1 was issued
clearly foreclose the possibility that he was ostracized in common areas accessible to other cadets. He remained in
the Holding Center until March 16, 2014 when he voluntarily left the PMA. Contrary to his claim, guests were also
free to visit him in the Holding Center.
However, petitioners swear that Cadet 1 CL Cudia suffered from ostracism in the PMA. The practice was somehow
recognized by respondents in their Consolidated Comment and by PMA Spokesperson Maj. Flores in a news report.
The CHR likewise confirmed the same in its Resolution dated May 22, 2014. For them, it does not matter where the
ostracism order originated from because the PMA appeared to sanction it even if it came from the cadets
themselves. There was a tacit approval of an illegal act. If not, those cadets responsible for ostracism would have
been charged by the PMA officials. Finally, it is claimed that Cadet 1 CL Cudia did not choose to take his meals at
the Holding Center as he was not allowed to leave the place. Petitioners opine that placing the accused cadet in the
Holding Center is inconsistent with his or her presumed innocence and certainly gives the implication of ostracism.
We agree with respondents. Neither the petition nor the petition-inintervention attached a full text copy or even a
pertinent portion of the alleged Special Order No. 1, which authorized the ostracism of Cadet 1 CL Cudia. Being
hearsay, its existence and contents are of doubtful veracity. Hence, a definite ruling on the matter can never be
granted in this case.
The Court cannot close its eyes though on what appears to be an admission of Cadet 1 CL Mogol during the CHR
hearing that, upon consultation with the entire class, the baron, and the Cadet Conduct Policy Board, they issued an
ostracism order against Cadet 1 CL Cudia.174 While not something new in a military academy,175 ostracism's
continued existence in the modem times should no longer be countenanced. There are those who argue that the
"silence" is a punishment resulting in the loss of private interests, primarily that of reputation, and that such penalty
may render illusory the possibility of vindication by the reviewing body once found guilty by the HC.176 Furthermore,
in Our mind, ostracism practically denies the accused cadet's protected rights to present witnesses or evidence in
his or her behalf and to be presumed innocent until finally proven otherwise in a proper proceeding.
As to Cadet 1 CL Cudia's stay in the Holding Center, the Court upholds the same. The Honor Code and Honor
System Handbook provides that, in case a cadet has been found guilty by the HC of violating the Honor Code and
has opted not to resign, he or she may stay and wait for the disposition of the case. In such event, the cadet is not
on full-duty status and shall be billeted at the HTG Holding Center.177 Similarly, in the U.S., the purpose of "Boarders
Ward" is to quarter those cadets who are undergoing separation actions. Permitted to attend classes, the cadet is
sequestered , therein until final disposition of the case. In Andrews, it was opined that the segregation of cadets in
the Ward was a proper exercise of the discretionary authority of Academy officials. It relied on the traditional doctrine
that "with respect to decisions made by Army authorities, 'orderly government requires us to tread lightly on the
military domain, with scrupulous regard for the power and authority of the military establishment to govern its own
affairs within the broad confines of constitutional due process.'" Also, in Birdwell v. Schlesinger,178 the "administrative
segregation" was held to be a reasonable exercise of military discipline and could not be considered an invasion of
the rights to freedom of speech and freedom of association.
Late and vague decisions –
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It is claimed that Cadet 1 CL Cudia was kept in the dark as to the charge against him and the decisions arrived at by
the HC, the CRAB, and the PMA. No written decision was furnished to him, and if any, the information was unjustly
belated and the justifications for the decisions were vague. He had to constantly seek clarification and queries just to
be apprised of what he was confronted with.
Petitioners relate that upon being informed of the "guilty" verdict, Cadet 1 CL Cudia immediately inquired as to the
grounds therefor, but Cadet 1 CL Mogol answered that it is confidential since he would still appeal the same. By
March 11, 2014, Maj. Gen. Lopez informed Cadet 1 CL Cudia that the CRAB already forwarded their
recommendation for his dismissal to the General Headquarters sometime in February-March 2014. Even then, he
received no decision/recommendation on his case, verbally or in writing. The PMA commencement exercises
pushed through with no written decision from the CRAB or the PMA on his appeal. The letter from the Office of the
Adjutant General of the AFP was suspiciously delayed when the Cudia family received the same only on March 20,
2014. Moreover, it fell short in laying down with specificity the factual and legal bases used by the CRAB and even
by the Office of the Adjutant General. There remains no proof that the CRAB and the PMA considered the evidence
presented by Cadet 1 CL Cudia, it being uncertain as to what evidence was weighed by the CRAB, whether the
same is substantial, and whether the new evidence submitted by him was ever taken into account.
In refutation, respondents allege the existence of PMA's· practice of orally declaring the HC finding, not putting it in
a written document so as to protect the integrity of the erring cadet and guard the confidentiality of the HC
proceedings pursuant to the Honor System. Further, they aver that a copy of the report of the CRAB, dated March
10, 2014, was not furnished to Cadet 1 CL Cudia because it was his parents who filed the appeal, hence, were the
ones who were given a copy thereof.
Petitioners' contentions have no leg to stand on. While there is a constitutional mandate stating that "[no] decision
shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is
based,"179 such provision does not apply in Cadet 1 CL Cudia's case. Neither Guzman nor Andrews require a
specific form and content of a decision issued in disciplinary proceedings. The Honor Code and Honor System
Handbook also has no written rule on the matter. Even if the provision applies, nowhere does it demand that a point-
by-point consideration and resolution of the issues raised by the parties are necessary.180 What counts is that, albeit
furnished to him late, Cadet 1 CL Cudia was informed of how it was decided, with an explanation of the factual and
legal reasons that led to the conclusions of the reviewing body, assuring that it went through the processes of legal
reasoning. He was not left in the dark as to how it was reached and he knows exactly the reasons why he lost, and
is able to pinpoint the possible errors for review.
As to the blind adoption of the HC findings –
Petitioners assert that, conformably with Sections 30 and 31 of C.A. No. 1, only President Aquino as the
Commander-in-Chief has the power to appoint and remove a cadet for a valid/legal cause. The law gives no
authority to the HC as the sole body to determine the guilt or innocence of a cadet. It also does not empower the
PMA to adopt the guilty findings of the HC as a basis for recommending the cadet's dismissal. In the case of Cadet
1 CL Cudia, it is claimed that the PMA blindly followed the HC's finding of guilt in terminating his military service.
Further, it is the ministerial duty of the CRAB to conduct a review de nova of all records without requiring Cadet 1 CL
Cudia to submit new evidence if it is physically impossible for him to do so. In their minds, respondents cannot claim
that the CRAB and the PMA thoroughly reviewed the HC recommendation and heard Cadet lCL Cudia's side. As
clearly stated in the letter from the Office of the AFP Adjutant General, "[in] its report dated March 10, 2014, PMA
CRAB sustained the findings and recommendations of the Honor Committee x x x It also resolved the appeal filed
by the subject Cadet." However, the Final Investigation Report of the CRAB was dated March 23, 2014. While such
report states that a report was submitted to the AFP General Headquarters on March 10, 2014 and that it was only
on March 12, 2014 that it was designated as a Fact-Finding Board/Investigating Body, it is unusual that the CRAB
would do the same things twice. This raised a valid and well-grounded suspicion that the CRAB never undertook an
in-depth investigation/review the first time it came out with its report, and the Final Investigation Report was drafted
merely as an afterthought when the lack of written decision was pointed out by petitioners so as to remedy the
apparent lack of due process during the CRAB investigation and review.
Despite the arguments, respondents assure that there was a proper assessment of the procedural and legal
correctness of the guilty verdict against Cadet 1 CL Cudia. They assert that the higher authorities of the PMA did not
merely rely on the findings of the HC, noting that there was also a separate investigation conducted by the HTG
from January 25 to February 7, 2014. Likewise, contrary to the contention of petitioners that the CRAB continued
with the review of the case despite the absence of necessary documents, the CRAB conducted its own review of the
case and even conducted another investigation by constituting the Fact-Finding Board/Investigating Body. For
respondents, petitioners failed to discharge the burden of proof in showing bad faith on the part of the PMA. In the
absence of evidence to the contrary and considering further that petitioners' allegations are merely self-serving and
baseless, good faith on the part of the PMA' s higher authorities is presumed and should, therefore, prevail.
We agree with respondents.
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The Honor Committee, acting on behalf of the Cadet Corps, has a limited role of investigating and determining
whether or not the alleged offender has actually violated the Honor Code.181 It is given the responsibility of
administering the Honor Code and, in case of breach, its task is entirely investigative, examining in the first instance
a suspected violation. As a means of encouraging self-discipline, without ceding to it any authority to make final
adjudications, the Academy has assigned it the function of identifying suspected violators.182 Contrary to petitioners'
assertion, the HC does not have the authority to order the separation of a cadet from the Academy. The results of its
proceedings are purely recommendatory and have no binding effect. The HC determination is somewhat like an
indictment, an allegation, which, in Cadet 1 CL Cudia's case, the PMA-CRAB investigated de novo.183 In the U.S., it
was even opined that due process safeguards do not actually apply at the Honor Committee level because it is only
a "charging body whose decisions had no effect other than to initiate de nova proceedings before a Board of
Officers."184
Granting, for argument's sake, that the HC is covered by the due process clause and that irregularities in its
proceedings were in fact committed, still, We cannot rule for petitioners. It is not required that procedural due
process be afforded at every stage of developing disciplinary action. What is required is that an adequate hearing be
held before the final act of dismissing a cadet from the military academy.185 In the case of Cadet 1 CL Cudia, the
OIC of HC, the SJA, the Commandant of Cadets, and the PMA Superintendent reviewed the HC findings. A
separate investigation was also conducted by the HTG. Then, upon the directive of the AFP-GHQ to reinvestigate
the case, a review was conducted by the CRAB. Finally, a Fact-Finding Board/Investigating Body composed of the
CRAB members and the PMA senior officers was constituted to conduct a deliberate investigation of the case. The
Board/Body actually held hearings on March 12, 13, 14 and 20, 2014. Instead of commendation, petitioners find it
"unusual" that the CRAB would do the same things twice and suspect that it never undertook an in-depth
investigation/review the first time it came out with its report. Such assertion is mere conjecture that deserves scant
consideration.
As to the dismissal proceedings as sham trial –
According to petitioners, the proceedings before the HC were a sham. The people behind Cadet ICL Cudia's charge,
investigation, and conviction were actually the ones who had the intent to deceive and who took advantage of the
situation. Cadet 1 CL Raguindin, who was a senior HC member and was the second in rank to Cadet 1 CL Cudia in
the Navy cadet 1 CL, was part of the team which conducted the preliminary investigation. Also, Cadet I CL Mogol,
the HC Chairman, previously charged Cadet 1 CL Cudia with honor violation allegedly for cheating (particularly,
conniving with and tutoring his fellow cadets on a difficult topic by giving solutions to a retake exam) but the charge
was dismissed for lack of merit. Even if he was a non-voting member, he was in a position of influence and authority.
Thus, it would be a futile exercise for Cadet 1 CL Cudia to resort to the procedure for the removal of HC
members.186
Further, no sufficient prior notice of the scheduled CRAB hearing was given to Cadet I CL Cudia, his family, or his
PAO counsel. During one of her visits to him in the Holding Center, petitioner-intervenor was advised to convince his
son to resign and immediately leave the PMA. Brig. Gen. Costales, who later became the CRAB Head, also
categorically uttered to Annavee: "Your brother, he lied!" The CRAB conferences were merely used to formalize his
dismissal and the PMA never really intended to hear his side. For petitioners, these are manifestations of PMA's
clear resolve to dismiss him no matter what.
For their part, respondents contend that the CllR's allegation that Maj. Hindang acted in obvious bad faith and that
he failed to discharge his duty to be a good father of cadets when he "paved the road to [Cadet 1 CL Cudia's] sham
trial by the Honor Committee" is an unfounded accusation. They note that when Maj. Hindang was given the DR of
Cadet 1 CL Cudia, he revoked the penalty awarded because of his explanation. However, all revocations of
awarded penalties are subject to the review of the STO. Therefore, it was at the instance of Maj. Leander and the
established procedure followed at the PMA that Maj. Hindang was prompted to investigate the circumstances
surrounding Cadet 1 CL Cudia's tardiness. Respondents add that bad faith cannot likewise be imputed against Maj.
Hindang by referring to the actions taken by Maj. Jekyll Dulawan, the CTO of Cadets 1 CL Narciso and Arcangel
who also arrived late for their next class. Unlike the other cadets, Cadet 1 CL Cudia did not admit his being late and
effectively evaded responsibility by ascribing his tardiness to Dr. Costales.
As to the CHR' s finding that Cadet 1 CL Mogol was likewise "in bad faith and determined to destroy [Cadet 1 CL]
Cudia, for reasons of his own" because the former previously reported the latter for an honor violation in November
2013, respondents argue that the bias ascribed against him is groundless as there is failure to note that Cadet 1 CL
Mogol was a non-voting member of the HC. Further, he cannot be faulted for reporting a possible honor violation
since he is the HC Chairman and nothing less is expected of him. Respondents emphasize that the representatives
of the HC are elected from each company, while the HC Chairman is elected by secret ballot from the incoming first
class representatives. Thus, if Cadet 1 CL Cu'dia believed that there was bias against him, he should have resorted
to the procedure for the removal of HC members provided for in the Honor Code Handbook.
Finally, respondents declare that there is no reason or ill-motive on the part of the PMA to prevent Cadet 1 CL Cudia
from graduating because the Academy does not stand to gain anything from his dismissal. On the contrary, in view
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of his academic standing, the separation militates against PMA' s mission to produce outstanding, honorable, and
exceptional cadets.
The Court differs with petitioners.
Partiality, like fraudulent intent, can never be presumed. Absent some showing of actual bias, petitioners' allegations
do not hold water. The mere imputation of ill-motive without proof is speculative at best. Kolesa teaches us that to
sustain the challenge, specific evidence must be presented to overcome
a presumption of honesty and integrity in those serving as adjudicators; and it must convince that,
under a realistic appraisal of psychological tendencies and human weaknesses, conferring
investigative and adjudicative powers on the same individual poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee of due process is to be
implemented.187
Although a CTO like Maj. Hindang must decide whether demerits are to be awarded, he is not an adversary of the
cadet but an educator who shares an identity of interest with the cadet, whom he counsels from time to time as a
future leader.188 When the occasion calls for it, cadets may be questioned as to the accuracy or completeness of a
submitted work. A particular point or issue may be clarified. In this case, the question asked of Cadet 1 CL Cudia
concerning his being late in class is proper, since there is evidence indicating that a breach of regulation may have
occurred and there is reasonable cause to believe that he was involved in the breach of regulations.189
For lack of actual proof of bad faith or ill-motive, the Court shall rely on the non-toleration clause of the Honor Code,
i.e., "We do not tolerate those who violate the Code." Cadets are reminded that they are charged with a tremendous
duty far more superior to their personal feeling or friendship.190 They must learn to help others by guiding them to
accept the truth and do what is right, rather than tolerating actions against truth and justice.191 Likewise, cadets are
presumed to be characteristically honorable; they cannot overlook or arbitrarily ignore the dishonorable action of
their peers, seniors, or subordinates.192 These are what Cadet 1 CL Mogol exactly did, although he was later proven
to have erred in his accusation. Note that even the Honor Code and Honor System Handbook recognizes that
interpretation of one's honor is generally subjective.193
Moreover, assuming, for the sake of argument, that Cadets 1 CL' Raguindin and Mogol as well as Brig. Gen.
Costales have an axe to grind against Cadet 1 CL Cudia and were bent on causing, no matter what, the latter's
downfall, their nefarious conduct would still be insignificant. This is so since the HC (both the preliminary and formal
investigation), the CRAB, and the Fact-Finding Board/Investigating Body are collegial bodies. Hence, the claim that
the proceedings/hearings conducted were merely a farce because the three personalities participated therein is
tantamount to implying the existence of a conspiracy, distrusting the competence, independence, and integrity of the
other members who constituted the majority. Again, in the absence of specifics and substantial evidence, the Court
cannot easily give credence to this baseless insinuation.
As to the HC executive session/chambering –
Petitioners narrate that there was an irregular administrative hearing in the case of Cadet 1 CL Cudia because two
voting rounds took place. After the result of the secret balloting, Cadet 1 CL Mogol ordered the voting members to
go to a room without the cadet recorders. Therein, the lone dissenter, Cadet lCL Lagura, was asked to explain his
"not guilty" vote. Pressured to change his vote, he was made to cast a new one finding Cadet 1 CL Cudia guilty. The
original ballot was discarded and replaced. There was no record of the change in vote from 8-1 to 9-0 that was
mentioned in the HC formal report.
The Affidavit of Commander Junjie B. Tabuada executed on March 6, 2014 was submitted by petitioners since he
purportedly recalled Cadet 1 CL Lagura telling him that he was pressured to change his "not guilty" vote after the
voting members were "chambered." In the sworn statement, Commander Tabuada said:
1. That after CDT lCL CUDIA [was] convicted for honor violation, I [cannot] remember exactly the date but
sometime in the morning of 23rd or 24th of January 2014, I was in my office filling up forms for the renewal of
my passport, CDT 1CL LAGURA entered and had business with my staff;
2. When he was about to leave I called him. "Lags, halika muna dito," and he approached me and I let him sit
down on the chair in front of my table. I told and asked him, "Talagang nadali si Cudia ah ... ano ha ang
nangyari? Mag-Tagalog or mag-Bisaya ka." He replied, "Talagang NOT GUILTY ang vote ko sa kanya sir",
and I asked him, "Oh, bakit naging guilty di ha pag may isang nag NOT GUILTY, abswelto na? He replied
"Chinamber ako sir, bale pinapa-justify kung bakit NOT GUILTY vote ko, at na-pressure din ako sir kaya
binago ko, sir." So, I told him, "Sayang sya, matalino at mabait pa naman" and he replied "oo nga sir". After
that conversation, I let him go.194
It is claimed that the HC gravely abused its discretion when it committed voting manipulation since, under the rules,
it is required to have a unanimous nine (9) votes finding an accused cadet guilty. There is nothing in the procedure
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that permits the HC Chairman to order the "chambering" of a member who voted contrary to the majority and
subjects him or her to reconsider in order to reflect a unanimous vote. Neither is there an order from the Chief of
Staff or the President sanctioning the HC procedure or approving any change therein pursuant to Sections 30 and
31 of C.A. No. 1. The HC, the CRAB, and the PMA violated their own rules and principles as embodied in the Honor
Code. Being a clear deviation from the established procedures, the second deliberation should be considered null
and void.
Petitioners further contend that the requirement of unanimous vote involves a substantive right which cannot be
unceremoniously changed without a corresponding amendment/revision in the Honor Code and Honor System
Handbook. In their view, "chambering" totally defeats the purpose of voting by secret ballot as it glaringly destroys
the very essence and philosophy behind the provisions of the Honor System, which is to ensure that the voting
member is free to vote what is in his or her heart and mind and that no one can pressure or persuade another to
change his or her vote. They suggest that if one voting member acquits an accused cadet who is obviously guilty of
the offense, the solution is to remove him or her from the HC through the vote of non-confidence as provided for in
the Honor Code.195 Anent the above arguments, respondents contend that a distinction must be made between the
concepts of the Honor Code and the Honor System. According to them, the former sets the standard for a cadet's,
minimum ethical and moral behavior and does not change, while the latter is a set of rules for the conduct of the
observance and implementation of the· Honor Code and may undergo necessary adjustments as may be warranted
by the incumbent members of the HC in order to be more responsive to the moral training and character
development of the cadets. The HC may provide guidelines when the Honor System can be used to supplement
regulations. This being so, the voting process is continuously subject to change.
Respondents note that, historically, a non-unanimous guilty verdict automatically acquits a cadet from the charge of
Honor violation. The voting members only write either "guilty" or "not guilty" in the voting sheets without stating their
name or their justification. However, this situation drew criticisms since there were instances where a reported cadet
already admitted his honor violation but was acquitted due to the lone vote of a sympathetic voting member.
In the case of Cadet 1 CL Cudia, the HC adopted an existing practice that should the voting result in 7-2 or 8-1 the
HC would automatically sanction a jury type of discussion called "executive session" or "chambering," which is
intended to elicit the explanation and insights of the voting member/s. This prevents the tyranny of the minority or
lone dissenter from prevailing over the manifest proof of guilt. The assailed voting practice has been adopted and
widely accepted by the PMA Siklab Diwa Class of 2014 since their first year in the Academy. The allegations of
conspiracy and sham trial are, therefore, negated by the fact that such practice was in place and applied to all cases
of honor violations, not solely to the case of Cadet 1CL Cudia.
It is emphasized by respondents that any decision to change vote rests solely on the personal conviction of the
dissenter/s, without any compulsion from the other voting members. There can also be no pressuring to change
one's vote to speak of since a vote may only be considered as final when the Presiding Officer has affixed his
signature.
To debunk Commander Tabuada's statements, respondents raise the argument that the Fact-Finding
Board/Investigating Body summoned Cadet 1 CL Lagura for inquiry. Aside from his oral testimony made under oath,
he submitted to the Board/Body an affidavit explaining that:
11. Sometime on 23rd or 24th of January 2014, I went to the Department of Naval Warfare to ask
permission if it is possible not to attend the Navy duty for the reason that I will be attending our baseball
game outside the Academy.
12. After I was permitted not to attend my Navy Duty and when I was about to exit out of the Office,
CDR JUNJIE B T ABU ADA PN, our Head Department Naval Warfare Officer, called my attention. I
approached him and he said: "Talagang nadali si Cudia ah. Ano ba talaga ang nangyari?" At first, I was
hesitant to answer because of the confidentiality of the Honor Committee proceedings. He again said:
"Wag kang mag-alala, atin, atin lang ito, alam ko naman na bawal magsabi." Then I answered: "Ako
yung isang not guilty Sir. Kaya [yung] Presiding Officer nagsabi na pumunta muna kami sa Chamber.
Nung nasa chamber kami, nagsalita [yung] mga nagvote ng Guilty tapos isa-isa nagsabi kung bakit ang
boto nila Guilty. Nung pakinggan ko, eh naliwanagan ako. Pinalitan ko yung boto ko from Not Guilty to
Guilty Sir." He replied: "Sayang si Cudia ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa
naman at matalino."196
Cadet 1 CL Lagura restated the above in the Counter-Affidavit executed on March 12, 2014, which he submitted
before the CHR wherein he attested to the following:
3. I was chosen to be a voting member of the Honor Committee for Honor Code violation committed by Cadet
Cudia, for "lying". As a voting member, we are the one who assess or investigate the case whether the
reported Cadet is Guilty for his actions or not.
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4. I was the only one who INITIALLY voted "NOT GUILTY" among the nine (9) voting members of the Honor
Committee in the case of Cdt Cudia for Lying.
5. I initially voted "NOT GUILTY" for the reason that after the proceedings and before the presiding Officer told
the members to vote, I was confused of the case of Cadet Cudia. I have gathered some facts from the
investigation to make my decision but for me it is not yet enough to give my verdict of guilty to Cdt Cudia so I
decided to vote "NOT GUILTY" with a reservation in my mind that we will still be discussing our verdicts if we
will arrive at 8-1 or 7-2. Thus, I can still change my vote if I may be enlightened with the other's justifications.
6. After the votes were collected, the Presiding Officer told us that the vote is 8 for guilty and 1 for not guilty.
By way of practice and as I predicted, we were told to go inside the anteroom for executive meeting and to
discuss our respective justifications. I have been a member for two (2) years and the voting committee will
always go for executive meeting whenever it will meet 8-1 or 7-2 votes.
7. I listened to them and they listened to me, then I saw things that enlightened my confusions that time. I
gave a thumbs-up sign and asked for another sheet of voting paper. I then changed my vote from "NOT
GUILTY" to "GUILTY" and the voting members of the Honor Committee came up with the final vote of nine (9)
votes for guilty and zero (0) votes for not guilty.
9. Cdt Cudia was called inside the courtroom and told that the verdict was GUILTY of LYING. After that, all
persons inside the courtroom went back to barracks.
10. Right after I changed to sleeping uniform, I was approached by Cdt Jocson and Cdt Cudia, inquiring and
said: "Bakit ka naman nagpalit ng boto? ., I answered: "Nasa process yan, may mali talaga sa rason mo."
They also asked who were inside the Chamber and I mentioned only Cdt Arlegui and Cdt Mogol. That was the
last time that Cdt Cudia and Cdt Jocson talked to me.
11. Sometime on 23rd or 24th of January 2014, I went to the Department of Naval Warfare to asked (sic)
permission if it is possible not to attend the Navy duty for the reason that I will be attending our baseball game
outside the Academy.
12. After I was permitted not to attend my Navy Duty and when I was about to exit out of the Office, CDR
JUNJIE B TABUADA PN, our Head Department Naval Warfare Officer, called my attention. I approached him
and he said: "Talagang nadali si Cudia ah. Ano ba talaga ang nangyari?" At first, I was hesitant to answer
because of the confidentiality of the Honor Committee proceedings. He again said: "Wag kang mag-alala,
atin, atin lang ito, alam ko naman na bawal magsabi. " Then I answered: "Ako yung isang not guilty Sir. Kaya
[yung} Presiding Officer nagsabi na pumunta muna kami sa Chamher. Nung nasa chamber kami, nagsalita
[yung] mga nagvote ng Guilty tapos isa-isa nagsabi kung bakit ang boto nila Guilty. Nung pakinggan ko, eh
naliwanagan aka. Pinalitan ko yung boto ko from Not Guilty to Guilty Sir. " He replied: "Sayang si Cudia ano?"
And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa naman at matalino. "197
Still not to be outdone, petitioners argue that the very fact that Cadet 1 CL Lagura, as the lone dissenter, was made
to explain in the presence of other HC members, who were in disagreement with him, gives a semblance of
intimidation, force, or pressure. For them, the records of the HC proceedings, which were not presented assuming
they actually exist, could have been the best way to ensure that he was free to express his views, reject the opinion
of the majority, and stick to his decision. Also, it was pointed out that Cadet 1 CL Lagura failed to clearly explain in
his affidavit why he initially found Cadet 1 CL Cudia "not guilty" and what made him change his mind. His use of
general statements like he "was confused of the case " and "saw things that enlightened my confusions " could
hardly suffice to establish why he changed his vote. Finally, petitioners note the admission of ·Cadet 1 CL Lagura
during the CHR investigation that he was the only one who was given another ballot sheet while in the chamber and
that he accomplished it in the barracks which he only submitted the following day. However, as the CHR found, the
announcement of the 9-0 vote was done immediately after the HC came out from the chamber and before Cadet 1
CL Lagura submitted his accomplished ballot sheet.
We rule for respondents.
As to the manner of voting by the HC members, the Honor Code tersely provides:
After a thorough discussion and deliberation, the presiding member of the Board will call for the members to vote
whether the accused is GUILTY or NOT GUILTY. A unanimous vote (9 votes) of GUILTY decides that a cadet is
found guilty of violating the Honor Code.198
From the above-quoted provision, it readily appears that the HC practice of conducting "executive session" or
"chambering" is not at all prohibited. The HC is given leeway on the voting procedures in' actual cases taking into
account the exigency of the times. What is important is that, in the end, there must be a unanimous nine votes in
order to hold a cadet guilty of violating the Honor Code.
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Granting, for argument's sake, that the HC violated its written procedure,199 We still rule that there is nothing
inherently wrong with the practice of "chambering" considering that the presence of intimidation or force cannot
automatically be inferred therefrom. The essence of secret balloting and the freedom to vote based on what is in the
heart and mind of the voting member is not necessarily diluted by the fact that a second/final voting was conducted.
As explained by Cadet 1CL Mogol before the CRAB:
13. x x x [The] dissenting voter would have to explain his side and insights regarding the case at hand.
The other members, on the other hand, would be given the chance to explain their votes as well as
their insights to the dissenting voter. The decision to change the vote of the dissenting voter rests solely
on his personal conviction. Thus, if he [or she] opted not to change his/her vote despite the discussion,
his [or her] vote is accorded respect by the Honor Committee.200
It is elementary that intimidation or force is never presumed. Mere allegation is definitely not evidence. It must be
1âwphi1
substantiated and proved because a person is presumed to be innocent of a crime or wrong and that official duty
has been regularly performed.201
The oral and written statements of Cadet 1 CL Lagura should settle the issue. Before the Fact-Finding
Board/Investigating Body and the CHR, he consistently denied that he was pressured by the other voting members
of the HC. His representation must be accepted as it is regardless of whether he has satisfactorily elaborated his
decision to change his vote. Being the one who was "chambered," he is more credible to clarify the issue. In case of
doubt, We have to rely on the faith that Cadet 1 CL Lagura observed the Honor Code, which clearly states that
every cadet must be his or her own Final' Authority in honor; that he or she should not let other cadets dictate on
him or her their sense of honor.202 Moreover, the Code implies that any person can have confidence that a cadet
and any graduate of the PMA will be fair and just in dealing with him; that his actions, words and ways are sincere
and true.203
As to the other alleged "irregularities" committed such as not putting on record the initial/first voting and Cadet 1CL
Lagura's bringing of his ballot sheet to and accomplishing it in the barracks, the Court shall no longer dwell on the
same for being harmless procedural errors that do not materially affect the validity of the HC proceedings.
Cadet 1 CL Cudia 's alleged untruthful statements
Petitioners insist that Cadet 1 CL Cudia did not lie. According to them, there is no clear time reference as to when
was the actual dismissal or what was the exact time of dismissal - whether it should be the dismissal inside the room
or the dismissal after the section grade was given by Dr. Costales -in the minds of Cadet 1 CL Cudia, Maj. Hindang,
and the HC investigators and voting members. They claim that during long examinations, the time of dismissal was
usually five minutes before the class was set to end and the protocol of dismissing the class 15 minutes earlier was
not observed. When Maj. Hindang stated in accusatory language that Cadet 1 CL Cudia perverted the truth by
stating that OR432 class ended at 1500H, he did not state what was the true time of dismissal. He did not mention
whether the truth he was relying on was 5 or 15 minutes before the scheduled end of class.
It is also averred that Cadet 1 CL Cudia's only business was to ask Dr. Costales a query such that his business was
already finished as soon as she gave an answer. However, a new business was initiated by Dr. Costales, which is,
Cadet 1 CL Cudia must stay and wait for the section grade. At that point in time, he was no longer in control of the
circumstances. Petitioners claim that Dr. Costales never categorically stated that Cadet lCL Cudia was lying. She
recognized the confusion. Her text messages to him clarified his alleged violation. Also, the CHR noted during its
investigation that she could not exactly recall what happened in her class on November 14, 2013.
Furthermore, petitioners reasoned out that when respondents stated that ENG412 class started at 3:05 p.m., it
proves that Cadet 1 CL Cudia was obviously not late. If, as indicated in his Delinquency Report, he was late two (2)
minutes in his 1500-1600H class in ENG 412, he must have arrived 3:02 p.m. Respondents, however, claim that the
class started at 3:05 p.m. Thus, Cadet 1 CL Cudia was not late.
Relative to his explanation to the delinquency report, petitioners were of the view that what appears to have caused
confusion in the minds of respondents is just a matter of semantics; that the entire incident was a product of
inaccuracy, not lying. It is malicious for them to insinuate that Cadet 1 CL Cudia purposely used incorrect language
to hide the truth. Citing Merriam Webster's Dictionary, petitioners argue that "dismiss" means to permit or cause to
leave, while "class" refers to a body of students meeting regularly to study the same subject. According to them,
these two words do not have definite and precise meanings but are generic terms. Other than the words "class" and
"dismiss" used by Cadet 1 CL Cudia, which may actually be used in their generic sense, there is nothing deceiving
about what he said. Thus, the answer he chose might be wrong or not correct, but it is not false or not true.
For petitioners, Cadet lCL Cudia's explanations are evidently truthful and with no intent to deceive or mislead. He did
not manipulate any fact and was truthful of his explanation. His .. statements were clear and unambiguous but were
given a narrow-minded interpretation. Even the Honor Code acknowledges that "[e]xperience demonstrates that
human communication is imperfect at best, and some actions are often misinterpreted."
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Lastly, petitioners contend that Cadet 1 CL Cudia's transcript of records reflects not only his outstanding academic
performance but proves his good conduct during his four-year stay in the Academy. He has above-average grades
in Conduct, with grades ranging from 96 to 100 in Conduct I to XI. His propensity to lie is, therefore, far from the
truth.
On the other hand, respondents were equally adamant to contend that Cadet 1 CL Cudia was obviously quibbling,
which, in the military parlance, is tantamount to lying. He fell short in telling a simple truth. He lied by making
untruthful statements in his written explanation. Respondents want Us to consider the following:
First, their OR432 class was not dismissed late. During the formal investigation, Dr. Costales testified
that a class is dismissed as long as the instructor is not there and the bell has rung. In cases of lesson
examinations (LE), cadets are dismissed from the time they have answered their respective LEs. Here,
as Cadet Cudia stated in his Request for Reconsideration of Meted Punishment, "We had an LE that
day (14 November 2013) in OR432 class. When the first bell rang (1455), I stood up, reviewed my
paper and submitted it to my instructor, Ms. Costales. xxx" Clearly, at the time Cadet Cudia submitted
his papers, he was already considered dismissed. Thus, he cannot claim that his [OR432] class ended
at 3:00 in the afternoon (1500H) or "a bit late."
Second, Cadet Cudia was in control of the circumstances leading to his tardiness. After submitting his
paper, Cadet Cudia is free to leave and attend his next class. However, he initiated a conversation with
Dr. Costales regarding their grades. He was not under instruction by Dr. Costales to stay beyond the
period of her class.
Furthermore, during the investigation of the Fact-Finding Board/Investigating Body, Dr. Costales
clarified her statements in her written explanation. She explained that the "instruction to wait" is a
response to Cadet Cudia' s request and that it was not her initiated instruction. Clearly, there was no
directive from Dr. Costales for Cadet Cudia and the other cadets to stay. On the contrary, it was them
who wanted to meet with the instructor. Third, contrary to Cadet Cudia's explanation, his subsequent
class, ENG412, did not exactly start at 3:00 in the afternoon (1500H). In the informal review conducted
by the HTG to check the findings of the HC, Professor Berong confirmed that her English class started
as scheduled (3:05 in the afternoon, or 1505H) and not earlier. Cadet 1 CL Barrawed, the acting class
marcher of ENG412 also testified that their class started as scheduled (3 :05 in the afternoon, or 1505)
and not earlier.204
Respondents were unimpressed with the excuse that Cadet 1 CL Cudia had no intention to mislead or deceive but
merely used wrong and unfitting words in his explanations. For them, considering his academic standing, it is highly
improbable that he used incorrect language to justify his mistake. Respondents' arguments are tenable.
The issue of whether Cadet 1 CL Cudia committed lying is an issue of fact. Unfortunately for petitioners, the Court,
not being a trier of facts, cannot pass upon factual matters as it is not duty-bound to analyze and weigh again the
evidence considered in the proceedings below. Moreover, We reiterate the long standing rule that factual findings of
administrative tribunals are ordinarily accorded respect if not finality by the Court. In this case, as shown in the
previous discussions, there is no evidence that the findings of the investigating and reviewing bodies below are not
supported by evidence or vitiated by fraud, imposition or collusion; that the procedure which led to the findings is
irregular; that palpable errors were committed; or that a grave abuse of discretion, arbitrariness, or capriciousness is
manifest. With respect to the core issue of whether lying is present in this case, all investigating and reviewing
bodies are in consonance in holding that Cadet 1 CL Cudia in truth and in fact lied.
For purposes of emphasis though, We shall supplement some points.
As succinctly worded, the Honor Code of the Cadet Corps Armed Forces of the Philippines (CCAFP) states: "We,
the Cadets, do not lie, cheat, steal, nor tolerate among us those who do. "
The First Tenet of the Honor-Code is "We do not lie. " Cadets violate the Honor Code by lying if they make an oral or
written statement which is contrary to what is true or use doubtful information with the intent to deceive or
mislead.205 It is expected that every cadet's word is accepted without challenge on its truthfulness; that it is true
without qualification; and that the cadets must answer directly, completely and truthfully even though the answer
may result in punitive action under the CCPB and CCAFPR.206
To refresh, in his Explanation of Report dated December 8, 2013, Cadet 1 CL Cudia justified that: "I came directly
from OR432 Class. We were dismissed a bit late by our instructor Sir." Subsequently, in his Request for
Reconsideration of Meted Punishment to Maj. Leander, he reasoned out as follows:
I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H and our 5th period
class, which is ENG412, started 1500H also. Immediately after 4t period class, I went to my next class without any
intention of being late Sir.207
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In this case, the Court agrees with respondents that Cadet 1 CL Cudia committed quibbling; hence, he lied in
violation of the Honor Code.
Following an Honor Reference Handbook, the term "Quibbling" has been defined in one U.S. case as follows:
A person can easily create a false impression in the mind of his listener by cleverly wording what he says, omitting
relevant facts, or telling a partial truth. When he knowingly does so with the intent to deceive or mislead, he is
quibbling. Because it is an intentional deception, quibbling is a form of lying.208
The above definition can be applied in the instant case. Here, instead of directly and completely telling the cause of
his being late in the ENG412 class of Prof. Berong, Cadet 1 CL Cudia chose to omit relevant facts, thereby, telling a
half-truth.
The two elements that must be presented for a cadet to have committed an honor violation are:
1. The act and/or omission, and
2. The intent pertinent to it.
Intent does not only refer to the intent to violate the Honor Code, but intent to commit or omit the act itself.209
The basic questions a cadet must always seek to answer unequivocally are:
1. Do I intend to deceive?
2. Do I intend to take undue advantage?
If a cadet can answer NO to BOTH questions, he or she is doing the honorable thing.210
Intent, being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts, and
therefore, can only be proved by unguarded expressions, conduct and circumstances generally.211 In this case,
Cadet 1 CL Cudia's intent to deceive is manifested from the very act of capitalizing on the use of the words "dismiss"
and "class." The truth of the matter is that the ordinary usage of these two terms, in the context of an educational
institution, does not correspond to what Cadet 1 CL Cudia is trying to make it appear. In that sense, the words are
not generic and have definite and precise meaning.
By no stretch of the imagination can Cadets 1 CL Cudia, Miranda, Arcangel, and Narciso already constitute a
"class." The Court cannot agree that such term includes "every transaction and communication a teacher does with
her students." Clearly, it does not take too much intelligence to conclude that Cadet 1 CL Cudia should have been
accurate by pinpointing who were with him when he was late in the next class. His deceptive explanation is made
more obvious when compared with what Cadets 1 CL Archangel and Narciso wrote in their DR explanation, which
was: "We approached our instructor after our class."212
Further, it is unimportant whether the time of dismissal on November 14, 2013 was five or fifteen minutes ahead of
the scheduled end of class. Worth noting is that even Dr. Costales, who stood as a witness for Cadet 1 CL Cudia,
consistently admitted before the HC, the Fact-Finding Board/Investigating Body, and the CHR that he was already
dismissed when he passed his LE paper.213 During the hearing of the Board/Body, she also declared that she merely
responded to his request to see the results of the UE 1 and that she had reservations on the phrases "under my
instruction" and "dismissed a bit late" used in his letter of explanation to the HC. In addition, Dr. Costales manifested
her view before the CHR that the act of Cadet 1 CL Cudia of inquiring about his grade outside their classroom after
he submitted his LE paper is not part of the class time because the consultation, being cadet-initiated, is
voluntary.214 Assuming, for the sake of argument, that a new business was initiated by Dr. Costales when Cadet 1
CL Cudia was asked to stay and wait for the section grade, still, this does not acquit him. Given such situation, a
responsible cadet who is fully aware of the time constraint has the last say, that is, to politely decline the invitation
and immediately go to the next class. This was not done by Cadet 1 CL Cudia. Thus, it cannot be said that he
already lost control over the circumstances.
It is apparent, therefore, that Cadet 1 CL Cudia cunningly chose words which led to confusion in the minds of
respondents and eventually commenced the HC inquiry. His case is not just a matter of semantics and a product of
plain and simple inaccuracy. There is manipulation of facts and presentation of untruthful explanation constitutive of
Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1 CL Cudia .. While his Transcript of Records (TOR) may reflect
not only his outstanding academic performance but his excellent grade in subjects on Conduct during his four-year
stay in the PMA,215 it does not necessarily follow that he is innocent of the offense charged. It is enough to say that
"evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do
the same or similar thing at another time."216 While the TOR may be received to prove his identity or habit as an
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exceptional PMA student, it does not show his specific intent, plan, or scheme as cadet accused of committing a
specific Honor Code violation.
Dismissal from the PMA as unjust and cruel punishment
Respondents insist that violation of the Honor Code warrants separation of the guilty cadet from the cadet corps.
Under the Cadet Corps Armed Forces of the Philippines Regulation (CCAFPR), a violation of the Cadet Honor Code
is considered Grave (Class 1) delinquency which merits a recommendation for a cadet's dismissal from the PMA
Superintendent. The same is likewise clear from the Honor Code and Honor System Handbook. Cadet 1 CL Cudia
is, therefore, presumed to know that the Honor Code does not accommodate a gradation or degree of offenses.
There is no difference between a little lie and a huge falsehood. Respondents emphasize that the Honor Code has
always been considered as an absolute yardstick against which cadets have measured themselves ever since the
PMA began and that the Honor Code and System seek to assure that only those who are able to meet the high
standards of integrity and honor are produced by the PMA. As held in Andrews, it is constitutionally permissible for
the military "to set and enforce uncommonly high standards of conduct and ethics. " Thus, in violating the Honor
Code, Cadet 1 CL Cudia forfeits his privilege to graduate from the PMA.
On their part, petitioners concede that if it is proven that a cadet breached the Honor Code, the offense warrants his
or her dismissal since such a policy may be the only means to maintain and uphold the spirit of integrity in the
military.217 They maintain though that in Cadet 1 CL Cudia's case there is no need to distinguish between a "little lie"
and a "huge falsehood" since he did not lie at all. Absent any intent to deceive and to take undue advantage, the
penalty imposed on him is considered as unjust and cruel. Under the circumstances obtaining in this case, the
penalty of dismissal is not commensurate to the fact that he is a graduating cadet with honors and what he allegedly
committed does not amount to an academic deficiency or an intentional and flagrant violation of the PMA non-
academic rules and regulations. Citing Non, petitioners argue that the penalty imposed must be proportionate to the
offense. Further, lsabelo, Jr. is squarely applicable to the facts of the case. Cadet 1 CL Cudia was deprived of his
right to education, the only means by which he may have a secure life and future.
Considering Our finding that Cadet 1 CL Cudia in truth and in fact lied and his acceptance that violation of the Honor
Code warrants the ultimate penalty of dismissal from the PMA, there is actually no more dispute to resolve. Indeed,
the sanction is clearly set forth and Cadet 1 CL Cudia, by contract, risked this when he entered the Academy.218 We
adopt the ruling in Andrews219 wherein it was held that, while the penalty is severe, it is nevertheless reasonable and
not arbitrary, and, therefore, not in violation of due process. It quoted the disposition of the district court, thus:
The fact that a cadet will be separated from the Academy upon a finding that he has violated the Honor Code is
known to all cadets even prior to the beginning of their careers there. The finding of a Code violation by hypothesis
includes a finding of scienter on the part of the offender. While separation is admittedly a drastic and tragic
consequence of a cadet's transgression, it is not an unconstitutionally arbitrary one, but rather a reasonable albeit
severe method of preventing men who have suffered ethical lapses from becoming career officers. That a policy of
admonitions or lesser penalties for single violations might be more compassionate --or even more effective in
achieving the intended result --is quite immaterial to the question of whether the harsher penalty violates due
process.220
Nature of the CHR Findings
Petitioners contend that the PMA turned a blind eye on the CHR's recommendations. The CHR, they note, is a
constitutional body mandated by the 1987 Constitution to investigate all forms of human rights violations involving
civil and political rights, and to conduct investigative monitoring of economic, social, and cultural rights, particularly
of vulnerable sectors of society. Further, it was contended that the results of CHR's investigation and
recommendations are so persuasive that this Court, on several occasions like in the cases of Cruz v. Sec. of
Environment & Natural Resources221 and Ang Ladlad LGBT Party v. Commission on Elections,222 gave its findings
serious consideration. It is not, therefore, too late for the Court to hear what an independent and unbiased fact-
finding body has to say on the case.
In opposition, respondents assert that Simon, Jr. v. Commission on Human Rights223 ruled that the CHR is merely a
recommendatory body that is not empowered to arrive at a conclusive determination of any controversy.
We are in accord with respondents.
The findings of fact and the conclusions of law of the CHR are merely recommendatory and, therefore, not binding
to this Court. The reason is that the CHR's constitutional mandate extends only to the investigation of all forms of
human rights violations involving civil and political rights.224 As held in Cariño v. Commission on Human Rights225
and a number of subsequent cases,226 the CHR is only a fact-finding body, not a court of justice or a quasi-judicial
agency. It is not empowered to adjudicate claims on the merits or settle actual case or controversies. The power to
investigate is not the same as adjudication:
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The most that may be conceded to the Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact-finding is not adjudication, and cannot be likened to the
judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual conclusions to
the end that the controversy may be decided or determined authoritatively, finally and definitively,
subject to such appeals or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.

xxxx

[i]t cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-
judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical
sense, these terms have well understood and quite distinct meanings.

"Investigate, "commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x x to subject to an official probe x x x: to conduct an official
inquiry;" The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in
the facts inquired into by application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry
or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make
an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of
which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; xx x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,

determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: xx to pass judgment on: settle
judicially: x x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or
quasi-judicial powers: xx to award or grant judicially in a case of controversy x x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine
1âwphi1

finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. xx Implies a judicial determination of a fact, and
the entry of a judgment. "226

All told, petitioners are not entitled to moral and exemplary damages in accordance with Articles 19, 2217, 2219 and
2229 of the Civil Code. The dismissal of Cadet 1 CL Cudia from the PMA did not effectively deprive him of a future.
Cliche though it may sound, being a PMA graduate is not the "be-all and end-all" of his existence. A cadet separated
from the PMA may still continue to pursue military or civilian career elsewhere without suffering the stigma attached
to his or her dismissal. For one, as suggested by respondents, DND-AFP Circular No. 13, dated July 15, 1991, on
the enlistment and reenlistment in the APP Regular Force, provides under Section 14 (b) thereof that priority shall
be given to, among others, the ex-PMA or PAFFFS cadets.227 If the positions open does not appeal to his interest for
being way below the rank he could have achieved as a PMA graduate, Cadet 1 CL Cudia could still practice other
equally noble profession or calling that is best suited to his credentials, competence, and potential. Definitely,
nobody can deprive him of that choice.

WHEREFORE, the Petition is DENIED. The dismissal of Cadet First Class Aldrin Jeff P. Cudia from the Philippine
Military Academy is hereby AFFIRMED. No costs.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

MARIA LOURDES P.A. SERENO ANTONIO T. CARPIO

Chief Justice Associate Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

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Today is Thursday, February 01, 2024

On May 28, 2002, respondents filed with the Civil Service Commission (CSC) an Urgent Petition to Lift Preventive
Suspension Order.10 They contended that the acts they allegedly committed were arbitrarily characterized as grave
misconduct. Consistent with their stand that petitioner could not act as the complainant, prosecutor and judge at the
same time, respondents filed with the CSC a Petition to Transfer Investigation to This Commission.11

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive Meanwhile, the GSIS hearing officer directed petitioners to submit to the jurisdiction of the investigating committee
and required them to appear at the scheduled hearing.12

Despite their urgent motions, the CSC failed to resolve respondents’ motions to lift preventive suspension order and
Republic of the Philippines to transfer the case from the GSIS to the CSC.
SUPREME COURT
Manila On October 10, 2002, respondents filed with the CA a special civil action for certiotari and prohibition with prayer for
Temporary Restraining Order (TRO).13 The case was docketed as CA-G.R. SP No. 73170. Respondents sought the
EN BANC annulment and setting aside of petitioner’s order directing the former to submit to the jurisdiction of the committee
created to hear and investigate the administrative case filed against them. They likewise prayed that petitioner (and
G.R. No. 157383 August 10, 2010
the committee) be prohibited from conducting the scheduled hearing and from taking any action on the aforesaid
WINSTON F. GARCIA, in his capacity as President and General Manager of GSIS, Petitioner, administrative case against respondents.
vs.
MARIO I. MOLINA and ALBERT M. VELASCO, Respondents. On January 2, 2003, the CA rendered a decision14 in favor of respondents, the dispositive portion of which reads:

x - - - - - - - - - - - - - - - - - - - - - - -x ACCORDINGLY, the petition is hereby GRANTED. Public respondents are hereby PERPETUALLY RESTRAINED
from hearing and investigating the administrative case against petitioners, without prejudice to pursuing the same
G.R. No. 174137 with the Civil Service Commission or any other agency of government as may be allowed for (sic) by law.

WINSTON F. GARCIA, in his capacity as President and General Manager of the Government Service SO ORDERED.15
Insurance System, Petitioner,
vs. The CA treated the petition as one raising an issue of gnawing fear, and thus agreed with respondents that the
MARIO I. MOLINA and ALBERT M. VELASCO, Respondents. investigation be made not by the GSIS but by the CSC to ensure that the hearing is conducted before an impartial
and disinterested tribunal.
DECISION
Aggrieved, petitioner comes before the Court in this petition for review on certiorari under Rule 45 of the Rules of
NACHURA, J.: Court, raising the following issues:

Before the Court are two consolidated petitions filed by Winston F. Garcia (petitioner) in his capacity as President I.
and General Manager of the Government Service Insurance System, or GSIS, against respondents Mario I. Molina
(Molina) and Albert M. Velasco (Velasco). In G.R. No. 157383, petitioner assails the Court of Appeals (CA) WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING
Decision1 dated January 2, 2003 and Resolution2 dated March 5, 2003 in CA-G.R. SP No. 73170. In G.R. No. THAT THE PETITIONERS ABUSED THEIR AUTHORITY AND HAVE BEEN PARTIAL IN REGARD TO
THE ADMINISTRATIVE CASES AGAINST THE RESPONDENTS; AND IN PERPETUALLY
174137, petitioner assails the CA Decision3 dated December 7, 2005 and Resolution4 dated August 10, 2006 in CA-
RESTRAINING THE PETITIONERS FROM HEARING AND INVESTIGATING THE ADMINISTRATIVE
G.R. SP No. 75973.
CASES FILED AGAINST THE RESPONDENTS – SOLELY ON THE BASIS OF THE TOTALLY
The factual and procedural antecedents of the case are as follows: UNFOUNDED ALLEGATIONS OF THE RESPONDENTS THAT THE PETITIONERS ARE PARTIAL
AGAINST THEM.
Respondents Molina and Velasco, both Attorney V of the GSIS, received two separate Memoranda5 dated May 23, II.
2002 from petitioner charging them with grave misconduct. Specifically, Molina was charged for allegedly committing
the following acts: 1) directly and continuously helping some alleged disgruntled employees to conduct concerted WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FAILING TO
protest actions and/or illegal assemblies against the management and the GSIS President and General Manager; 2) APPRECIATE AND APPLY THE PRINCIPLE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES
leading the concerted protest activities held in the morning of May 22, 2002 during office hours within the GSIS AND THE RULE ON NON FORUM SHOPPING IN PERPETUALLY RESTRAINING THE
compound; and 3) continuously performing said activities despite warning from his immediate superiors. 6 In PETITIONERS FROM HEARING AND INVESTIGATING THE ADMINISTRATIVE CASES AGAINST
addition to the charge for grave misconduct for performing the same acts as Molina, Velasco was accused of THE RESPONDENTS.
performing acts in violation of the Rules on Office Decorum for leaving his office without informing his supervisor of
his whereabouts; and gross insubordination for persistently disregarding petitioner’s instructions that Velasco should III.
report to the petitioner’s office.7 These acts, according to petitioner, were committed in open betrayal of the
confidential nature of their positions and in outright defiance of the Rules and Regulations on Public Sector WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RENDERING
Unionism. In the same Memoranda, petitioner required respondents to submit their verified answer within seventy A DECISION WHICH IS CONTRARY TO AND COMPLETELY DISREGARDS APPLICABLE
two (72) hours. Considering the gravity of the charges against them, petitioner ordered the preventive suspension of JURISPRUDENCE AND WHICH, IN VIOLATION OF THE RULES OF COURT, DOES NOT CLEARLY
respondents for ninety (90) days without pay, effective immediately.8 The following day, a committee was constituted STATE THE FACTS AND THE LAW ON WHICH IT IS BASED.16
to investigate the charges against respondents.
In the meantime, on February 27, 2003, the CSC resolved respondents’ Petition to Lift Order of Preventive
In their Answer9 dated May 27, 2002, respondents denied the charges against them. Instead, they averred that Suspension and Petition to Transfer Investigation to the Commission through Resolution No. 03-0278,17 the
dispositive portion of which reads:
petitioner was motivated by vindictiveness and bad faith in charging them falsely. They likewise opposed their
preventive suspension for lack of factual and legal basis. They strongly expressed their opposition to petitioner WHEREFORE, the Commission hereby rules that:
acting as complainant, prosecutor and judge.
1. The Urgent Petition to Lift the Order of Preventive Suspension is hereby DENIED for having become moot
and academic.

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2. The Petition to Transfer Investigation to the Commission is likewise DENIED for lack of merit. Accordingly,
GSIS President and General Manager Winston F. Garcia is directed to continue the conduct of the formal
investigation of the charges against respondents-petitioners Albert Velasco and Mario I. Molina.18
As to the lifting of the order of preventive suspension, the CSC considered the issue moot and academic
considering that the period had lapsed and respondents had been allowed to resume their specific functions. This
notwithstanding, the CSC opted to discuss the matter by way of obiter dictum. Without making a definitive
conclusion as to the effect thereof in the case against respondents, the CSC declared that a preliminary
investigation is a pre-requisite condition to the issuance of a formal charge.19
On the requested transfer of the investigation from the GSIS to the CSC, the latter denied the same for lack of merit.
The Commission concluded that the fact that the GSIS acted as the complainant and prosecutor and eventually the
judge does not mean that impartiality in the resolution of the case will no longer be served.20
Aggrieved, respondents appealed to the CA through a Petition for Review under Rule 43 of the Rules of Court.21
The case was docketed as CA-G.R. SP NO. 75973.
On December 7, 2005, the CA rendered a Decision22 in favor of respondents, the dispositive portion of which reads:
PREMISES CONSIDERED, the petition is hereby GRANTED. The formal charges filed by the President and
General Manager of the GSIS against petitioners, and necessarily, the order of preventive suspension emanating
therefrom, are declared NULL AND VOID. The GSIS is hereby directed to pay petitioners’ back salaries pertaining to
the period during which they were unlawfully suspended. No pronouncement as to costs.
SO ORDERED.23
The CA declared null and void respondents’ formal charges for lack of the requisite preliminary investigation. In view
thereof, the CA disagreed with the CSC that the question on the propriety of the preventive suspension order had
become moot and academic. Rather, it concluded that the same is likewise void having emanated from the void
formal charges. Consequently, the CA found that respondents were entitled to back salaries during the time of their
illegal preventive suspension.
Hence, the present petition raising the following issues:
I.
WHETHER THE RESPONDENTS WERE FULLY ACCORDED THE REQUISITE OPPORTUNITY TO
BE HEARD, WERE IN FACT HEARD AND BEING HEARD, AND WHETHER THE CONDUCT OF
PRELIMINARY INVESTIGATION IN ADMINISTRATIVE PROCEEDINGS IS AN ESSENTIAL
REQUISITE TO THE CONDUCT OF ADJUDICATION.
II.
WHETHER THE RESPONDENTS WAIVED THEIR RIGHT TO PRELIMINARY INVESTIGATION.
III.
WHETHER PRELIMINARY INVESTIGATION IS REQUIRED IN INDICTMENTS IN FLAGRANTI, AS
HERE.
IV.
WHETHER THE HONORABLE COURT OF APPEALS LACKED JURISDICTION, AS THE ALLEGED
LACK OF PRELIMNARY INVESTIGATION SHOULD HAVE BEEN RAISED BEFORE THE GSIS AND,
THEREAFTER, BEFORE THE CIVIL SERVICE COMMISSION, UNDER THE PRINCIPLE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES; THE GSIS HAVING ACQUIRED JURISDICTION
OVER THE PERSONS OF THE RESPONDENTS, TO THE EXCLUSION OF ALL OTHERS.
V.
WHETHER THE ALLEGED LACK OF PRELIMINARY INVESTIGATION IS A NON-ISSUE.
VI.
WHETHER THE PREVENTIVE SUSPENSION ORDERS ISSUED AGAINST RESPONDENTS
MOLINA AND VELASCO ARE VALID, WELL-FOUNDED AND DULY RECOGNIZED BY LAW.
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VII.
WHETHER PREVENTIVE SUSPENSION IS A PENALTY AND, THUS, MAY NOT BE IMPOSED
WITHOUT BEING PRECEDED BY A HEARING.
VIII.
WHETHER THE RESPONDENTS ARE ENTITLED TO PAYMENT OF BACK SALARIES PERTAINING
TO THE PERIOD OF THEIR PREVENTIVE SUSPENSION.
IX.
WHETHER THE INSTITUTION OF THE RESPONDENTS’ PETITION BEFORE THE CIVIL SERVICE
COMMISSION WAS ENTIRELY PREMATURE.
X.
WHETHER THE MISAPPREHENSIONS OF THE RESPONDENTS AS REGARDS THE PARTIALITY
OF THE GSIS COMMITTEE INVESTIGATING THE CHARGES AGAINST THEM IS BLATANTLY
WITHOUT FACTUAL BASIS.
XI.
WHETHER RESPONDENTS’ OBVIOUS ACT OF FORUM SHOPPING SHOULD BE
COUNTENANCED BY THIS HONORABLE COURT.24
The petitions are without merit.
The civil service encompasses all branches and agencies of the Government, including government-owned or
controlled corporations (GOCCs) with original charters, like the GSIS, or those created by special law. As such, the
employees are part of the civil service system and are subject to the law and to the circulars, rules and regulations
issued by the CSC on discipline, attendance and general terms and conditions of employment.25 The CSC has
jurisdiction to hear and decide disciplinary cases against erring employees. In addition, Section 37 (b) of Presidential
Decree No. 807 or the Civil Service Decree of the Philippines also gives the heads of departments, agencies and
instrumentalities, provinces, cities and municipalities the authority to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. As for the GSIS, Section 45, Republic Act
(R.A.) 8291 otherwise known as the GSIS Act of 1997, specifies its disciplining authority, viz:
SECTION 45. Powers and Duties of the President and General Manager. The President and General Manager of
the GSIS shall among others, execute and administer the policies and resolutions approved by the Board and direct
and supervise the administration and operations of the GSIS. The President and General Manager, subject to the
approval of the Board, shall appoint the personnel of the GSIS, remove, suspend or otherwise discipline them for
cause, in accordance with existing Civil Service rules and regulations, and prescribe their duties and qualifications to
the end that only competent persons may be employed.
By this legal provision, petitioner, as President and General Manager of GSIS, is vested the authority and
responsibility to remove, suspend or otherwise discipline GSIS personnel for cause.26
However, despite the authority conferred on him by law, such power is not without limitations for it must be exercised
in accordance with Civil Service rules. The Uniform Rules on Administrative Cases in the Civil Service lays down the
procedure to be observed in issuing a formal charge against an erring employee, to wit:
First, the complaint. A complaint against a civil service official or employee shall not be given due course unless it is
in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining
authority, the complaint need not be under oath.27 Except when otherwise provided for by law, an administrative
complaint may be filed at anytime with the Commission, proper heads of departments, agencies, provinces, cities,
municipalities and other instrumentalities.28
Second, the Counter-Affidavit/Comment. Upon receipt of a complaint which is sufficient in form and substance, the
disciplining authority shall require the person complained of to submit Counter-Affidavit/Comment under oath within
three days from receipt.29
Third, Preliminary Investigation. A Preliminary investigation involves the ex parte examination of records and
documents submitted by the complainant and the person complained of, as well as documents readily available
from other government offices. During said investigation, the parties are given the opportunity to submit affidavits
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and counter-affidavits. Failure of the person complained of to submit his counter-affidavit shall be considered as a and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as
waiver thereof.30 impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration
during the hearing or contained in the records or made known to the parties affected.38
Fourth, Investigation Report. Within five (5) days from the termination of the preliminary investigation, the
investigating officer shall submit the investigation report and the complete records of the case to the disciplining Petitioner contends that respondents waived their right to preliminary investigation as they failed to raise it before
authority.31 the GSIS.

Fifth, Formal Charge. If a prima facie case is established during the investigation, a formal charge shall be issued by
the disciplining authority. A formal investigation shall follow. In the absence of a prima facie case, the complaint shall
be dismissed.32
It is undisputed that the Memoranda separately issued to respondents were the formal charges against them. These
formal charges contained brief statements of material or relevant facts, a directive to answer the charges within
seventy two (72) hours from receipt thereof, an advice that they had the right to a formal investigation and a notice
that they are entitled to be assisted by a counsel of their choice.33
Again, we do not agree.
It is well-settled that a decision rendered without due process is void ab initio and may be attacked at anytime
directly or collaterally by means of a separate action, or by resisting such decision in any action or proceeding where
it is invoked.39 Moreover, while respondents failed to raise before the GSIS the lack of preliminary investigation,
records show that in their Urgent Motion to Resolve (their Motion to Lift Preventive Suspension Order) filed with the
CSC, respondents questioned the validity of their preventive suspension and the formal charges against them for
lack of preliminary investigation.40 There is, thus, no waiver to speak of.

It is likewise undisputed that the formal charges were issued without preliminary or fact-finding investigation.
Petitioner explained that no such investigation was conducted because the CSC rules did not specifically provide
that it is a pre-requisite to the issuance of a formal charge. He likewise claimed that preliminary investigation was
not required in indictments in flagranti as in this case.
In the procedure adopted by petitioner, respondents were preventively suspended in the same formal charges
issued by the former without the latter knowing that there were pending administrative cases against them. It is true
that prior notice and hearing are not required in the issuance of a preventive suspension order.41 However,
considering that respondents were preventively suspended in the same formal charges that we now declare null and
void, then their preventive suspension is likewise null and void. 1avvphi1

We disagree.
Lastly, the CA committed no reversible error in ordering the payment of back salaries during the period of
Indeed, the CSC Rules does not specifically provide that a formal charge without the requisite preliminary respondents’ preventive suspension. As the administrative proceedings involved in this case are void, no
investigation is null and void. However, as clearly outlined above, upon receipt of a complaint which is sufficient in delinquency or misconduct may be imputed to respondents and the preventive suspension meted them is baseless.
form and substance, the disciplining authority shall require the person complained of to submit a Counter- Consequently, respondents should be awarded their salaries during the period of their unjustified suspension.42 In
Affidavit/Comment under oath within three days from receipt. The use of the word "shall" quite obviously indicates granting their back salaries, we are simply repairing the damage that was unduly caused respondents, and unless
that it is mandatory for the disciplining authority to conduct a preliminary investigation or at least respondent should we can turn back the hands of time, we can do so only by restoring to them that which is physically feasible to do
be given the opportunity to comment and explain his side. As can be gleaned from the procedure set forth above,
under the circumstances.43 The principle of "no work, no pay" does not apply where the employee himself was
this is done prior to the issuance of the formal charge and the comment required therein is different from the answer
that may later be filed by respondents. Contrary to petitioner’s claim, no exception is provided for in the CSC Rules. unlawfully forced out of job.44
Not even an indictment in flagranti as claimed by petitioner.
In view of the foregoing disquisition, we find no necessity to discuss the other issues raised by petitioner.
This is true even if the complainant is the disciplining authority himself, as in the present case. To comply with such
requirement, he could have issued a memorandum requiring respondents to explain why no disciplinary action WHEREFORE, premises considered, the petition in G.R. No. 157383 is DENIED while the petition in G.R. No.
should be taken against them instead of immediately issuing formal charges. With respondents’ comments, 174137 is DISMISSED, for lack of merit.
petitioner would have properly evaluated both sides of the controversy before making a conclusion that there was a
prima facie case against respondents, leading to the issuance of the questioned formal charges. It is noteworthy that SO ORDERED.
the very acts subject of the administrative cases stemmed from an event that took place the day before the formal
ANTONIO EDUARDO B. NACHURA
charges were issued. It appears, therefore, that the formal charges were issued after the sole determination by the
Associate Justice
petitioner as the disciplining authority that there was a prima facie case against respondents.
WE CONCUR:
To condone this would give the disciplining authority an unrestricted power to judge by himself the nature of the act
complained of as well as the gravity of the charges. We, therefore, conclude that respondents were denied due RENATO C. CORONA
process of law. Not even the fact that the charges against them are serious and evidence of their guilt is – in the Chief Justice
opinion of their superior – strong can compensate for the procedural shortcut undertaken by petitioner which is
evident in the record of this case.34 The filing by petitioner of formal charges against the respondents without
complying with the mandated preliminary investigation or at least give the respondents the opportunity to comment ANTONIO T. CARPIO CONCHITA CARPIO MORALES
violated the latter's right to due process. Hence, the formal charges are void ab initio and may be assailed directly or Associate Justice Associate Justice
indirectly at anytime.35
(On Official Leave)
TERESITA J. LEONARDO-DE CASTRO
The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their PRESBITERO J. VELASCO, JR.*
Associate Justice
jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which cannot be Associate Justice
glossed over or disregarded at will. Where the denial of the fundamental right to due process is apparent, a decision
rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and ARTURO D. BRION DIOSDADO M. PERALTA
administrative proceedings, for the constitutional guarantee that no man shall be deprived of life, liberty, or property Associate Justice Associate Justice
without due process is unqualified by the type of proceedings (whether judicial or administrative) where he stands to
lose the same.36
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
Although administrative procedural rules are less stringent and often applied more liberally, administrative Associate Justice Associate Justice
proceedings are not exempt from basic and fundamental procedural principles, such as the right to due process in
investigations and hearings.37 In particular, due process in administrative proceedings has been recognized to ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
include the following: (1) the right to actual or constructive notice to the institution of proceedings which may affect a Associate Justice Associate Justice
respondent's legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction

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2/1/24, 7:53 PM G.R. No. L-31195
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31195 June 5, 1973
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO, FLORENCIO,
PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA,
BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL RELATIONS, respondents.
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO) is a legitimate
labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and petitioners
Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang on March 4,
1969, in protest against alleged abuses of the Pasig police, to be participated in by the workers in the first shift (from
6 A.M. to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5
P.M., respectively); and that they informed the respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the respondent Court
reproduced the following stipulation of facts of the parties — parties —
3. That on March 2, 1969 complainant company learned of the projected mass demonstration at
Malacañang in protest against alleged abuses of the Pasig Police Department to be participated by the
first shift (6:00 AM-2:00 PM) workers as well as those working in the regular shifts (7:00 A.M. to 4:00
PM and 8:00 AM to 5:00 PM) in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the Company's
canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr., (3)
and all department and section heads. For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3)
Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said projected mass demonstration at
Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as spokesman of the union
panel, confirmed the planned demonstration and stated that the demonstration or rally cannot be
cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the
demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly prejudice the normal operation of the
Company. For which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO representatives
that workers who belong to the first and regular shifts, who without previous leave of absence approved
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by the Company, particularly , the officers present who are the organizers of the demonstration, who
shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such
failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked Company represented by
Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodolfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company
reiterated and appealed to the PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be excused from
joining the demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly Article XXIV: NO LOCKOUT — NO
STRIKE'. All those who will not follow this warning of the Company shall be dismiss; De Leon reiterated
the Company's warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their plans inasmuch as
the Malacañang demonstration will be held the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which was
received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex
"F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the
pleas of the respondent Company that the first shift workers should not be required to participate in the
demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6
A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass demonstration on March 4, 1969,
with the respondent Court, a charge against petitioners and other employees who composed the first shift, charging
them with a "violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of Republic Act
No. 875, and of the CBA providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter,
a corresponding complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting
Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA because they
gave the respondent Company prior notice of the mass demonstration on March 4, 1969; that the said mass
demonstration was a valid exercise of their constitutional freedom of speech against the alleged abuses of some
Pasig policemen; and that their mass demonstration was not a declaration of strike because it was not directed
against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M. Salvador, in an
order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining in bad faith and herein
petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin
Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for perpetrating the said unfair labor practice
and were, as a consequence, considered to have lost their status as employees of the respondent Company (Annex
"F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.); and that they
filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration
of said order dated September 15, 1969, on the ground that it is contrary to law and the evidence, as well as asked
for ten (10) days within which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as
amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company averred that
herein petitioners received on September 22, 1969, the order dated September 17 (should be September 15), 1969;
that under Section 15 of the amended Rules of the Court of Industrial Relations, herein petitioners had five (5) days
from September 22, 1969 or until September 27, 1969, within which to file their motion for reconsideration; and that
because their motion for reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo,1 which held among others, that a motion for extension of the five-day period for the filing of a motion for
reconsideration should be filed before the said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11, 1969, in
support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for reconsideration of herein
petitioners for being pro forma as it was filed beyond the reglementary period prescribed by its Rules (Annex "J", pp.
74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76, rec.).
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At the bottom of the notice of the order dated October 9, 1969, which was released on October 24, 1969 and
addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17, as
amended, of the Rules of the Court of Industrial Relations, that a motion for reconsideration shall be filed within five
(5) days from receipt of its decision or order and that an appeal from the decision, resolution or order of the C.I.R.,
sitting en banc, shall be perfected within ten (10) days from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the order dated
October 9, 1969, on the ground that their failure to file their motion for reconsideration on time was due to excusable
negligence and honest mistake committed by the president of the petitioner Union and of the office clerk of their
counsel, attaching thereto the affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order dated October 9, 1969, herein petitioners
filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I such conclusion cannot be sustained. The demonstration held petitioners on March 4, 1969 before Malacañang was
There is need of briefly restating basic concepts and principles which underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the
central core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual
must be "protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person."2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of
opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of
those who have no patience with general principles."3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects
from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to
establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech,
or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections."4 Laski proclaimed that "the happiness of the individual, not the well-being
of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to
the authority it was entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities
reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or
hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but
also to benefit the majority who refuse to listen.6 And as Justice Douglas cogently stresses it, the liberties of one are
the liberties of all; and the liberties of one are not safe unless the liberties of all are protected.7
(4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential
to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the
citizens can participate not merely in the periodic establishment of the government through their suffrage but also in
the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well
as for the imposition of the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is
recognized.8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in our society"
and the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions," they
"need breathing space to survive," permitting government regulation only "with narrow specificity."9
Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government
and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful,
and of oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they
are essential to the preservation and vitality of our civil and political institutions; 10 and such priority "gives these
liberties the sanctity and the sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational
relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor
discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. 12 On the
other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely
existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. So it has
been stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of
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the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like
Justices Douglas, Black and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech and of
the press as well as of peaceful assembly and of petition for redress of grievances are absolute when directed
against public officials or "when exercised in relation to our right to choose the men and women by whom we shall
be governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice Vinson is partial
to the improbable danger rule formulated by Chief Judge Learned Hand, viz. — whether the gravity of the evil,
discounted by its improbability, justifies such invasion of free expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass demonstration was not a declaration of
strike, concluded that by their "concerted act and the occurrence temporary stoppage of work," herein petitioners
are guilty bargaining in bad faith and hence violated the collective bargaining agreement with private respondent
Philippine Blooming Mills Co., inc.. Set against and tested by foregoing principles governing a democratic society,
against alleged abuses of some Pasig policemen, not against their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise of their freedom expression in general and of their right of
assembly and petition for redress of grievances in particular before appropriate governmental agency, the Chief
Executive, again the police officers of the municipality of Pasig. They exercise their civil and political rights for their
mutual aid protection from what they believe were police excesses. As matter of fact, it was the duty of herein
private respondent firm to protect herein petitioner Union and its members fro the harassment of local police officers.
It was to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment, vexation or peril and as consequence perform
more efficiently their respective tasks enhance its productivity as well as profits. Herein respondent employer did not
even offer to intercede for its employees with the local police. Was it securing peace for itself at the expenses of its
workers? Was it also intimidated by the local police or did it encourage the local police to terrorize or vex its
workers? Its failure to defend its own employees all the more weakened the position of its laborers the alleged
oppressive police who might have been all the more emboldened thereby subject its lowly employees to further
indignities.
In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against
alleged persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting
for their very survival, utilizing only the weapons afforded them by the Constitution — the untrammelled enjoyment
of their basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the
absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation
merely of their property rights. Such apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees' pathetic situation was a stark reality —
abused, harassment and persecuted as they believed they were by the peace officers of the municipality. As above
intimated, the condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter
that vitally affected their right to individual existence as well as that of their families. Material loss can be repaired or
adequately compensated. The debasement of the human being broken in morale and brutalized in spirit-can never
be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying day,
even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for
redress of grievances — over property rights has been sustained. 18 Emphatic reiteration of this basic tenet as a
coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming
ideal of our enlightened civilization — becomes Our duty, if freedom and social justice have any meaning at all for
him who toils so that capital can produce economic goods that can generate happiness for all. To regard the
demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and
hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the
demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means
of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the employees, according to the respondent
Court Industrial Relations, in effect imposes on the workers the "duty ... to observe regular working hours." The
strain construction of the Court of Industrial Relations that a stipulated working shifts deny the workers the right to
stage mass demonstration against police abuses during working hours, constitutes a virtual tyranny over the mind
and life the workers and deserves severe condemnation. Renunciation of the freedom should not be predicated on
such a slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have been legally enjoined by any
court, such an injunction would be trenching upon the freedom expression of the workers, even if it legally appears
to be illegal picketing or strike. 20 The respondent Court of Industrial Relations in the case at bar concedes that the
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mass demonstration was not a declaration of a strike "as the same not rooted in any industrial dispute although
there is concerted act and the occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to participate in the demonstration and that
they suggested to the Union that only the first and regular shift from 6 A.M. to 2 P.M. should report for work in order
that loss or damage to the firm will be averted. This stand failed appreciate the sine qua non of an effective
demonstration especially by a labor union, namely the complete unity of the Union members as well as their total
presence at the demonstration site in order to generate the maximum sympathy for the validity of their cause but
also immediately action on the part of the corresponding government agencies with jurisdiction over the issues they
raised against the local police. Circulation is one of the aspects of freedom of expression. 21 If demonstrators are
reduced by one-third, then by that much the circulation of the issues raised by the demonstration is diminished. The
more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-
third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their
position and abet continued alleged police persecution. At any rate, the Union notified the company two days in
advance of their projected demonstration and the company could have made arrangements to counteract or prevent
whatever losses it might sustain by reason of the absence of its workers for one day, especially in this case when
the Union requested it to excuse only the day-shift employees who will join the demonstration on March 4, 1969
which request the Union reiterated in their telegram received by the company at 9:50 in the morning of March 4,
1969, the day of the mass demonstration (pp. 42-43, rec.). There was a lack of human understanding or
compassion on the part of the firm in rejecting the request of the Union for excuse from work for the day shifts in
order to carry out its mass demonstration. And to regard as a ground for dismissal the mass demonstration held
against the Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is as
unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the respondent
firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the
subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the
freedom of expression, freedom of assembly and freedom petition for redress of grievances, the respondent firm
committed an unfair labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875,
otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right
"to engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair labor
practice for an employer interfere with, restrain or coerce employees in the exercise their rights guaranteed in
Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent firm on
March 4, 1969, was for their mutual aid and protection against alleged police abuses, denial of which was
interference with or restraint on the right of the employees to engage in such common action to better shield
themselves against such alleged police indignities. The insistence on the part of the respondent firm that the
workers for the morning and regular shift should not participate in the mass demonstration, under pain of dismissal,
was as heretofore stated, "a potent means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at least equal protection as the concerted
action of employees in giving publicity to a letter complaint charging bank president with immorality, nepotism,
favoritism an discrimination in the appointment and promotion of ban employees. 23 We further ruled in the Republic
Savings Bank case, supra, that for the employees to come within the protective mantle of Section 3 in relation to
Section 4(a-1) on Republic Act No. 875, "it is not necessary that union activity be involved or that collective
bargaining be contemplated," as long as the concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court dated September
15, 1969, the company, "while expressly acknowledging, that the demonstration is an inalienable right of the Union
guaranteed by the Constitution," nonetheless emphasized that "any demonstration for that matter should not unduly
prejudice the normal operation of the company" and "warned the PBMEO representatives that workers who belong
to the first and regular shifts, who without previous leave of absence approved by the Company, particularly the
officers present who are the organizers of the demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the employees
from joining the mass demonstration. However, the issues that the employees raised against the local police, were
more important to them because they had the courage to proceed with the demonstration, despite such threat of
dismissal. The most that could happen to them was to lose a day's wage by reason of their absence from work on
the day of the demonstration. One day's pay means much to a laborer, more especially if he has a family to support.
Yet, they were willing to forego their one-day salary hoping that their demonstration would bring about the desired
relief from police abuses. But management was adamant in refusing to recognize the superior legitimacy of their
right of free speech, free assembly and the right to petition for redress.
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Because the respondent company ostensibly did not find it necessary to demand from the workers proof of the truth
of the alleged abuses inflicted on them by the local police, it thereby concedes that the evidence of such abuses
should properly be submitted to the corresponding authorities having jurisdiction over their complaint and to whom
such complaint may be referred by the President of the Philippines for proper investigation and action with a view to
disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that the demonstration "paralyzed to a
large extent the operations of the complainant company," the respondent Court of Industrial Relations did not make
any finding as to the fact of loss actually sustained by the firm. This significant circumstance can only mean that the
firm did not sustain any loss or damage. It did not present evidence as to whether it lost expected profits for failure
to comply with purchase orders on that day; or that penalties were exacted from it by customers whose orders could
not be filled that day of the demonstration; or that purchase orders were cancelled by the customers by reason of its
failure to deliver the materials ordered; or that its own equipment or materials or products were damaged due to
absence of its workers on March 4, 1969. On the contrary, the company saved a sizable amount in the form of
wages for its hundreds of workers, cost of fuel, water and electric consumption that day. Such savings could have
amply compensated for unrealized profits or damages it might have sustained by reason of the absence of its
workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and assembly as well as the right to petition for
redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers for proceeding with the
demonstration and consequently being absent from work, constitutes a denial of social justice likewise assured by
the fundamental law to these lowly employees. Section 5 of Article II of the Constitution imposes upon the State "the
promotion of social justice to insure the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall afford protection
to labor ...". Respondent Court of Industrial Relations as an agency of the State is under obligation at all times to
give meaning and substance to these constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under the Industrial Peace
Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate the causes of industrial
unrest by encouraging and protecting the exercise by employees of their right to self-organization for the purpose of
collective bargaining and for the promotion of their moral, social and economic well-being." It is most unfortunate in
the case at bar that respondent Court of Industrial Relations, the very governmental agency designed therefor, failed
to implement this policy and failed to keep faith with its avowed mission — its raison d'etre — as ordained and
directed by the Constitution.
V
It has been likewise established that a violation of a constitutional right divests the court of jurisdiction; and as a
consequence its judgment is null and void and confers no rights. Relief from a criminal conviction secured at the
sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even long after the finality
of the judgment. Thus, habeas corpus is the remedy to obtain the release of an individual, who is convicted by final
judgment through a forced confession, which violated his constitutional right against self-incrimination; 25 or who is
denied the right to present evidence in his defense as a deprivation of his liberty without due process of law, 26 even
after the accused has already served sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched upon these constitutional immunities of
petitioners. Both failed to accord preference to such rights and aggravated the inhumanity to which the aggrieved
workers claimed they had been subjected by the municipal police. Having violated these basic human rights of the
laborers, the Court of Industrial Relations ousted itself of jurisdiction and the questioned orders it issued in the
instant case are a nullity. Recognition and protection of such freedoms are imperative on all public offices including
the courts 28 as well as private citizens and corporations, the exercise and enjoyment of which must not be nullified
by mere procedural rule promulgated by the Court Industrial Relations exercising a purely delegate legislative
power, when even a law enacted by Congress must yield to the untrammelled enjoyment of these human rights.
There is no time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery of one
speech, the printing of one article or the staging of one demonstration. It is a continuing immunity to be invoked and
exercised when exigent and expedient whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by rule on
procedure prescribing the period for appeal. The battle then would be reduced to a race for time. And in such a
contest between an employer and its laborer, the latter eventually loses because he cannot employ the best an
dedicated counsel who can defend his interest with the required diligence and zeal, bereft as he is of the financial
resources with which to pay for competent legal services. 28-a
VI
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The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ should filed within
five (5) days from notice thereof and that the arguments in support of said motion shall be filed within ten (10) days
from the date of filing of such motion for reconsideration (Sec. 16). As above intimated, these rules of procedure
were promulgated by the Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on September 22,
1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim that they could have filed it on
September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of the petitioning
employees? Or more directly and concretely, does the inadvertent omission to comply with a mere Court of
Industrial Relations procedural rule governing the period for filing a motion for reconsideration or appeal in labor
cases, promulgated pursuant to a legislative delegation, prevail over constitutional rights? The answer should be
obvious in the light of the aforecited cases. To accord supremacy to the foregoing rules of the Court of Industrial
Relations over basic human rights sheltered by the Constitution, is not only incompatible with the basic tenet of
constitutional government that the Constitution is superior to any statute or subordinate rules and regulations, but
also does violence to natural reason and logic. The dominance and superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial
Relations rule as applied in this case does not implement or reinforce or strengthen the constitutional rights
affected,' but instead constrict the same to the point of nullifying the enjoyment thereof by the petitioning employees.
Said Court of Industrial Relations rule, promulgated as it was pursuant to a mere legislative delegation, is
unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days
within which to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do not
have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals and the Supreme
Court, a period of fifteen (15) days has been fixed for the filing of the motion for re hearing or reconsideration (See.
10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for
reconsideration could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated September 27, 1969, is based on the ground
that the order sought to be reconsidered "is not in accordance with law, evidence and facts adduced during the
hearing," and likewise prays for an extension of ten (10) days within which to file arguments pursuant to Sections
15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the arguments
were actually filed by the herein petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day
period required for the filing of such supporting arguments counted from the filing of the motion for reconsideration.
Herein petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the motion for
reconsideration for being pro forma since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or where the
arguments in suppf such motion are filed beyond the 10 day reglementary period provided for by the Court of
Industrial Relations rules, the order or decision subject of29-a reconsideration becomes final and unappealable. But
in all these cases, the constitutional rights of free expression, free assembly and petition were not involved.
It is a procedural rule that generally all causes of action and defenses presently available must be specifically raised
in the complaint or answer; so that any cause of action or defense not raised in such pleadings, is deemed waived.
However, a constitutional issue can be raised any time, even for the first time on appeal, if it appears that the
determination of the constitutional issue is necessary to a decision of the case, the very lis mota of the case without
the resolution of which no final and complete determination of the dispute can be made. 30 It is thus seen that a
procedural rule of Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the
procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the constitutional
rights invoked by herein petitioners even before the institution of the unfair labor practice charged against them and
in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is a most
compelling reason to deny application of a Court of Industrial Relations rule which impinges on such human rights.
30
-a
It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or to except a
particular case from its operation, whenever the purposes of justice require." 30-b Mr. Justice Barredo in his
concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all situations without concerning itself about
procedural niceties that do not square with the need to do justice, in any case, without further loss of
time, provided that the right of the parties to a full day in court is not substantially impaired. Thus, this
Court may treat an appeal as a certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly heard, it matters little that the error
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of the court a quo is of judgment or of jurisdiction. We can then and there render the appropriate
judgment. Is within the contemplation of this doctrine that as it is perfectly legal and within the power of
this Court to strike down in an appeal acts without or in excess of jurisdiction or committed with grave
abuse of discretion, it cannot be beyond the admit of its authority, in appropriate cases, to reverse in a
certain proceed in any error of judgment of a court a quo which cannot be exactly categorized as a flaw
of jurisdiction. If there can be any doubt, which I do not entertain, on whether or not the errors this
Court has found in the decision of the Court of Appeals are short of being jurisdiction nullities or
excesses, this Court would still be on firm legal grounds should it choose to reverse said decision here
and now even if such errors can be considered as mere mistakes of judgment or only as faults in the
exercise of jurisdiction, so as to avoid the unnecessary return of this case to the lower court for the sole
purpose of pursuing the ordinary course of an appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule in this particular case at bar would an
unreasoning adherence to "Procedural niceties" which denies justice to the herein laborers, whose basic human
freedoms, including the right to survive, must be according supremacy over the property rights of their employer firm
which has been given a full hearing on this case, especially when, as in the case at bar, no actual material damage
has be demonstrated as having been inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience to the Constitution renders more imperative
the suspension of a Court of Industrial Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It should be stressed that the application in
the instant case Section 15 of the Court of Industrial Relations rules relied upon by herein respondent firm is
unreasonable and therefore such application becomes unconstitutional as it subverts the human rights of petitioning
labor union and workers in the light of the peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations rules with reference to the case
at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of
Industrial Relations to "act according to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo, speaking for the
Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners in the motion for new trial is not "newly
discovered," as such term is understood in the rules of procedure for the ordinary courts, We hold that
such criterion is not binding upon the Court of Industrial Relations. Under Section 20 of Commonwealth
Act No. 103, 'The Court of Industrial Relations shall adopt its, rules or procedure and shall have such
other powers as generally pertain to a court of justice: Provided, however, That in the hearing,
investigation and determination of any question or controversy and in exercising any duties and power
under this Act, the Court shall act according to justice and equity and substantial merits of the case,
without regard to technicalities or legal forms and shall not be bound by any technical rules of legal
evidence but may inform its mind in such manner as it may deem just and equitable.' By this provision
the industrial court is disengaged from the rigidity of the technicalities applicable to ordinary courts.
Said court is not even restricted to the specific relief demanded by the parties but may issue such
orders as may be deemed necessary or expedient for the purpose of settling the dispute or dispelling
any doubts that may give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We believe that this
provision is ample enough to have enabled the respondent court to consider whether or not its previous
ruling that petitioners constitute a minority was founded on fact, without regard to the technical meaning
of newly discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil.
578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case is to rule in
effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer seek the sanctuary of
human freedoms secured to them by the fundamental law, simply because their counsel — erroneously believing
that he received a copy of the decision on September 23, 1969, instead of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which practically is only one day late considering that September 28, 1969
was a Sunday.
Many a time, this Court deviated from procedure technicalities when they ceased to be instruments of justice, for the
attainment of which such rules have been devised. Summarizing the jurisprudence on this score, Mr. Justice
Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910]. The Villamor
decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949];
Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June 30, 1961, 2 SCRA
675.), decided as far back as 1910, "technicality. when it deserts its proper-office as an aid to justice
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and becomes its great hindrance and chief enemy, deserves scant consideration from courts." (Ibid., p,
322.) To that norm, this Court has remained committed. The late Justice Recto in Blanco v. Bernabe,
(63 Phil. 124 [1936]) was of a similar mind. For him the interpretation of procedural rule should never
"sacrifice the ends justice." While "procedural laws are no other than technicalities" view them in their
entirety, 'they were adopted not as ends themselves for the compliance with which courts have
organized and function, but as means conducive to the realization the administration of the law and of
justice (Ibid., p.,128). We have remained steadfastly opposed, in the highly rhetorical language Justice
Felix, to "a sacrifice of substantial rights of a litigant in altar of sophisticated technicalities with
impairment of the sacred principles of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161
[1958]). As succinctly put by Justice Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest decision in point
promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v. Manotok, L-14968, Oct. 27,
1961, 3 SCRA 272.) Justice Zaldivar was partial to an earlier formulation of Justice Labrador that rules
of procedure "are not to be applied in a very rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the dismissal or
termination of the employment of the petitioning eight (8) leaders of the Union is harsh for a one-day absence from
work. The respondent Court itself recognized the severity of such a sanction when it did not include the dismissal of
the other 393 employees who are members of the same Union and who participated in the demonstration against
the Pasig police. As a matter of fact, upon the intercession of the Secretary of Labor, the Union members who are
not officers, were not dismissed and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20, respondent's Brief;
Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the 400 or so
employee participated in the demonstration, for which reason only the Union and its thirteen (13) officers were
specifically named in the unfair labor practice charge (p. 20, respondent's brief). If that were so, then many, if not all,
of the morning and regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued
in operation that day and did not sustain any damage.
The appropriate penalty — if it deserves any penalty at all — should have been simply to charge said one-day
absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a most
cruel penalty, since as aforestated the Union leaders depend on their wages for their daily sustenance as well as
that of their respective families aside from the fact that it is a lethal blow to unionism, while at the same time
strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those who consciously seek to destroy our
system of Government, but from men of goodwill — good men who allow their proper concerns to blind
them to the fact that what they propose to accomplish involves an impairment of liberty.
... The Motives of these men are often commendable. What we must remember, however, is that
preservation of liberties does not depend on motives. A suppression of liberty has the same effect
whether the suppress or be a reformer or an outlaw. The only protection against misguided zeal is a
constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each
surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle
over the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of all are protected.
... But even if we should sense no danger to our own liberties, even if we feel secure because we
belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of
fair play for the less fortunate that we in all honor and good conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic
understanding of the plight of its laborers who claim that they are being subjected to indignities by the local police, It
was more expedient for the firm to conserve its income or profits than to assist its employees in their fight for their
freedoms and security against alleged petty tyrannies of local police officers. This is sheer opportunism. Such
opportunism and expediency resorted to by the respondent company assaulted the immunities and welfare of its
employees. It was pure and implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner Bank dismissed
eight (8) employees for having written and published "a patently libelous letter ... to the Bank president demanding
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his resignation on the grounds of immorality, nepotism in the appointment and favoritism as well as discrimination in
the promotion of bank employees." Therein, thru Mr. Justice Castro, We ruled:
It will avail the Bank none to gloat over this admission of the respondents. Assuming that the latter
acted in their individual capacities when they wrote the letter-charge they were nonetheless protected
for they were engaged in concerted activity, in the exercise of their right of self organization that
includes concerted activity for mutual aid and protection, (Section 3 of the Industrial Peace Act ...) This
is the view of some members of this Court. For, as has been aptly stated, the joining in protests or
demands, even by a small group of employees, if in furtherance of their interests as such, is a
concerted activity protected by the Industrial Peace Act. It is not necessary that union activity be
involved or that collective bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for what it calls the respondents' libel in
giving undue publicity to their letter-charge. To be sure, the right of self-organization of employees is
not unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as the right of the employer to
discharge for cause (Philippine Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29,
1960) is undenied. The Industrial Peace Act does not touch the normal exercise of the right of the
employer to select his employees or to discharge them. It is directed solely against the abuse of that
right by interfering with the countervailing right of self organization (Phelps Dodge Corp. v. NLRB 313
U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this Court is in unanimity that the Bank's conduct, identified as an
interference with the employees' right of self-organization or as a retaliatory action, and/or as a refusal
to bargain collectively, constituted an unfair labor practice within the meaning and intendment of section
4(a) of the Industrial Peace Act. (Emphasis supplied.) 33
If free expression was accorded recognition and protection to fortify labor unionism in the Republic Savings case,
supra, where the complaint assailed the morality and integrity of the bank president no less, such recognition and
protection for free speech, free assembly and right to petition are rendered all the more justifiable and more
imperative in the case at bar, where the mass demonstration was not against the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated September 15 and
October 9, 1969; and
(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of their separation
from the service until re instated, minus one day's pay and whatever earnings they might have realized from other
sources during their separation from the service.
With costs against private respondent Philippine Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.
Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.
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Today is Thursday, February 01, 2024

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet
by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing
the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
allowed: Provided, That said streamers may not be displayed except one week before the date of the
meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may
authorize after due notice to all interested parties and hearing where all the interested parties were
Republic of the Philippines
given an equal opportunity to be heard: Provided, That the Commission's authorization shall be
SUPREME COURT
published in two newspapers of general circulation throughout the nation for at least twice within one
Manila
week after the authorization has been granted. (Section 37, 1978 EC)
EN BANC
and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited
G.R. No. 103956 March 31, 1992 under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write,
post, display or publicly exhibit any election propaganda in any place, whether private, or public, except
BLO UMPAR ADIONG, petitioner, in the common poster areas and/or billboards provided in the immediately preceding section, at the
vs. candidate's own residence, or at the campaign headquarters of the candidate or political party:
COMMISSION ON ELECTIONS, respondent. Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3)
feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally,
streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be
displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four
GUTIERREZ, JR., J.: (24) hours after said meeting or rally; . . . (Emphasis supplied)
The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's
posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving
authorized posting areas that it fixes. vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section
11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print
On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with
Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws. this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to
inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that
Section 15(a) of the resolution provides:
as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars
Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda: in the entire country as to the location of the supposed "Comelec Poster Areas."

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile"
materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. places whether public or private except in designated areas provided for by the COMELEC itself is null and void on
Provided, That decals and stickers may be posted only in any of the authorized posting areas provided constitutional grounds.
in paragraph (f) of Section 21 hereof.
First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the
Section 21 (f) of the same resolution provides: Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction
involved in this case.
Sec. 21(f). Prohibited forms of election propaganda. —
There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of
It is unlawful: our own Bill of Rights provision on this basic freedom.

xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place,
whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or
billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or
at the candidate's own residential house or one of his residential houses, if he has more than one:
Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in
size. (Emphasis supplied)
All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of
a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36
SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable
condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA
438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may
be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

xxx xxx xxx We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief
lawful election propaganda which provides: Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will
deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will
Lawful election propaganda. — Lawful election propaganda shall include: truly be free, clean and honest.

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what
than eight and one-half inches in width and fourteen inches in length; may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.
(Mutuc v. Commission on Elections, supra)

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The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms
in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-
called balancing of interests — individual freedom on one hand and substantial public interests on the other — is
made even more difficult in election campaign cases because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory
powers vis-a-vis the conduct and manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection with the object of holding
free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent case of National Press Club v.
Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is
to draw a dividing line between permissible regulation of election campaign activities and indefensible repression
committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns
through political advertisements. The gray area is rather wide and we have to go on a case to case basis.
There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in
the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected
parties and the electorate.
For persons who have to resort to judicial action to strike down requirements which they deem inequitable or
oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for
rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and
irredeemable opportunities may have been lost.
When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local
officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and
the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but
all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not
the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that
regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in
time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National
Press Club, we find the regulation in the present case of a different category. The promotion of a substantial
Government interest is not clearly shown.
A government regulation is sufficiently justified if it is within the constitutional power of the Government,
if it furthers an important or substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672,
88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118
[1984])
The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any
substantial government interest. There is no clear public interest threatened by such activity so as to justify the
curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule
not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:
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The case confronts us again with the duty our system places on the Court to say where the individual's
freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps
more so where the usual presumption supporting legislation is balanced by the preferred place given in
our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . .
That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what standard governs the choice . . .
For these reasons any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed, which in other context might support legislation
against attack on due process grounds, will not suffice. These rights rest on firmer foundation.
Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time
and place, must have clear support in public danger, actual or impending. Only the greatest abuses,
endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US
516 [1945]). (Emphasis supplied)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate
or the political party. The regulation strikes at the freedom of an individual to express his preference and, by
displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out
restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as
these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who
pastes a sticker or decal on his private property.
Second — the questioned prohibition premised on the statute and as couched in the resolution is void for
overbreadth.
A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose
to control or prevent activities constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d
444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be
viewed in the light of less drastic means for achieving the same basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance
prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing
out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In
Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four
different municipalities which either banned or imposed prior restraints upon the distribution of
handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect
of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions,"
308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the
Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out
that in each case "the power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]
The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width
and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so
broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1,
Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right to
acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden
v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free
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use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of
the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving
vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only
deprive the owner who consents to such posting of the decals and stickers the use of his property but more
important, in the process, it would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to
the preservation of a free society that, putting aside reasonable police and health regulations of time
and manner of distribution, it must be fully preserved. The danger of distribution can so easily be
controlled by traditional legal methods leaving to each householder the full right to decide whether he
will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by
the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio,
319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own crudely prepared personal poster on his own front door or on
a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the
privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his
concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is
unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."
Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to
Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public
service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common
good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this
kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and,
therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same
number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise
his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property.
To strike down this right and enjoin it is impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the
authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:
. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of
any public act whether proceeding from the highest official or the lowest functionary, is a postulate of
our system of government. That is to manifest fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must
ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain
inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the
validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this
basic principle that the Constitution is paramount. It overrides any governmental measure that fails to
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live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v.
Commission on Elections, supra)
The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the
freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms
and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to
bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds
of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.
There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation
includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the
Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero
and Nocon, J.J., concur.
Feliciano and Bellosillo, JJ., are on leave.
Separate Opinions
CRUZ, J.: concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on
Elections. The stand taken by the Court in the case at bar is a refreshing change from its usual deferential attitude
toward authoritarianism as a persistent vestige of the past regime. After the disappointing decision in the ad ban
case, I hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same,
and on the right track this time.
Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of
information so vital in an election campaign. The Commission on Elections seems to be bent on muzzling the
candidates and imposing all manner of silly restraints on their efforts to reach the electorate. Reaching the
electorate is precisely the purpose of an election campaign, but the Commission on Elections obviously believes
that the candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for
public office, what the Commission on Elections should concentrate on is the education of the voters on the proper
exercise of their suffrages. This function is part of its constitutional duty to supervise and regulate elections and to
prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their
platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball,
or crack a toilet joke, or exhibit some such dubious talent irrelevant to their ability to discharge a public office. The
public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall
be allowed and stickers should not be attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is
the support of their drooling fans, the demagogues who drumbeat to the clink of coins their professed present
virtues and past innocence, the opportunists for whom flexibility is a means of political survival and even of financial
gain, and, most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose
these office-seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the
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2/1/24, 7:55 PM G.R. No. L-27833
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27833 April 18, 1969
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT
4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the
undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the
ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic
liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the
act. Thus the question confronting this Court is one of transcendental significance.
It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy.
One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association
with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the
safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the
limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming
efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to
paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark
opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite
knowledge to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that
history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is
appropriately invoked.
This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they
entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been
started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and
the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in
the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967,
prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or partisan political
activity. 3
The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former
according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether
or not said person has already filed his certificate of candidacy or has been nominated by any political party as its
candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or
not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a
proviso that simple expression of opinion and thoughts concerning the election shall not be considered as part of an
election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any
person from expressing his views on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." 4
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Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila
and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on
November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of
Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880
in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and
their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine
Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of
assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit
or intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy,
public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is
but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the
right to form associations and societies for purposes not contrary to law, ..." There was the further allegation that the
nomination of a candidate and the fixing of period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among themselves through self-restraint or
mutual understanding or agreement and that the regulation and limitation of these political matters invoking the
police power, in the absence of clear and present danger to the state, would render the constitutional rights of
petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void,
respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the
validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative
defenses, procedural and substantive character, would have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the
following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F.
Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were
given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu
of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No.
L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having
deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having
developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised
Election Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional
without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court
[resolved] to defer final voting on the issue until after the return of the Justices now on official leave."
The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo
Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on
American Supreme Court opinion that warn against curtailment in whatever guise or form of the cherished freedoms
of expression, of assemble and of association, all embraced in the First Amendment of the United States
Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios.
Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a
persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral
process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred
rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and
present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being
debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with
the loss not only of efficiency in government but of lives as well.
The matter was then discussed in conference, but no final action was taken. The divergence of views with reference
to the paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain
entities to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar
Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included,
among them. They did file their respective memoranda with this Court and aided it in the consideration of the
constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is
their view that respondent Commission on Elections not being sought to be restrained from performing any specific
act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the
remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the original stand that
under the circumstances it could still rightfully be treated as a petition for prohibition.
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The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question.
Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that
the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable
necessity for a ruling, the national elections being, barely six months away, reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter.
There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that
ordinarily, a party who impugns the validity of a statute or ordinance must have a substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such
interest as being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of
the petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not
necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to
restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative
measure. 9
2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an
exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating
"conduct which Congress has determined harmful if unstrained and carried for a long period before elections it
necessarily entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths,
results in the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of
the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the
constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and
'freedom' of association. Would it were as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach.
"The case confronts us again with the duty our system places on this Court to say where the individual's, freedom
ends the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual.
presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which
determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of
respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual
rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925,
Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free
speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional liberty." 11
Another leading State decision is much more emphatic: "Broad as the power of the legislature is with respect to
regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the
legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be
compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be squarely met. lawphi1.nêt
3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is
unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a
fundamental postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of
the press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to
be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 15
prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and
present danger of substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of
assuring individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including
political decision-making, and of maintaining the balance between stability and change. 19 The trend as reflected in
Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this
constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be
uninhibited, robust, and wide-open. 20 It is not going too far, according to another American decision, to view the
function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and
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of the press thus means something more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any matter of
public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for those
who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we
hate, no less than for the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a
whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in
which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a
rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging
toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of
a society that is tyrannical, conformist, irrational and stagnant." 23
From the language of the specified constitutional provision, it would appear that the right is not susceptible of any
limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex
society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to
insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. How is it to be limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible
restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely
serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be
guarded against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to
the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be public
established."
The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the
words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable.
It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice?
Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned
above?" The choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a
matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear
and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders
thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there
be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education,
the remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be "relatively
serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as
the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the
substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo:
"There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme
borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question
in every case is whether the words used in such circumstances and of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." 29
This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that
the state has a right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also
present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from
the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate
danger. The danger must not only be probable but very likely inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of
speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As
was pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence
of our republican institution and complements the right of free speech. Assembly means a right on the part of
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citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy,
the welfare of society and orderly administration of government have demanded protection for public opinion." To
paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident
or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the
rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights
while not identical are inseparable. They are cognate rights and the assurance afforded by the clause of this section
of the Bill of Rights wherein they are contained, applies to all. As emphatically put in the leading case of United
States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its citizens
to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the
case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that Congress has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or
without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a
member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are
dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an
indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it
is primarily the first amendment of her Constitution, which safeguards freedom of speech and of the press, of
assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and
continue to contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the
significance of the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for
himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The
right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No
legislator can attack it without impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it
would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame
of mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or
religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is
enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on its political significance. If such a right
were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional
democracy as intended by the Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority
as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost
scope should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so
for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the
help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from
Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under
the due process version of the First Amendment. But the associational rights protected by the First Amendment are
in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in
teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of
political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or
unpopular, that exist in this country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the
right to form associations or societies when their purposes are "contrary to law". How should the limitation "for
purposes not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and
present danger rule for unless an association or society could be shown to create an imminent danger to public
safety, there is no justification for abridging the right to form association societies.37 As was so aptly stated: "There
is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen
entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he
associates with are no concern to government — until and unless he moves into action. That article of faith marks
indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and
on the Right." 38 With the above principles in mind, we now consider the validity of the prohibition in Republic Act
No. 4880 of the too early nomination of candidates and the limitation found therein on the period of election
campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press,
freedom of assembly and freedom of association. In effect what are asked to do is to declare the act void on its face
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evidence having been introduced as to its actual operation. There is respectable authority for the court having the
power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any
alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration
that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger
of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would
be to close one's eyes to the realities of the situation. Nor can we ignore the express legislative purpose apparent in
the proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part
of an election campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any
person from expressing his views on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the entire provision restricting the period of
an election campaign or partisan political activity.
The prohibition of too early nomination of candidates presents a question that is not too formidable in character.
According to the act: "It shall be unlawful for any political party political committee, or political group to nominate
candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an
election." 40
The right of association is affected. Political parties have less freedom as to the time during which they may
nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope
of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to
assemble. They can do so, but not for such a purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny.
According to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any
group or association of persons whether or not a political party or political committee, to engage in an election
campaign or partisan political activity except during the period of one hundred twenty days immediately preceding
an election involving a public office voted for at large and ninety days immediately preceding an election for any
other elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office,
regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to
have a candidate elected or not or promote the candidacy of a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken
down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is
valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That
cannot be done; such an undesirable eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute
having inhibiting effect on speech; a man may the less be required to act at his peril here, because the free
dissemination of ideas may be the loser.41 Where the statutory provision then operates to inhibit the exercise of
individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the
statute is inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words
which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is the
reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our
society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions."
44
7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the
constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This
on the one hand.
On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process.
There can be under the circumstances then no outright condemnation of the statute. It could not be said to be
unwarranted, much less arbitrary. There is need for refraining from the outright assumption that the constitutional
infirmity is apparent from a mere reading thereof.
For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what
ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures
weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid
restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger
that calls for measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and
of association.
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This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such
constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be an
occasion for the imposition of such restrictions but also that they be limited in scope.
There are still constitutional questions of a serious character then to be faced. The practices which the act identifies
with "election campaign" or "partisan political activity" must be such that they are free from the taint of being violative
of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from
constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election
campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose
of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate or party;(c) making
speeches, announcements or commentaries or holding interviews for or against the election or any party or
candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly
soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or
receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection
that may be raised as to vagueness has been minimized, if not totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional
infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of
persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a
candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for
election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48
The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences,
meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate
exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, and with the same
Justices entertaining the opposite conviction, we reject the contention that it should be annulled. Candor compels
the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory prescription
could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the
judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical,
because of their collision with the preferred right of freedom of expression. From the outset, such provisions did
occasion divergence of views among the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which
freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present
danger of a substantive evil, the debasement of the electoral process.
The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda
whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or
holding interview for or against the election for any party or candidate for public office, 52 or the publication or
distribution of campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more
affirmative vote to call for a declaration of unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory
condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns.
The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed
many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and
even death did frequently occur because of the heat engendered by such political activities. Then, too, the
opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified.
Under the police power then, with its concern for the general welfare and with the commendable aim of safe-
guarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is
understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the
laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion
reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is
devoid of merit.
It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the
holding of interviews for or against the election of any party or candidate for public office and the prohibition of the
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publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or
indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution
cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear
and present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an
adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices
prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear
and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite
standards in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of
the Court could discern "an over breadth that makes possible oppressive or capricious application" 55 of the
statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose constitutionally subject to control or prevent
activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms. 56
It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot
be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious
freedoms. 58
Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as
unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of
nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all
insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would
seriously pose.
Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada,
appearing before us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative
body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but
to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well
as violence that of late has invariably marred election campaigns and partisan political activities in this country. He
did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady
requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by
it, unless clearly repugnant to fundamental rights, be ignored or disregarded.
More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation
of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly
and of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election
shall not be considered as part of an election campaign [and that nothing in the Act] shall be understood to prevent
any person from expressing his views on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports. 60 If properly implemented then, as it ought to, the barrier to free,
expression becomes minimal and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever
cutting edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution
commands as far as freedom of the mind and of association are concerned. It is its opinion that it would be
premature to say the least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for
adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional application of its
provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is
time enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the
electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation
to impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and
the utmost deference, freedom of speech and of the press, of assembly, and of association. We cannot, however, be
recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice
Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as
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manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the
Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility
incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice
of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the
preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all
due reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the
sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion
for the power to annul statutes to come into play.
Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.
Separate Opinions
SANCHEZ, J., concurring and dissenting:
Petitioners in the present case aim at striking down as violative of constitutional guarantees Republic Act 4880, the
principal features of which are contained in its Sections 1, inserting Sections 50-A and 50-B between Sections, 50
and 51 of the Revised Election Code, reproduced herein as follows:1
SECTION 1. Republic Act Numbered One hundred and eighty, as amended, is hereby further amended by
inserting new sections to be known as Sections 50-A and 50-B, between Sections 50 and 51 thereof, which
shall read as follows:
SEC. 50-A. Prohibition of too early nomination of Candidates. — It shall be unlawful for any political party,
Political Committee, or Political group to nominate candidates for any elective public office voted for a large
earlier than one hundred and fifty days immediately preceding an election, and for any other elective public
office earlier than ninety days immediately preceding an election.
SEC 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. — It is unlawful for
any person whether or not a voter or candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately preceding an election for any public office.
The term "Candidate" refers to any person aspiring for or seeking an elective public office, regardless of
whether or not said person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate.
The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the election
of any party or candidate for public office;
(d) Publishing or distribution campaign literature or materials;
(e) Directly or indirectly soliciting vote and/or undertaking any campaign or propaganda for or against
any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or
indirectly: Provided, That simple expressions or 2 opinion and thoughts concerning the election shall not be considered as
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part of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any person from expressing his views
on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports.
Appropriately to be stated right at the start is that violation of the above provisions is considered a serious election
offense. The penalty is "imprisonment of not less than one (1) year and one (1) day but not more than five (5) years"
with accompanying "disqualification to hold a public office and deprivation of the right of suffrage for not less than
one (1) year but more than nine (9) years" and payment of costs. 3
1. The issue of constitutionality of R.A. 4880 again brings to the fore the eternally-warring concepts of individual
liberty and state authority.
Invalidity is pressed on the ground that the statute violates the rights of free speech and press, of peaceable
assembly, and of association. 4 This Court is asked to rule that in the context of the ill-effects to be cured, the
legislative remedy adopted, vis-a-vis the rights affected, does not meet what petitioners claim to be the rational
basis test; that, on the contrary, the relief prescribed would more likely produce the very evils sought to be
prevented. This necessitates a circumspect discussion of the issue.
In proceeding the working assumption is that individual liberty is not absolute. Neither is state authority, inspite of its
sweep, limitable. Fixed formulas and ready-made rules that seek to balance these two concepts could well redeem
one from the unnerving task of deciding which ought to prevail.
It is at this point that we call to mind the principle that the relation between remedy and evil should be of such
proximity that unless prohibited, conduct affecting these rights would create a "clear and present danger that will
bring about substantive evils that Congress has a right to prevent."5
Withal doctrines which conceal behind the cloak of authoritative origin a tendency to muffle the demands of society,
must pass the glaring light of contemporaneity. For, in the consideration of questions on constitutionality, one should
remain receptive to the implication of John Marshall's resonant words that "it is a constitution we are expounding."6
Such authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is
growing into a way of life, that political campaigns are becoming longer and more bitter. It is a result of legislative
Appraisal that protracted election campaign is the root of undesirable conditions. Bitter rivalries precipitate violence
and deaths. Huge expenditures of funds give deserving but poor candidates slim chances of winning. They
constitute an inducement to graft to winning candidates already in office in order to recoup campaign expenses.
Handouts doled out by and expected from candidates corrupt the electorate. Official duties and affairs of state are
neglected by incumbent officials desiring to run for reelection. The life and health of candidates and their followers
are endangered. People's energies are dissipated in political bickerings and long drawn-out campaigns. 7 Indeed, a
drawn-out political campaign taxes the reservoir of patience and undermines respect of the electorate for democratic
processes. Sustained and bilious political contests eat away even the veneer of civility among candidates and their
followers and transplant brute force into the arena.
Such legislative appraisal, such ill-effects, then must constitute a principal lever by which one concept could win
mastery over the other.
R.A. 4880 is a police power legislation. It was enacted by virtue of the inherent power of Congress to legislate on
matters affecting public interest and welfare, 8 as well as in pursuance of the constitutional policy of insuring a free,
honest and orderly election. 9 Basically, the undefined scope of that power extends as far as the frontiers of public
interest would advance. Fittingly, legislative determination of the breadth of public interest should Command respect.
For, Congress is the constitutional body vested with the power to enact laws. Its representative composition induces
judgment culled from the diverse regions of the country. Normally, this should assure that a piece of police
legislation is a reflection of what public interest contemporaneously encompasses.
2. It is, however, postulated that the right of peaceable assembly is violated by the prohibition on holding political
assemblies for a period lasting more than one year; that the right to form associations is contravened by forbidding,
for the same period, the formation of political groups; that, finally, freedom of speech and of the press is unduly
restricted by a legislative fiat against speeches, announcements, commentaries or interviews favorable or
unfavorable to the election of any party or candidate, publishing or distributing campaign literature or materials, and
directly or indirectly soliciting votes and/or under-taking any campaign or propaganda for or against any candidate or
party, except during a number of days immediately preceding the election.
What has repeatedly been urged is the view that the underlying historic importance of the foregoing specified rights
in democratic societies requires that the posture of defense against their invasion be firmer and more
uncompromising than what may be exhibited under the general due process protection. 10 The absolute terms by
which these specific rights are recognized in the Constitution justifies this conclusion. 11
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And yet, sight should not be lost of the fact that Congress has made a determination that certain specific evils are
traceable directly to protracted election, activities. Congress has found a solution to minimize, if not prevent, those
evils by limiting the period of engaging in such activities. The proponents of validity would rely upon experience to
deduce the connection between the cited evils and prolonged political campaign. By limiting the period of campaign,
so they say, it is expected that the undesirable effects will be wiped out, at least, relieved to a substantial degree.
This, of course, is largely an assumption. Congress we must stress, has put up an untried measure to solve the
problematic situation. Deduction then is the only avenue open: for Congress, to determine the necessity for the law;
for the Court, its validity. The possibility of its inefficaciousness is not remote. But so long as a remedy adopted by
Congress, as far as can logically be assumed, measures up to the standard of validity, it stands.
We give our imprimatur to Section 50-A. We may not tag as unconstitutional 50-B, and its subsections (a), (b) and
(f). We fear no serious evil with their enforcement. They do not offend the constitutionally protected speech and
press freedoms, and rights of peaceable assembly and association. The latter must yield. The proscriptions set forth
in all of them are clear-cut, not open to reasonable doubt, nor easily susceptible to unreasonable interpretation.
Public interest and welfare authorize their incorporation into the statute books.
3. To this writer, however, the center of controversy is to be found in subsections (c), (d) and (e) of Section 50-B.
Those who espouse validity assert that no undue restriction results because, by jurisprudence, solicitation and
campaign are outside the ambit of protected speech. 12 But this rule, it would seem to us, has relevance only to
commercial solicitation and campaign. There is no point here in delving into the desirability of equating, in social
importance, political campaign with advertisements of gadgets and other commercial propaganda or solicitation. 13
For, the statute under consideration goes well beyond matters commonly regarded as solicitation and campaign.
Suffice it to say that jurisprudence tends to incline liberally towards freedom of expression in any form when placed
in juxtaposition with the regulatory power of the State. 14
Legislative history of the statute now before us indicates that what Congress intends to regulate are partisan
activities and active campaigning.
Campaigning, as defined by the sponsor of Senate Bill 209 in the Senate, is a "series of operations." This, evidently,
must have been adopted from the dictionary meaning of campaign: a connected series of operations to bring about
some desired result.
The term "partisan political activity" has somehow acquired a more or less definite signification. It is not a new
feature in Philippine political law. It has been regulated to stem dangers to specific state interests. The Constitution
itself contains an injunction against civil service officers and employees from engaging directly or indirectly in
partisan political activity or taking part in any election except to vote. 15 The civil service law 16 and the Revised
Election Code, 17 echo this absolute prohibition which is obviously aimed at the possible neglect of public service
and its prostitution with partisan interests. The following are cited in the Civil Service Rules as examples of partisan
political activity: candidacy for elective office; being a delegate to any political convention or member of any political
committee or officer of any political club or other similar political organization; making speeches, canvassing or
soliciting votes or political support in the interest of any party or candidate; soliciting or receiving contributions for
political purposes either directly or indirectly; and becoming prominently identified with the success or failure of any
candidate or candidates for election to public office. 18
In the context in which the terms "partisan political activity" and "election campaign" are taken together with the
statutory purpose, the following from Justice Holmes would be particularly instructive: "Wherever the law draws a
line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but
no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal
law to make him take the risk." 19
4. Perhaps if the phrases "election campaign" or "partisan political activity" were left to be explained by the general
terms of the law as solely referring "to acts designed to have a candidate elected or not or promote the candidacy of
a person or persons to a public office", it would be difficult to say that such prohibition is offensive to speech or press
freedoms. But then the law itself sought to expand its meaning to include an area of prohibited acts relating to
candidates and political parties, wider than an ordinary person would otherwise define them.
Specifically, discussion — oral or printed — is included among the prohibited conduct when done in the following
manner (Section 50- B)
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate for public office:
(d) Publishing or distributing campaign literature or materials;
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(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any
candidate or party.
Defined only as lawful discussion is the following:
Provided. That simple expressions of opinion and thoughts concerning the election shall not be considered as
part of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any
person from expressing his views on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports.
The conduct involved in the discussion as to make it illegal is not clearly defined at all. The implication then is that
what is prohibited is discussion which in the view of another may mean political campaign or partisan political
activity. The speaker or writer becomes captive under the vigilant but whimsical senses of each listener or reader.
His words acquire varying shades of forcefullness, persuasion and meaning to suit the convenience of those
interpreting them. A position becomes solicitation. As admonition becomes a campaign or propaganda.
As worded in R.A. 4880, prohibited discussion could cover the entire spectrum of expression relating to can
candidates and political parties. No discussion is safe. Every political discussion becomes suspect. No one can
draw an indisputable dividing line between lawful and unlawful discussion. More so that statutory restraint falls upon
any person whether or not a voter or candidate.
Candidacy is not enjoined during the proscriptive period. A person may thus make public his intention to run for
public office. So may an incumbent official profess his desire to run for reelection. The law therefore leaves open,
especially to the electorate, the occasion if the temptation for making statements relating to a candidacy .The natural
course is to comment upon or to discuss the merits of a candidate, his disqualifications, his opponents for public
office, his accomplishments, his official or private conduct. For, it can hardly be denied that candidacy for public
office is a matter of great public concern and interest.
Yet, this normal reaction to discuss or comment is muzzled by an unqualified prohibition on announcements or
commentaries or interviews for or against the election of any party or candidate, on publishing campaign literature,
and on indirect solicitation and campaign or propaganda for or against any party or candidate. Even incumbent
officials are stopped. Every appearance before the public, every solicitous act for the public welfare may easily
become tainted.
5. Nor does the proviso offer any corresponding protection against uncertainty. "Simple expressions of opinion and
thoughts concerning the election" and expression of "views on current political problems or issues" leave the reader
to conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the utterance it simple
expressions of opinion and thoughts") or the subject of the utterance ("current political problems or issues"). The line
drawn to distinguish unauthorized "political activity" or "election campaign" — specifically, a speech designed to
promote the candidacy of a person from a simple expression of opinion on current political problems is so tenuous
as to be indistinguishable. 20 If we are to paraphrase Mr. Justice Holmes, then the thought should run something like
this: The only difference between expression of an opinion and the endorsement of a candidate is "the speaker's
enthusiasm for the result." 21
Only one area is certain. A person may only mention the candidate whom he supports. Beyond mentioning the
name, it is no longer safe. But is it not unduly constricting the from of rational-minded-persons to back up their
statements of support with reasons?
The peculiarity of discussion, be it oral or printed, is that it carries with it varying degrees of "enthusiasm and
inclination to persuade", 22 depending upon the listener or reader. It falls short of a partisan political activity when it
is devoid of partisan interest in the sense that it is not made in the interest of a candidate or party. This is the only
criterion for validity. But who is to decide this? And how? The law does not even require that there be an operation
or a series of operations in order to measure up to an election campaign as it is commonly understood. In this way,
the law may well become an instrument of harassment. Worse, it could lull the potential had defendant into a false
sense of security. It then becomes a dragnet that may trap anyone who attempts to express a simple opinion on
political issues.
6. More than this, the threat of punishment will continually hound a speaker who expounds his views on political
issues. Because of its punitive provisions, the statute surely tends to restrict what one might, say his utterance be
misunderstood as "designed to promote the candidacy of a person." A person would be kept guessing at the precise
limits of the permissible "simple expression". To play safe, he would be compelled to put reins on his words for fear
that they may stray beyond the protected area of "simple expression". The offshoot could only be a continuous and
pervasive restraint on all forms of discussion which might time within the purview of the statute. This thought is not
new. It is underscibed in NAACP vs. Button, 371 U.S. 415, 9 L. ed, 405, in language expressive, thus. —
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The objectionable quality of vagueness and over breadth does not depend upon absence of fair notice to a
criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in
the area of first amendment freedoms, the existence of a penal statute susceptible of sweeping and improper
application.... These freedoms are delicate and vulnerable as well as supremely precious in our society. The
threat of sanctions way deter their exercise almost as the actual application of the sanctions. Because the first
amendment freedoms need breathing space to survive, government may regulate in the area only With
narrow specificity.23
It is thus in the self-imposed restraint that works in the minds of ordinary, law-abiding citizens that a vague statute
becomes unjust.
Because of the indefiniteness created in subsections (c), (d) and (e) of Section 50-B, they readily lend themselves to
harsh application. Vagueness of the law enforcers. Arbitrary enforcement of the letter of the law by an expansive
definition of election campaign or partisan political activity, should not be branded as improbable. For, political
rivalries spawn persecution. The law then becomes an unwitting tool. Discussion may be given a prima facie label
as against the harassed. This is not altogether remote. To be sure, harassment and persecution are not unknown to
the unscrupulous.
7. Those who favor validity find comfort in the theory that it is better for the meantime to leave the statute well
enough alone. They say that it is preferable that courts of justice be allowed to hammer out the contours of the
statute case by case. This may not, however, be entirely acceptable. To forego the question of constitutionality for
now and take risks may not be the wiser move. As well advocated elsewhere. 24 a series of court prosecutions will a
statute, still leaving uncertain other portion thereof. And then, in deciding whether or statute can be salvaged, one
must not hedge and assume that when it is enforced in the be resolved in favor of upholding free speech and press.
More important, there is the heavy penalty prescribed. A candidate, or any person for that matter, can unreasonably
be saddled by court suits. Even if the accused were later to be declared innocent, thoroughly unnecessary is the
burden of lawyers' fees, bail bonds and other expenses, not to say of energy to be consumed, effort to be expended,
time to be spent, and the anxieties attendant in litigation.
It cannot really be said that the courage to speak out, barring all risks, is an ordinary human trait. Timorous men
should not grow in number. And yet, it would appear that this is the effect of the enforcement of the law. The
constant guide should be the warning of Justice Brandeis "that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." 25
As we analyze the import of the law, we come to the conclusion that subsections (c), (d) and (e) of Section 50-B
inserted into the Revised Election Code by Republic Act 4880, heretofore transcribed, run smack against the
constitutional guarantees of freedom of speech and of the press. Hence, this concurrence and dissent.
CASTRO, J., dissenting:
Presented for consideration and decision is the constitutionality of Section 50-A and 50-B of the Revised Election
Code, which were inserted as amendatory provisions by Republic Act 4880. 1 These sections read in full as follows:
SEC. 50-A. Prohibition of too early nomination of Candidates. — It shall be unlawful for any political party,
Political Committee or Political group to nominate candidates for any elective public office voted for at large
earlier than one hundred and fifty days immediately preceding an election, and for any other elective public
office earlier than ninety days immediately preceding an election.
SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. — It is unlawful for
any person whether or not a voter or candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately preceding an election involving a public office
voted for at large and ninety days immediately preceding an election for any other elective public office.
The term "Candidate" refers to any person aspiring for or seeking an elective public officer, regardless of
whether or not said has already filed his certificate of candidacy or has been nominated by any political
candidate.
The term "Election Campaign" or Partisan Political Activity refers to the acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate;
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(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or against a candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the election
of any party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against
any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or
indirectly. Provided, That simple expressions of opinion and thoughts concerning the election shall not
be considered as part of an election campaign; Provided, further. That nothing herein stated shall
understood to prevent any person from expressing his views on current political problems or issues, or
from mentioning the names of the candidates for public office who he supports.
Violation of these two section are classified as "serious election offenses" under Section 183 of the Revised Election
Code, as amended R.A 4880, punishable with "imprisonment of not less than one year and one day but not more
than five years" and "disqualification to hold a public office and deprivation of the right of suffrage for not less than
one year but not more than nine years." 2
The basic purpose of R.A. 4880 is easily discenible. Congress felt the need of curtailing excessive and extravagant
partisan political activities, especially during an election year, and, to this end, sought to impose limitations upon the
times during which such activities may be lawfully pursued. The legislative concern over excessive political activities
was expressed in the following terms in the explanatory note of Senate Bill 209, which finally came R.A. 4880:
There is nothing basically wrong in engaging in an election campaign. Election campaign is indispensable
part of election just as election is one of the most important fundamental requirements of popular government.
It is also during election campaign that the stands of prospective political parties on vital national and local
issues are made known to the public, thereby guiding the enfranchised citizenry in the proper and appropriate
expression of its sovereign will.
Past experience, however, has brought to light some very disturbing consequences of protracted election
campaigns. Because of prolonged exposure of both candidates and the people to political tension, what starts
out at first as gentlemanly competition ends up into bitter rivalries precipitating violence and even deaths.
Prolonged election campaigns necessarily entail huge expenditures of funds on the part of the candidates.
Now, no matter how deserving and worthy he is, a poor man has a very slim chance of winning an election.
Prolonged election campaigns indeed carry with it not only the specter of violence and death, not only the
objectionable dominion of the rich in the political arena, but also the corruption of our electorate. We must
adapt our democratic processes to the needs of the times.
I
The prohibitions introduced by R.A. 4880 purport to reach two types of activities, namely, (a) early nomination of
candidates for elective public offices (Sec. 50-A), and (b) early election campaigns or partisan political activities
(Sec. 50-B). The first prohibition is specifically directed against political parties, committees, and groups; the second
prohibition is much more comprehensive in its intended reach, for it operates upon "any person whether or not a
voter or a candidate" and "any group or association of persons whether or not a political party or political
committee."
Section 50-B brings within the ambit of its proscription a wide range of activities. The catalogue of activity ties
covered by the prohibition against early election campaigning embraces two distinguishable types of acts; (a) giving,
soliciting or receiving contributions for election campaign purposes, either directly or indirectly; and (b) directly or
indirectly soliciting votes or under-taking any campaign or propaganda for or against any candidate or party, whether
by means of speech, publication, formation of organizations, or by holding conventions, caucuses, meetings or other
similar assemblies. The term "candidate" is itself broadly defined to include "any person aspiring for or seeking an
elective public office," whether or not such person has been formally nominated.
The sweeping character of the prohibitions in Section 50-B is sought to be mitigated and delimited by the provisos
exempting from their operation (a) "simple expressions of opinion and thoughts concerning the election," (b)
expression of "views on current political problems or issues," and (c) "mentioning the names of the candidates for
public office" whom one supports.
Before assaying the constitutional quality of Sections 50-A and 50-B, it is relevant to point out that these two section
are not wholly consistent with each other, and that considerable practical difficulties may be expected by those who
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would comply with the requirements of both. Under Section 50-A, political parties are allowed to nominate their
official candidates for offices voted for at large within 150 days immediately preceding the election. At the very least,
this section would seem to permit a political party to hold a nominating convention within the 150 days period.
Section 50-B, however, makes it unlawful to promote or oppose the candidacy of any person seeking such office,
whether or not such person "has been nominated by any political party," and to engage in an election campaign "for
and against a candidate or party," except within the period of 120 days immediately preceding the election. I find it
difficult to see how a political party can stage a nominating convention 150 days before an election if, at such time,
neither any person nor group within such party may seek a nomination by campaigning among the delegates to the
convention. By its very, nature, a nominating convention is intrinsically a forum for intensely partisan political activity.
It is at the nominating convention that contending candidates obtain the formal endorsement and active support of
their party the ultimate purpose of victory at the polls. A nominating convention, at which activity promoting or
opposing the candidacies of particular persons seeking nominations is forbidden, is a practical impossibility. Thus,
the very broadness of prohibitions contained in Section 50-B has the effect of reducing, as a practical matter, the
time period specified in Section 50-A for nomination of candidates for national offices from 150 to 120 days before
an election.
II
We turn to the central issue of constitutionality. That the legislature has, in broad principle, competence to enact
laws relative to the conduct of elections is conceded. Congress may not only regulate and control the place, time
and manner in which elections shall be held, but may also provide for the manner by which candidates shall be
chosen. In the exercise of the police power, Congress regulate the conduct of election campaigns and activities by
political parties and candidates, and prescribe measures reasonably appropriate to insure the integrity and purity of
the electoral process. Thus, it has not been seriously contested that Congress may establish restraints on
expenditures of money in political campaigns, 3 prohibit solicitation of votes for a consideration, 4 and penalize
unlawful expenditures relative to the nominations of dates. 5 Laws of this kind lie fairly within the area of permissible
regulation, and I think, that, in shaping specific regulations, Congressional discretion may be exercised within a wide
range without remonstrance from the courts.
If no more were at stake in Sections 50-A and 50-B than the political or personal convenience of a candidates
faction or political group, we could with the least hesitation resolve the issue of constitutionality in favor of the
legislative intendment. But infinitely more is at stake, for in enacting this prohibitions of Sections 50-A and 50-B,
Congress has place undeniable burdens upon the exercise of fundamental political and personal freedoms encased
in the Bill of Rights from legislative intrusion. There is firstly, a manifest restriction on the free exercise of the rights of
speech and of the press in the provisions of Section 50-B imposing a limitation of time on the following activities.
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate or party;
(d) Publishing or distributing, campaign. literature or materials
(e) Directly or indirectly soliciting votes and or undertaking any campaign or propaganda for or against any
candidate or party;
Likewise, the regulation of the time within which nominations of candidates by political parties may take place, under
Section 50-A, and fixing a time limit for holding "political conventions, caucuses, conference meetings, rallies,
parades, or other similar assemblies" for campaign purposes under paragraph (b) of Section 50-B, curtails the
freedom of peaceful assembly. And finally, the right to form associations for purposes not contrary to law is impinged
upon by the provision of paragraph (a) of Section 50-B regulating the forming of "Organizations, Associations,
Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign
or propaganda for or against a party or candidate."
It is fairly accurate to say that legislations imposing restrictions upon the right of free expression, and upon the right
of assembly and of political association indispensable to the full exercise of free expression, have commonly been
subjected to more searching and exacting judicial scrutiny than statutes directed at other personal activities. As aptly
said by the United States Supreme Court in Schneider v. Irvington:6
In every case, ... where legislative abridgment of the rights is asserted, the courts should be astute to
examine the effect of the challenged legislation. Mere legislative preference or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities but be in sufficient to
justify such as diminishes are exercise of rights so vital to the maintenance of democratic institutions.
Thomas v. Collins7exemplifies the same approach: "The rational connection between the remedy provided and the
evil to be curbed, which in other contexts might support legislation against attack on other grounds, will not suffice.
These rights [of expression and assembly] rest on firmed foundations."
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The belief that more exacting constitutional tests are appropriately applied upon statutes having an actual or
potential inhibiting effect on the right of speech, and the cognate rights of assembly and association, flows from
recognition of the nature and function of these rights in a free democratic society. Historically the guarantees of free
expression were intended to provide some assurance that government would remain responsive to the will of the
people, in line with the constitutional principle that sovereignty resides in the people and all government authority
emanates from them. 8 The viability of a truly representative government depends upon the effective protection and
exercise of the rights of the people to freely think, to freely discuss and to freely assemble for redress of their
grievances; for these underlie the mechanisms of peaceful change in a democratic polity. There is ample authority in
history for the belief that those who value freedom, but are frustrated in its exercise, will tend to resort to force and
violent opposition to obtain release from their repression. So essential are these freedoms to the preservation and
vitality of democratic institutions that courts have on numerous occasions categorized them as occupying a
"preferred position" in the hierarchy of civil liberties. 9 "That priority," intoned the court in Thomas v. Collins, supra,
"gives these liberties a sanctity and a sanction not per permitting dubious instrusions."
This is not to say that the rights of free expression and of peaceful assembly may not be constitutionally restricted
by legislative action. No one has seriously doubted that these rights do not accord immunity to every possible use of
language or to every form of assembly. Circumstances may arise in which the safety, perhaps the very survival of
our society, would demand deterrence and compel punishment of whomsoever would abuse these freedoms as well
as whomsoever would exercise them to subvert the very public order upon the stability of which these freedoms
depend.
... It is a fundamental principle, long established, that the freedom of speech and of the press which is
secured by the Constitution does not confer an absolute right to speak or publish, without responsibility,
whatever one may choose, or unrestricted or unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom.10
The right to freedom of speech, and to peaceful assembly and petition the government for redress of
grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of
democratic countries. But it is a settled principle growing out of the nature of well ordered civil societies that
the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to
regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is
the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and
general welfare of people.11
But in every case where there arises a clash between an assertion of State authority and the exercise of free
speech and assembly, it is ultimate the high function and duty of this court to locate the point of accomodation and
equilibrium and draw the line between permissible regulation and forbidden restraint.
It is now conventional wisdom that this function of delimitation and adjustment cannot meaningfully be carried out
through the iteration of abstract generalizations. The restriction that is assailed as unconstitutional must be judged in
the context of which it is part, taking into account the nature and substantiality of the community interest sought to
be protected or promoted by the legislation under assay, in relation to the nature and importance of the freedom
restricted and the character and extent of the restriction sought to be imposed.
III
Various standards have been evolved for the testing of the validity of a rule or regulation curtailing the rights of free
speech, free press, and peaceful assembly. At the earlier stages in the development of jurisprudence on the matter,
it was said that the State has the power to proscribe and punish speech which the State has the right to prevent." 12
The "dangerous tendency" rule, as this formulation has been called, found favor in many decisions of this Court. 13
In the United States, the "dangerous tendency" doctrine was early abandoned, and superseded by the "clear and
present danger" rule. By the year 1919, the majority of the members of the United States Supreme Court got around
to accepting Justice Holmes' view that "the question in every case is whether the words are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent." 14 To sustain legislation imposing limitations upon freedom of
speech or of assembly, a court must find that the evil sought to be avoided by the legislative restriction is both
serious and imminent in high degree. As stated in Bridges v. California: 15
... the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon
freedom of the speech or the press. The evil itself must be "substantial" ...; it must be "serious" ....
What clearly emerges from the "clear and present danger" cases is a working principle that the substantive
evil must be extremely serious and the degree of imminence extremely high before utterances can be
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punished ...
The "clear and present danger" rule has been cited with approval, in at least two decisions of this Court. 16
The "dangerous tendency" and "clear and present danger" doctrines, it should not escape notice, were fashioned in
the course of testing legislation of a particular type legislation limiting speech expected to have deleterious
consequences on the security and public order of the community. The essential difference between the two
doctrines related to the degree of proximity of the apprehended danger which justified the restriction upon speech.
The "dangerous tendency" doctrine permitted the application of restrictions once a rational connection between the
speech restrained and the danger apprehended — the "tendency" of one to create the other — was shown. The
"clear and present danger" rule, in contrast, required the Government to defer application of restrictions until the
apprehended danger was much more visible until its realization was imminent and nigh at hand. The latter rule was
thus considerably more permissive of speech than the former, in contexts for the testing of which they were
originally designed.
In other types of contexts, however, where the "substantive evil" which Congress seeks to avoid or mitigate does not
relate to the maintenance of public order in society, the adequacy or perhaps even the relevancy of these doctrines
cannot be casually assumed. It would appear to me that one of these contexts would be that where the legislation
under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and
where the effect of speech and assembly in terms of the probability of realization of a specific danger is not
susceptible even of impressionistic calculation. I believe that Sections 50-A and 50-B come within such context.
Congress enacted these provisions not because it feared that speeches and assemblies in the course of election
campaigns would, probably or imminently, result in a direct breach of public order or threaten national security.
Sections 50-A and 50-B explicitly recognize that such speech and assembly are lawful while seeking to limit them in
point of time.
However useful the "clear and present danger" formulation was in the appraisal of a specific type of situation, there
is fairly extensive recognition that it is not a rule of universal applicability and validity, not an automatic mechanism
that relieves a court of the need for careful scrutiny of the features of a given station and evaluation of the competing
interests involved.
In American Communications Ass'n v. Douds. 17 the United States Supreme Court unequivocally said that "in
suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay
down an absolutist test measured in terms of danger to the Nation." Rejecting the criterion of "clear and present
danger" as applicable to a statute requiring labor union officers to subscribe to a non-communist affidavit before the
union may avail of the benefits of the Labor Management Relations Act of 1947, the Court, speaking through Chief
Justice Vinson, said:
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances presented.... We must, therefore
undertake the delicate and difficult task ... to weigh the circumstances and to appraise the substantiality of the
reasons advanced in support of the regulation of the free enjoyment of rights.... 18
In enunciating a standard premised on a judicial balancing of the conflicting social values and individual interests
competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has
been called the "balancing-of-interests" test which has found application in more recent decisions of the U.S.
Supreme Court. 19 Briefly stated, the "balancing" test requires a court to take conscious and detailed consideration
of the interplay of interests observable in a given situation or type of situation. 20
In the actual application of the "balancing-of-interests" test, the crucial question is: how much deference should be
given to the legislative judgment? It does not seem to me enough to say that this Court should not concern itself with
the wisdom of a particular legislative measure but with the question of constitutional power. I believe that we cannot
avoid addressing ourselves to the question whether the point of viable equilibrium represented by the legislative
judgment embodied in R.A. 4880 is an appropriate and reasonable one, in the light of both the historic purpose of
the constitutional safeguards of speech and press and assembly and the general conditions obtaining in the
community.
Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's
freedom, and the social importance and value of the freedom so restricted, "are to be judged in the concrete, not on
the basis of abstractions," 21 a wide range of factors are necessarily relevant in ascertaining the point or line of
equilibrium. Among these are (a) the social values and importance of the specific aspect of the particular freedom
restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured
by the legislation — the reference here is to the nature and gravity of the evil which Congress seeks to prevent;(d)
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whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of
such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by
some other measure less restrictive of the protected freedom. 22
In my view, the "balancing-of-interests" approach is more appropriately used in determining the constitutionality of
Sections 50-A and 50-B. Both the "dangerous tendency" and "clear and present danger" criteria have minimum
relevancy to our task of appraising these provisions. Under these two tests, the statute is to be assayed by
considering the degree of probability and imminence with which "prolonged election campaigns" would increase the
incidence of "violence and deaths," "dominion of the rich in the political arena" and "corruption of the electorate."
This kind of constitutional testing would involve both speculation and prophecy of a sort for which this Court, I am
afraid, has neither the inclination nor any special competence.
IV
Applying the "balancing-of-interests" test or approach outlined above, I am persuaded that Congress did not exceed
constitutional limits in enacting Section 50-A. This Section, it will be recalled, makes it unlawful for any political party
or group to nominate a candidate for an elective public office earlier than the period of 150 or 90 days, as the case
may be, immediately preceding the election. No political party or group can claim a constitutional right to nominate a
candidate for public office at any time that such party or group pleases. The party nomination process is a
convenient method devised by political parties and groups, as a means of securing unity of political action. 23 As a
device designed for expediency of candidates and of political parties, the process of nomination — or at least the
time aspect thereof — must yield to the requirements of reasonable regulations imposed by the State. It may be well
to note that in many jurisdictions in the United States, the nomination of candidates for public office is regulated and
controlled in many aspects by statutes. 24 While the act of nominating a candidate has speech and assembly
aspects, the restrictive effect of Section 50-A would appear negligible. The reach of the statute is itself limited: it
applies only to political parties, political committees or political groups, leaving everyone else free from restraint. The
thrust of Section 50-A is also limited: it does not prohibit political parties from holding nominating conventions or
from doing any lawful thing during such conventions; what it controls is the scheduling of the nominating
conventions; While control of the scheduling of conventions of course involves delimitation of the time period which
the formally revealed candidates have to convince the electorate of their respective merits, those periods — 150
days and 90 days — do not appear unreasonably short, at least not in this age of instantaneous and mass media.
On the other hand, the legitimacy and importance of the public interest sought to be promoted by Section 50-A must
be conceded. Congress has determined that inordinately early nominations by political parties or groups have the
tendency of dissipating the energies of the people by exposing them prematurely to the absorbing excitement of
election campaigns as we know them, and detracting from the attention that ought to be given to the pursuit of the
main task of a developing society like ours, which is the achievement of increasing levels of economic development
and social welfare.
The rational connection between the prohibition of Section 50-A and its object, the indirect and modest scope of its
restriction on the rights of speech and assembly, and the embracing public interest which Congress has found in the
moderation of partisan political activity, lead us to the conclusion that the statute may stand consistently with and
does not offend against the Constitution. The interest of the community in limiting the period of election campaigns,
on balance, far outweighs the social value of the kind of speech and assembly that is involved in the formal
nomination of candidates for public office.
V
I reach a different conclusion with respect to Section 50-B. Here, the restraint on the freedoms of expression,
assembly and association is direct. Except within the "open seen" of 120 and 90 days preceding the election, the
statute prevents and punishes — by heavy criminal sanction — speeches, writings, assemblies and associations
intended to promote or oppose the candidacy of any person aspiring for an elective public office, or which may be
deemed a direct or an indirect "campaign" or as "propaganda" for or against a political party. The prohibition reaches
not only "a relative handful of persons;" 25 applies to any person "whether or not a voter or candidate," and to any
group of persons "whether or not a political party or political committee." The effect of the law, therefore, is to impose
a comprehensive and prolonged prohibition of speech of a particular content, except during the 120 or 80 days,
respectively, immediately preceding an election.
Thus, the moment any person announces his intention of seeking an elective public office, "regardless of whether or
not said person has already filed his certificate of candidacy or has been nominated by any political party as its
candidate," Section 50-B would become immediately operative. Should the aspirant make known his intention, say,
one year before the election, the law forthwith steps in to impose a "blackout," as it were, of all manner of discussion
in support of or in opposition to his candidacy. The lips of the candidate himself are by the threat of penal sanction
sealed, and he may not make a speech, announcement, commentary, or hold an interview to explain his claim to
public office or his credentials for leadership until the commencement of the period allowed for an "election
campaign." Neither may any person, before that period, speak out in open support or criticism of his candidacy, for
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that would constitute a prohibited commentary "for or against the election of [a] candidate [albeit not a formally
nominated candidate] for public office," within the purview of paragraph (c) of Section 50-B. In practical effect,
Section 50-B would stifle comment or criticism, no matter how fair-minded, in respect of a given political party
(whether in our out of power) and prospective candidates for office (whether avowed or merely intending), and
would abide all the citizens to hold their tongues in the meantime.
What of the social value and importance of the freedoms impaired by Section 50-B? The legislation strikes at the
most basic political right of the citizens in a republican system, which is the right actively to participate in the
establishment or administration of government. This right finds expression in multiple forms but it certainly embraces
that right to influence the shape of policy and law directly by the use of ballot. It has been said so many times it
scarcely needs to be said again, that the realization of the democratic ideal of self-government depends upon an
informed and committed electorate. This can be accomplished only by allowing the fullest measure of freedom in the
public discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion —
speech, press, assembly, organization — must be kept always open. It is in the context of the election process that
these fundamental rigths secured by the Constitution assume the highest social importance. 26
As to the formation of "organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate," 27 this is a right
which, like freedom of expression and peaceable assembly, lies at the foundation of a libertarian and democratic
society. 28 As Professor Kauper has explained, with characteristic lucidity:
When we speak of freedom of association we may, have reference to it in a variety of contexts. Probably the
highest form of freedom of association, at least as many would see it, is the freedom to associate for political
purposes by means of organization of a political party and participation in its activities. The effective
functioning of a democratic society depends on the formation of political parties and the use of parties as
vehicles for the formulation and expression of opinions and policies. The minority party or parties become
vehicles for registering opposition and dissent. The political party is the indispensable agency both for
effective participation in political affairs by the individual citizen and for registering the diversity of views in a
pluralistic society. Indeed, under some other constitutional systems political parties are viewed as organs of
government and have a high constitutional status.29
We turn to the other end of the scales. As I have herein before observed, the interest of the state in regulating
partisan political activity, which is sought to, be secured by Section 50-B no less than by Section 50-A, is a
legitimate one and its protection a proper aim for reasonable exercise of the public power. I think, however, that that
interest, important as it is, does not offset the restrictions which Section 50-B imposes with indiscriminate sweep
upon the even more fundamental community interests embodied in the constitutional guarantees of speech,
assembly and association. I have adverted to Mills v. Alabama where the United States Supreme Court struck down
the Alabama Corrupt Practices Act to the extent that it prohibited, under penal sanctions, comments and criticism by
the press on election day. The statutory provision there in question 11, not unlike Section 50-B here, was sought to
be sustained in the interest of preserving the purity and integrity of the electoral process. The restriction which the
Alabama statute imposed upon freedom of speech and assembly would seem an inconsequential one — a
restriction, imposed for one day, only one day, election day; nevertheless, the United States Supreme Court
regarded such restriction as sufficient to outweigh the concededly legitimate purpose of the statute. We can do no
less in respect of restrictious of such reach, scope and magnitude as to make the limitation of the Alabama statute
appear, in comparison, as an altogether trifling inconvenience.
Indeed, if a choice is to be made between licentious election campaigns, which Section 50-B seeks to curtail, and
the muzzling, as it were, of public discussion of political issues and candidates, which the provision would
effectuate, I have no hesitancy in opting for the former. It is the only choice consistent with the democratic process.
Fortunately, there is no need to choose between one and the other; the dichotomy need not be a real one. I am not
to be understood as holding that Congress may not, in appropriate instances, forbid the abusive exercise of speech
in election campaigns. There is no constitutional immunity for a defamatory attack on a public candidate. Neither is
there protection for slander of public officials. 30 It has been held to be within the power of the legislature to penalize
specifically the making, in bad faith, of false charges of wrongdoing against a candidate for nomination or election to
public office, 31 and to prohibit the publication or circulation of charges against such candidate without serving him a
copy of such charges several days before the election. 32 Statutes of this kind have been sustained against broad
claims of impairment of freedom of speech and of the press. 33 "But it is an entirely different matter when the State,
instead of prosecuting [offenders] for such offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as a basis for criminal charge. 34
That remedies less destructive of the basic rights enshrined in the Constitution are not available, has not been
shown. The applicable principle here has been formulated in the following terms:
... even though the governmental purposes be legitimate and substantial, that purpose cannot be pursued by
means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The
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breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same
purpose.35
Section 50-B, as it would casually lump together the activities of citizens exercising their constitutional rights and
those of politicians seeking the privilege of an elective office, is to broadly drawn to satisfy the constitutional test.
The more pernicious aspects of our national preoccupation with "politics" do not arise from the exercise, even the
abuse, by the electorate of the freedoms of speech and of the press; I find it difficult to suppose that these can be
met by curtailing expression, assembly and association. The great majority of our people are too preoccupied with
demands upon their time imposed by our generally marginal or submarginal standards of living. "Politics," as I see
the contemporary scene, is a dominant pre-occupation of only a handful of persons — the politicians, the
professional partymen. If the people at large become involved in the heat and clamor of an election campaign, it is
ordinarily because they are unduly provoked or frenetically induced to such involvement by the politicians
themselves. As it is, the great masses of our people do not speak loud enough — and, when they do, only
infrequently — about our government. The effect of the ban on speech would serve only to further chill
constitutionally protected conduct on their part which, instead of being suppressed, should on the contrary be
encouraged.
It is not amiss to observe here that the making of politically oriented speeches and the dissemination of similar
literature, while they may divert the energies of those who make or write them and their audiences, would appear to
me to be among the less pernicious aspects of our national preoccupation with "politics." The more dangerous
aspects of our national preoccupation probably occur in privacy or secrecy and may be beyond the reach of
measures like Section 50-B.
It is argued in defense of the statute, nonetheless, that under the two provisos of Section 50-B, "simple expressions
of opinion and thoughts concerning the election" and expression of "views on current political problems or sues,"
including mentioning the names of candidates for public offices whom one supports, are not prohibited; hence,
freedom of expression is not unconstitutionally abridged by Section 50-B.
This argument is gravely flawed by the assumption that "simple expressions of opinion" and "views on current
political problems" cover the whole reach of the relevant constitutional guarantees. What about the rights of
assembly and lawful association? As to freedom of expression that cannot be confined to the realm of abstract
political discussions. It comprehends expression which advocates action, no less than that which merely presents
an academic viewpoint. Indeed, the value of speech in a democratic society lies, in large measure, in its role as an
instrument of persuasion, of consensual action, and for this reason it must seek to move to action by advocacy, no
less than by mere exposition of views. It is not mere coincidence that the farmers of our Constitution, in protecting
freedom of speech and of the press against legislative abridgment, coupled that freedom with a guarantee of the
right of the people to peaceably assemble and petition the government for the redress of grievances. The right of
peaceful assembly for the redress of grievances would be meaningless and hollow if it authorized merely the public
expression of political views, but not the advocacy of political reforms — even changes in the composition of the
elective officialdom of the administration.
There is another, equally basic, difficulty that vitiates the avowed constitutional utility of the provisos appended to
Section 50-B. Under the first proviso, it "simple expressions of opinion and thoughts concerning the election shall
not be considered as part of an election campaign." From the precise use of the word "simple" may be rationally
drawn an inference that "non-simple" expressions fall within the proscription of election campaigns. But the law
conspicuously fails to lay dawn a standard by which permissible electioneering. How simple is "simple"? In the
absence of such a standard, every speaker or writer wishing to make publicly known his views concerning the
election and his preferences among the candidates, must speak at his own peril. He could carefully choose his
word's with the intention of remaining within the area of speech left permissible by Section 50-B. But, in the nature of
things, what and who can provide him assurance that his words, "simple expressions of opinion and thoughts
concerning the election" as they may be, will not be understood by his audience or at least by some of them, or by
the prosecuting officers of the Government, or by the courts even, as a "speech" or "commentary" "for or against the
election of ... a candidate for public office," or at least an indirect solicitation of votes?
It is pertinent to advert to the Texas statute involved in Thomas v. Collins, supra, as illustrative of the vice of
vagueness that we find in Section 50-B. The Texas statute required all labor union organizers to first obtain
organizer's cards from the Secretary of State "before soliciting any members for his organization," and authorized
the courts to compel compliance by the issuance of court processes. Thomas, the president of a nationwide labor
union, came to Houston to address a mass meeting of employees of an oil plant which was undergoing unionization;
but six hours before he was scheduled to speak, he was served with a court order restraining him from soliciting
members for the local union which was affiliated with his organization, without first obtaining an organizer's card. For
disobeying the restraining order, he was found in contempt of court. The U.S. Supreme Court, reversing his
conviction, found the registration requirement an invalid restraint upon free speech and free assembly, thus:
That there was restriction upon Thomas' right to speak and the rights of the workers to hear what he had to
say, there can be no doubt. The threat of the restraining order, backed by the power of contempt, and of
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arrest for crime, hung over every word. A speaker in such circumstance could avoid the words "solicit,"
"invite," "join". It would be impossible to avoid the idea. The statute requires no specific formula. It is not
contended that only the use of the word "solicit" would violate the prohibition. Without such a limitation, the
statute forbids any language which conveys, or reasonably could be found to convey, the meaning of
invitation. That Thomas chose to meet, the issue squarely, not to hide in ambiguous phrasing, does not
counteract this fact. General words create different and often particular impressions on different minds. No
speaker, however careful, can convey exactly his meaning, or the same meaning, to the different members of
an audience. How one might "land unionism," as the State and the State Supreme Court concedes Thomas
was free to do, yet in these circumstances not imply an invitation, is hard to conceive. This is the nub of the
case, which the State fails to meet because it cannot do so, Workingmen to do lack capacity for making
rational connections. They would understand, or some would, that the president of U.A.W. and vice president
of C.I.O. addressing an organization meeting, was not urging merely, a philosophy attachment to abstract
principles of unionism, disconnected from the business immediately at hand. The feat would be incredible for
a national leader, addressing such a meeting, lauding unions and their principles, urging adherence to union
philosophy, not also and thereby to suggest attachment to the union by becoming a member.
Furthermore, whether words intended and designed to fall short of invitation would miss that mark is a
question, of intent and of effect. No speaker, in such circumstance safely could assume that anything lie might
say upon the general subject would not be understood by as an invitation. In short, the supposedly clear-cut
distinction between discussion and laudation, general advocacy, and solicitation puts the speaker in these
circumstance wholly at the mercy of the varied understanding of his hearers and consequently of whatever
inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty
whatever may be said. It compels the speaker to hedge and trim. He must take care in every word to create
no impression that he means, in advocating unionism's most central principle, namely, that workingmen
should unite for collective bargaining, to urge those present to do so. The vice is not merely that invitation, in
the circumstances shown here, is speech. It is also that its prohibition forbids or restrains discussion which is
not or may not be invitation. The sharp line cannot be drawn surely or securely. The effort to observe it could
not be free speech, free press, or free assembly, in any sense of free advocacy of principle or cause. The
restriction's effect, as applied, in a very practical sense was to prohibit Thomas not only to solicit members
and memberships but also to speak in advocacy of the cause or trade unionism in Texas, without having first
procured the card. Thomas knew this and faced the alternatives it presented. When served with the order he
had three choices: (1) to stand on his right and speak freely; (2) to quit, refusing entirety to speak; (3) to trim,
and even thus to risk the penalty. He chose the first alternative. We think he was within his lights in doing
so.36
The realism of the approach and reasoning employed in Thomas v. Collins commends itself; I think this kind of
realism should be applied to the task of appraising Section 50-B. Section 50-B forbids "directly or indirectly soliciting
votes and/or undertaking any campaign or propaganda for or against any candidate or party," including any
language "for or against the election of any party or candidate for public office," except within the specified periods
preceding the election.
If a minority political party were to hold a mass rally at Plaza Miranda within the prohibited period of an election year,
for the purpose of publicly expressing their criticism of the party in power, it is unthinkable that the public speeches
delivered during the occasion will not understood, by many if not by all, as a direct or an indirect campaign or
propaganda against a political party, as well as a direct or an indirect solicitation of votes. The audience will certainly
understand the occasion, not as a forum for indulging in criticism for criticism's sake, nor as a "simple" discussion of
political, philosophy, but as an invitation to unseat the party in power at the next election. If, upon the other hand, the
minority party should control one or both Houses of Congress and, for selfish partisan motives, oppose all or a major
portion of the significant measures sponsored by the Administration, regardless of their merits, for the purpose of
obtaining political partisan advantage, the Chief executive would, during the restricted period, find himself hampered
in vigorously placing blame squarely on such minority party. The Administration (and this includes the Chief
Executive himself) would be hard put to appeal to public opinion to exert pressure on the legislature to gain support
for what it may honestly believe to be constructive measures sorely needed to promote the country's progress. The
right of any party or politician to appeal to public opinion cannot be assailed; yet, when would such an appeal, in
which the opposition may have to be several criticized not constitute a violation of Section 50-B? Actual, pre-war and
postwar experience has shown that in a number of instances, the Chief Executive and leaders of his administration
had to mobilize public opinion (largely expressed through the press) to frustrate what they regarded as a calculated
scheme the opposition party of unreasonably interposing obstacles to a major part of essential legislation. It would
indeed be most difficult to determine with exactitude what utterances of the Administration leaders, including the
Chief Executive himself, would or would not constitute propaganda "for or against a political party."
Under these circumstances, I find the contraposition in Section 50-B between "expressions of opinion," on the one
hand, and "solicitation" and "campaign or propaganda," on the other, as too uncertain and shifting a line of
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distinction to be of any practical utility either to the citizen or official who must speak at his own peril or to the
prosecutors and the courts who must enforce and apply the distinction.
Paragraph (f) of Section 50-B is tautological and question-begging. It defines "election campaign" as "giving,
soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." Insofar, therefore,
as the phrase "election campaign purposes" in paragraph (f) depends for its meaning on the preceding paragraphs
(a), (b), (c), (d) and(e), paragraph (f) likewise suffers from constitutional infirmity. Upon the other hand, if the
meaning of paragraph (f) be that the act of soliciting, giving or receiving contributions for the purpose of advancing
the candidacy of a person or party is "campaigning," then it is just as must a curtailment of the freedom of thought
that the Constitution vouchsafes to every citizen.
The foregoing disquisition could be compressed into the compelling perspective of this simple admonition: that
"speech concerning public affairs is more than self-expression; it is the essence of self-government." 37
In sum and substance, it is my considered view that Section 50-B of the Revised Election Code constitutes an
unconstitutional abridgment of the freedoms of speech, of the press, of peaceful assembly, and of lawful
association.
I vote for its total excision from the statute books.
Dizon, Zaldivar and Capistrano, JJ., concur.
BARREDO, J., concurring and dissenting:
I concur in the resulting dismissal of this case, but I candidate give my assent to so much of the opinion, brilliantly
written for the Court by Mr. Justice Fernando, as would give the imprimatur of constitutionality to any portion of
Section 50-B of the statute before Us. Hereunder are my humble but sincere observations.
I am of the firms conviction that this case should be dismissed. In fact, it is not clear to me why the petition herein
was ever given due course at all No matter how I scan its allegations, I cannot find anything in them more than a
petition for relief which is definitely outside the original jurisdiction of this Court. Petitioners themselves have
expressly brought it as a petition for relief; it is the majority that has decided to pull the chestnuts out of the fire by
holding that it should be "treated by this Court as one of prohibition in view of the seriousness and the urgency of
the constitutional issue raised." Frankly I consider this relaxation rather uncalled for; it could border on over
eagerness on the part of the Supreme Court, which is not only taboo in constitutional cases but also certainly not
befitting the role of this Tribunal in the tripartite scheme of government We have in this Republic of ours. I am afraid
the majority is unnecessarily opening wide the gate for a flood of cases hardly worthy of our attention, because the
parties concerned in many cases that will come to Us may not see as clearly as We do the real reasons of public
interest which will move Us when We choose in the future to either entertain or refuse to take cognizance, of cases
of constitutionality. Withal, We cannot entirely escape the suspicion that We discriminate.
Since after all, the majority admits that "When We act in these matters, We do not do so on the assumption that to
Us is granted the requisite knowledge to set matters right, but by virtue of the responsibility We cannot escape
under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of
liberty, when our competence is appropriately invoked", (underscoring mine) and, further, no one can deny that it is
now firmly established that among the indispensable requirements before this Court can take up constitutional
question is that We can do it only when it, involves a real and genuine situation causing direct substantial injury to
specific persons, as contradistinguished from mere speculative fears of possible general hardship or mere
inconvenience, I feel it would be much safer for Us, and our position would be more in word with the rule of law, if
We adhered strictly to the above requirement and threw out cases of the nature of the present one, if only out of the
traditional respect this Tribunal owes the two other coordinate and co-equal departments of our government. In the
petition at bar, there are no allegations of specific acts of the respondent Commission on Elections or even only
threatened to be committed by it, pursuant to the challenged legislation, which they claim impairs, impedes, or
negates any rights of theirs considered to be constitutionally protected against such impairment, impeding or
negation. It is very clear to me that in this case, our jurisdiction has not been properly invoked. Considering how
multifaceted the law in question is, one is completely at a loss as to how petitioner request for a blanket prohibition
and injunction can be considered, in the light of existing principles that strictly limit our power to take cognizance of
constitutional cases only to those that can pass the test I have mentioned above.
What is more, I regret to have to say that what the majority is doing by taking further cognizance of and deciding this
case is to brush aside the stark reality that the interest in this case of petitioners Cabigao and Gonzales, the first, as
candidate, and the second, as his leader, related only to the elections of 1967 wherein, in fact, Cabigao was elected
Vice-Mayor of Manila. Accordingly, this case has already become entirely academic even as a prohibition, because
neither Cabigao nor his leader, Gonzales, can conceivably have any further imaginable interest in these
proceedings. How can we proceed then, when petitioners' interest no longer exists and whatever decision We may
make will no longer affect any situation involving said petitioners. Clearly to me, what the majority has done is to
motu proprio convert the action of petitioners into a taxpayer's suit, which may not be proper because there no
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specific expenditure of public funds involved here. Besides, if petitioners have not come with a supplemental petition
still complaining, why are We going to assume that they are still complaining or, for that matter, that there are other
persons who are minded to complain, such that We have to give or deny to them here and now the reason to do so?
Again, I say, the Court seems to be trying to bite more than it can chew, since cases of this nature 1 will surely come
in great numbers and We will have to accommodate them all, otherwise the exercise of our discretion in rejecting
any of them can be questioned and may at times be really questionable. My basic principle is that the rule of law
avoids creating areas of discretionary powers, and the fact that it is the Supreme Court that exercises the discretion
does not make it tolerable in any degree, for such an eventuality can be worse because no other authority can
check Us and the people would be helpless, since We cannot be changed, unlike the President and the Members of
Congress who can, in effect, be recalled in the elections. Of course, I have faith in the individual and collective
wisdom and integrity of each and every one of my fellow members of this Court, but I still prefer that We exercise
discretion only when it is clearly granted to Us, rather than for Us to create by our own fiat the basis for its exercise.
The other question assailing my mind now, is this: Is there any precedent, whether here or in any other jurisdiction
where the Supreme Court has the power to declare legislative or executive acts unconstitutional, wherein any
supreme court had insisted on deciding grave constitutional questions after the case had become completely moot
and academic because the interest of the actors alleged in their pleading had ceased to exist? I don't believe there
has been any, which is as it should be, because if this Court and even inferior court dismiss ordinary cases which
have become moot and academic, with much more reason should such action be taken, in cases wherein the
unconstitutionality of a law or executive order is raised, precisely for the reasons of principle already stated and fully
discussed in other constitutional cases so well known that they need not be cited here anymore.
It is for these considerations that I join the majority in dismissing this case. And I want to acknowledge that I am
heartened in any stand by the fact that in the deliberations, at least, Mr. Justice Makalintal expressed similar views
as mine, so much so that, in his particular case, he did not even care to discuss the constitutional questions herein
invoIved precisely because they are not appropriately before this Court. 1a On the other hand, if the majority's
position is correct that this Court may properly consider this case as one of prohibition and that it should be decided
despite its having become clearly academic, I would definitely cast my vote with Mr. Justice Castro to declare
unconstitutional Section 50-B of the legislative enactment in question, Republic Act 4880, more popularly known as
the Tañada-Singson Law. Unlike him, however, I shall not indulge in a complete discussion of my stand on the
constitutional questions herein involved, since the opportunity to voice fully my views will come anyway when the
proper case is filed with Us. It is only because some members of the Court feel that we should make known what
are, more or less, our personal opinions, so that the parties concerned may somehow be guided in what they
propose to do or are doing in relation to the coming election, that I shall state somehow my fundamental
observations, without prejudice to their needed enlargement if and when the appropriate opportunity comes. Indeed,
in my humble view, what the Court is rendering here is in the nature of an advisory opinion and I am sure all the
members of the Court will agree with me that in doing this we are departing from the invariable posture this Court
has always taken heretofore. In other words, we are just advancing now, individually and collectively, what our votes
and judgment will be should an appropriate case come, unless, of course, as some of our colleagues have wisely
observed in other cases where I have made similar observations, We change our mind after hearing the real parties
in interest.
Coming now to the constitutional problems posed by the pleadings, I have these to say, for the time being:
1. The first specific act defined by the statute in question as "election campaign" or "partisan political activity"
proscribed by it within the stipulated limited period of one hundred twenty days prior to an election at large and
ninety days in the case of any other election is to "form(ing) organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against
a party or candidate." No law more effective, if less disguised, could have been conceived to render practically
impossible the organization of new political parties in this country. If for this reason alone, I consider this provision to
be deserving of the severest condemnation as an unparalleled assault on the most sacred and fundamental political
rights of our citizenry. In the light of the recent political experience of the strong of heart and idealists amongst us,
this measure appears to me as a perfect or, at least, a near-perfect scheme for the perpetuation of the status quo
and the entrenchment of the presently existing political parties, particularly, the two major ones, whether or not we
share the cynical reference to them by the discerning as nothing but twin peas in the same pod. This is not to say
that such was what motivated its authors, particularly Senator Tanada, for whom I have always had the highest
regard for his never-questioned sincerity of purpose, patriotism and libertarian principles, which opinion of mine is
undoubtedly shared by all the member of this Court. I must insist, however, that such is what appears to me to be
unmistakably the evident effect of the prohibition under discussion it is most probable that in its passion to remedy
as early as possible the evils it feels exist, Congress has overlooked unwittingly some of the possible implications of
this particular measure.
It is one thing to prohibit a political party from actively campaigning outside a certain period of time and it is entirely
another thing to prohibit citizens who are not contented with the existing political parties to organize, outside the
same period, any new political party which they feel will better serve the public weal. 1b Before it is contended that
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this provision does allow the organization of new political parties within the abovementioned periods of one hundred
twenty and ninety days preceding each respective election referred to, I hasten to add that the said periods are so
obviously insufficient that to some it would appear as if the reference to such brief periods of free organization in the
provision was just inserted into it to camouflage its real but unmentionable intentions and/or to blunt any challenge
of unconstitutionality.
All our people have been witnesses to events of contemporary history which have clearly demonstrated the futility of
organizing a new political party or even just a front or alliance within such a short time. To name the gallant national
figures who have met frustration in such endeavor even with much more time at their disposal is to prove that the
task is simply next to impossible, no matter if it were undertaken by men of the best reputation in integrity and
nobility of ideals. It is surely of common knowledge that the work of organization alone of a party, not to speak of the
actual participation and influence such party is intended to effectuate in the ensuing election, can hardly be
accomplished, within the four months provided by the statute, with sufficient success to be of any consequence,
specially, on a national level, which is what is needed most, because while local issues seem to arouse more
interest among the electors, national issues have a profound effect on the lives and liberties of all the people. It must
be borne in mind, in this connection, that our country is made up of more than 7,000 islands scattered throughout
the length and breadth of the archipelago. Those who have taken part in one way or another in an electoral
campaign of national dimension know only too well that one can hardly cover a majority of these islands, not to
speak of all of them, within such an abbreviated period.
Moreover, in the light of contemporary trends of political thinking and action, very much more than the present
condition of things about which there is, to be sure, so much hypocritical hue and cry, particularly, among those
whom the present-day Robin Hoods, in and out of the government have not attended to, to engender a general
feeling of dissatisfaction and need for change in such widespread proportions as to readily galvanize enough
elements to rise in peaceful revolution against the existing political parties and bring about the formation within the
short span of four months of a new political party of adequate or at least appreciable strength and effectiveness in
the national arena. Even the obviously sincere efforts of the undaunted who keep on trying their luck, pitted against
the marked complacency and indifference of the present and passing generations, if not their incomprehensible
inability to overcome the inertia that seems to be holding them from pushing the scattered protests here and there,
more or less valid and urgent, to their logical conclusion, generate but very little hope that the expected reaction can
materialize during our time.
Needless to say, no matter if one looks at the current scenes thru the most rosy spectacles, a ban against the
formation of new political parties is definitely out of the question. A total expressed ban is, of Course, repugnant to
any decent sense of freedom. Indeed, a disguised even if only partial, is even more intolerable in this country that
does not pretend to have but does truly have democratic bearings deeply rooted in the history of centuries of heroic
uprisings which logically culminated in the first successful revolution of a small nation against despotism and
colonialism in this part of the world.
It is to be conceded that the adequacy or inadequacy of the means adopted by Congress in the pursuit of a
legislative recognized objective is generally irrelevant to the courts in the determination of the constitutionality of a
congressional action. I must be quick to add, however, that this rule can be salutary only if the adequacy is
controversial, but when the inadequacy of the means adopted is palpable and can reasonably be assumed to be
known or ought to be known generally by the people, such that it is a foregone conclusion that what is left licit by the
law can be nothing more than futile gestures of empty uselessness, I have no doubt that the judicial can rightfully
expose the legislative act for what it is — an odious infraction of the charter of our liberties. Other the principle of
respect for coordinate and co-equal authority can be a tyranny forbidding the courts from striking down what is not
constitutionally permissible. I am ready to agree that the judiciary should give allowances for errors of appreciation
and evaluation of the circumstances causing the passage of a law, but if it is true, as it is indeed true, that the
Supreme Court is the guardian next only to the people themselves of the integrity of the Constitution and the rights
and liberties it embodies and sanctifies, I would consider it an unpardonable abdication of our peculiar
constitutionally-destined role, if We closed Our eyes and folded Our arms when a more or less complete ban against
the organization of new political parties in this countries is being attempted to be passed before Us as a legitimate
exercise of police power.
At this point, it is best to make it clear that the particular constitutional precept with which the statutory provision in
question is inconsistent and to which therefore, it must yield is Paragraph 6, Section 1, Article III of the Bill of Rights
of the Constitution which ordains:
The right to form associations or societies for purposes not contrary to law shall not be abridged.
Incidentally, the indigenous cast of this provision is seemingly emphasized by Mr. Justice Fernando by his reference
to its origin in the Malolos Constitution of 1896. 2 Indeed, there it was provided:
Article 19
No Filipino in the full enjoyment of his civil and political rights shall be hindered in the free exercise thereof.
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Article 20
Neither shall any Filipino, be deprived of:
1. ...
2. The right of joining any associations for all objects of human life which may not be contrary to public moral;
...
It is to be observed that in the light of its text and origin, the statutory provision under scrutiny forbids the
abridgement of the right of inhabitants of this country to form associations and societies of all kinds, including and
most of all, for the citizens, political parties, the sole exception being when the association or society is formed for
purposes contrary to law. It is unquestionable that the formation of an ordinary political party cannot be for purposes
contrary to law. On the contrary, the organization of political parties not dedicated to the violent overthrow of the
government is an indispensable concomitant of any truly democratic government. Partyless governments are
travesties of the genuine concept of democracy. The immediate repulsion that fated straws in the wind thrown in
favor of such an anachronistic proposal here in the Philippines is still fresh in the memory of many of our
countrymen. Our people are firmly set on the inseparability of political parties from a democratic way of life. To ban
political parties here is to kill democracy itself.
And now comes this legislation banning the formation of political parties except within certain limited periods of time,
so short, as I have already demonstrated, that in effect, the ban is a total one. Can them be a more flagrant violation
of the constitutional guarantee of freedom of association? Besides, since it is undeniable that the evils Congress
seeks to remedy cannot be said to have all been brought about by the formation of new political parties, but rather
by the anomalous, irregular, corrupt and illegal practices of the existing political parties, why does the legislature
have to direct its wrath against new political parties, which, for all we know, can yet be the ones that will produce the
much needed innovation in the political thinking and actions of our electorate which will precisely do away with the
defects of the present political system? As I see it, therefore, the remedy embodied in the disputed provision is so
clearly misdirected that it cannot, under any concept of constitutional law, be tolerated and considered
constitutionally flawless, on the theory that it is just a case of error in the choice of means, on the part of Congress,
to attain the objective it has in mind, hence beyond the pale of judicial review.
To be sure, the phrase "for purposes not contrary to law" in the constitutional provision above quoted did not pass
unnoticed during the debates in the constitutional convention. To some delegates, it appeared that said phrase
renders nugatory the freedom it guarantees, for the simple reason that with said phrase the lawmakers are
practically given the attribute to determine what specific associations may be allowed or not allowed, by the simple
expedient of outlawing their purposes — prophetic vision, indeed! No less than Delegate Jose P. Laurel, who later
became an honored member of this Court, had to explain that "the phrase was inserted just to show that the right of
association guaranteed in the Constitution was subject to the dominating police power of the state." (Aruego, id.)
To my mind, this explanation of Delegate Laurel renders the prohibition in the law in question more vulnerable to the
charge of unconstitutionality. It is to me simply inconceivable that the state can ever forbid the formation of political
parties in the assertion of its "dominating police power". I reiterate that political parties are an absolute necessity in a
democracy like ours. As a matter of fact, I dare say police power would be inexistent unless the political parties that
give life to the government which exercises police power are allowed to exist. That is not to say that political parties
are above the state. All that I mean is that without political parties, a democratic state cannot exist; what we will have
instead is a police state.
No more than momentary reflection is needed to realize that much as our Constitution projects, it would appear, the
desirability of the two-party system of government. there is nothing in it that even remotely suggests that the present
political parties are the ones precisely that should be perpetuated to the prejudice of any other. Less reflection is
needed for one to be thoroughly convinced that to prohibit the organization of any new political party is but a short
step away from implanting here the totalitarian practice of a one-ticket election which We all abhor. Absolute
freedom of choice of the parties and men by whom we shall be governed, even if only among varying evils, is of the
very essence in the concept of democracy consecrated in the fundamental law of our land.
So much, for the time being, for the prohibition against new political parties. Let us go now to the other freedoms
unconstitutionally impinged by the legislation at bar.
2. If I vehemently decry the attempt in this law to curtail our freedom to organize political parties whenever it may
please us to do so for being not only violative of the letter of the constitution but contrary also to the democratic
traditions of our people and likewise a patent disregard of the very essence of a democratic form of government, I
cannot have less repugnance and abhorence for the further attempt in this law to do away with the freedoms of
speech and the press and peaceful assembly. Lest I be misunderstood, however, as being an ultra-activist, it should
be clear at the outset that in holding that the above prohibitions contained in the statute in question are violative of
the Constitution, my stand is limited to my fundamental conviction that the freedoms of speech, of the press and of
peaceful assembly and redress of grievances are absolute when they are being exercised in relation to our right to
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choose the men and women by whom we shall be governed. I hold neither candle nor brief for licentious speech and
press, but I recognize no power that can pre-censor much less forbid any speech or writing, and peaceful assembly
and petition for the redress of grievances, the purpose of which is no more than to express one's belief regarding
the qualification or lack of them, the merits and the demerits of persons who are candidates for public office or of
political parties vying for power, as well as the principles and programs of government and public service they
advocate, to the end that when voting time comes the right of suffrage may be intelligently and knowingly, even if not
always wisely, exercised. If, in the process, there should be in any manner any baseless attacks on the character
and private life of any candidate or party or some form of inciting to public disorder or sedition, the offender can be
rightfully haled to court for libel or the violation of the penal provisions on public order and national security, as the
facts may warrant, but never can anyone, much less the state, have the power to priorly forbid him to say his piece.
Paragraphs (b), (c), (d) and (e) of Section 1 of the challenged legislation cover practically a common subject matter.
They all define as "election campaign" or is "partisan political activity" forbidden to be exercised within the
aforementioned periods the following liberties:
The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) ...
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purposes of soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking propaganda for or against any candidate or party;
Naturally, it is my uncompromising view, that by these provisions the act directly violates the plain injunction
provision of the Constitution to the effect that:
No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably
to assemble and petition the Government for redress of grievances. (Par. [8], Sec. 1, Art. III of the
Constitution)
My colleagues are impressed by the objectives of the legislative measure before Us. Mr. Justice Fernando voices
the feeling of some of them in the opening paragraph of the Court's opinion thus: "A statute designed to maintain the
purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged
political campaigns, bringing in their wake serious evils not the least of which is the ever-increasing cost of seeking
public office, is challenged on constitutional grounds." Mr. Justice Castro proclaims said objectives as practically
self-evident and heartily endorses, by quoting in toto, the purposes avowed in the explanatory note of Senate Bill
209 which finally became the subject statute. Mr. Justice Sanchez is a little more factual as he opines:
State authority here manifests itself in legislation intended as an answer to the strong public sentiment that
politics is growing into a way of life, that political campaigns are becoming longer and more bitter. It is a result
of a legislative appraisal that protracted election campaign is the root of undesirable conditions. Bitter rivalries
precipitate violence and deaths. Huge expenditures of funds give deserving but poor candidates slim chances
of winning. They constitute an inducement to graft to winning candidates already in office in order to recoup
campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate. Official
duties and affairs of state are neglected by incumbent officials desiring to run for reelection. The life and
health of candidates and their followers are endangered. People's energies are dissipated in political
bickerings and long drawn-out campaigns. (2nd par., p. 4, concurring & dissenting opinion of Mr. Justice
Sanchez) .
I hope I will be forgiven for having to view things differently. Indeed, I would like to ask the optimists in and out of
Congress to silence the trumpets they have sounded to herald the approval of this law. I agree that generally no
court and no member of this Tribunal has the right to quarrel with Congress in its choice of means to combat the
evils in a legislatively recognized situation, but are We, as the Supreme Court, to seal our lips even when we can
plainly see that a congressional measure purported allegedly to do away with certain evils does, on the contrary,
promote those very same evils it is supposed to remedy, on top of impinging on our sacred constitutional freedoms,
and at that, with the aggravating element of giving undue advantage to the incumbents in office and to the existing
political parties?
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A closer look at the way the prohibitions contained in the section of the law in dispute will work will reveal how
detrimental they are to the basic public interest, nay, to the right of suffrage itself. I like to reiterate over and over, for
it seems this is the fundamental point others miss, that genuine democracy thrives only where the power and right of
the people to elect the men to whom they would entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them." (Section 1, Article II) Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it can be governed
only by officials whom they themselves have placed in office by their votes. And it is on this cornerstone that I hold it
to be self-evident that when the freedoms of speech, press and peaceful assembly and redress of grievances are
being exercised in relation to suffrage or as a means to enjoy the inalienable right of the qualified citizen to vote,
they are absolute and timeless. If our democracy and republicanism are to be worthwhile, the conduct of public
affairs by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable,
everyday and at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he can rightfully gain
the confidence of the people. I have no patience for those who would regard public dissection of the establishment
as an attribute to be indulged by the people only at certain periods of time. I consider the freedoms of speech, press
and peaceful assembly and redress of grievances, when exercised in the name of suffrage, as the very means by
which the right itself to vote can only be properly enjoyed. It stands to reason therefore, that suffrage itself would be
next to useless if the liberties cannot be untrammelled whether as to degree or time.
It must be noted that the proscription contained in this law is against the use altogether of the freedom of speech,
press and peaceful assembly in relation to the candidacy of a person for public office, not against the use of such
freedoms in order to damage the character of any particular person or to endanger the security of the state. No
matter how I view, it I cannot see how using said freedoms in the interest of someone's candidacy beyond the
prescribed abbreviated period can do any harm to the common weal. I regret I came too late to this Court to be able
to hear what I have been made to understand was Senator Tañadas very informative arguments. With all due
respect to what might have been showing by the distinguished Senator, I personally feel the present measure
premature and misdirected. The incidence and reincidence of bloody occurences directly or indirectly caused by
electoral rivalries cannot be denied, but unless shown convincing and reliable statistical data, I have a strong feeling
that those who entertain these apprehensions are influenced by unwarranted generalizations of isolated cases. Not
even the residents of such allegedly troublous areas as Ilocos Sur, the Lanao provinces, Cavite, Cebu and Nueva
Vizcaya will admit that the situation in those places is so beyond control as to necessitate, at any time, the complete
suppression of expression of views, oral and in writing for or against person handling public affairs or; aspiring to do
so.
As the above-quoted provisions stand, every imaginable form of political activity, whether done individually or
suprisingly by a person, or collectively, by a number of persons, is covered by their prohibitions. Under the said
provisions, during twenty months in every two years, there are only three things Filipinos can do in relation to the
conduct of public affairs by those they have voted into power and the relative capacity or incapacity of others to take
their places, namely: (1) simple expressions of opinion and thought concerning the election; (2) expression of views
on current political problems and issues; and (3) mention the candidates whom one supports.
If these exceptions in the statute are not absurd, little comfort can be found beneath their umbrage. As to the first
exception, Mr. Justice Castro very aptly asks, how simple is simple? I would like to add to the impeccable structures
of my esteemed colleague, if I may be permitted, the humble observation that the phrase "concerning the election"
is to me too equivocal, if it is not incomprehensible, to be part of a penal statute such as this law is, with the heavy
penalty of imprisonment from one year to five years, disqualification to hold public office for not less than one year
nor more than nine years and deprivation of the right to vote for a like period that it imposes. To express an opinion
as regards elections in general is something that is indubitably outside the area of any possible legislative
proscription and to do so in relation to a forthcoming specific election without any discernible hue of an appeal for
support for one protagonist or another is to say nothing worthwile, that is, if it is possible to conceive of anyone
referring to an actual impending election with complete impartiality. On the other hand, to express one's views
regarding an actual election with mention of the qualifications or disqualifications of the candidates and the political
parties involved, cannot escape the coverage of the prohibition in question.
As to the second exception, what views on current political problems and issues can be expressed without
necessarily carrying with them undercurrents of conformity or non-conformity with the present state of things and,
directly or indirectly, with the ways of the incumbents in office? And as to the last exception, who can be these
candidates whose names would possibly be mentioned by any sympathizer, when candidates are not allowed by
this law to be nominated earlier than practically the same period as the prohibitions against campaigns? .
I can well understand the predicament of Congress. It has attempted to define the indefinable. Any intent to
circumscribe the areas of basic liberties cannot end but in absurdity. To insist on drawing artificial boundaries for
their enjoyment must necessarily result in confusion and consequent protracted controversy and debate which can
only give occasion for the inordinate exercise of power for power's sake. A definition that comprehends substantially
what should not be included is no definition at all. The right of our people to speak and write freely at all times about
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our government and those who govern us, only because we have elected them, cannot be subjected to any degree
of limitation without virtual loss of the right itself. The moment it become impossible for the inhabitants of this country
to express approval or disapproval of the acts of the government and its officials without imperilling their personal
liberty, their right to hold office and to vote, and such appears to be the natural consequence of the injunctions of
this law, we cannot be far away from the day when our Constitution will be hardly worth the paper on which it is
written.
I find it difficult to dissociate the prohibition in this law from the obvious advantages they give to those presently
holding office by election and to the existing political parties.
Under the definition of the terms "candidate" and "election campaign or "partisan political activity" contained in the
section we are assaying it is clear that what the statute contemplates are candidates for public offices. Accordingly,
candidates for nomination by their respective political parties do not appear to be comprehended within the
prohibition; so, as long as a person campaigns, even publicly, only for nomination by his party, he is free to expose
himself in any way and to correspondingly criticize and denounce all his rivals. The fact that the law permits in
Section 50-A the holding of political conventions and the nominations of official candidates one month before the
start of the period of the prohibitions in Section 50-B, lends strength to this conclusion. 3 .
Such being the case, the undue advantage of the aspirants for nomination within the existing political parties over
independent candidates becomes evident. The legal period fixed by the law will start in July, and yet, we have long
been witnesses already to all sorts of campaigns, complete to the last detail - what with the newspaper and radio
and television campaign matters being published and broadcast as widely as possible, the campaigners armed or
endowed with either experience, money or pulchritude or what may pass for it, welcoming wave after wave of party
delegates arriving at the airports and the piers, the billeting of these delegates in luxurious and costly hotels, at the
cost of the candidates and with pocket money to boot, the sumptuous banquets and parties, etc., etc. And to top it
all, a well publicized marathon "consensus" which has reportedly cost the candidates millions of pesos! In other
words, in the actual operation of this law, it is only the independent candidate, the candidate who does not belong to
the existing political parties and who is prohibited to organize a new one, who must keep his ambitions and
aspirations all to himself and say nary a word, lest he jeopardize his liberty and his rights to hold office and to vote,
while those who belong to the said parties merrily go about freely gaining as much exposure as possible before the
public. I need not refer to the tremendous advantages that accrue to the party in power and to all incumbents,
irrespective of political party color, from the operation of this law. They should be obvious to any observer of current
events.
Under these circumstances, can it be successfully maintained that such disparity of opportunities for those who
legitimately want to offer their services to the people by getting elected to public office, resulting from a
congressional act approved by those who would benefit from it, is constitutionally flawless? When it is considered
that this law impinges on the freedoms of speech, press, assembly and redress of grievances and that its only
justification is that it is intended to remedy existing evil practices and undesirable conditions and occurrences related
to the frequency of elections and the extended campaigns in connection therewith, and it is further considered that,
as demonstrated above, this law, in its actual operation impairs and defeats its avowed purposes because, in effect,
it deprives the independent candidates or those who do not belong to the established political parties of equal
opportunity to expose themselves to the public and make their personal qualifications, principles and programs of
public service known to the electorate, to the decided advantage of the incumbents or, at least, those who are
members of the existing political parties, it can be easily seen that the curtailment of freedom involved in this
measure cannot be permitted in the name of police power. I am certain none can agree that resort to police power
may be sanctioned when under the guise of regulating allegedly existing evils, a law is passed that will result in
graver evil than that purported to be avoided. As far as I can understand the commitment of our people to the
principle of democracy and republicanism, we would rather have the bloodshed, corruption and other alleged
irregularities that come with protracted electoral campaigns and partisan political activity, than suffer the continued
mockery of their right to vote by limiting, as this legislation does, their right of choice only to those whom the existing
political parties might care to present as official candidates before them. If this would be all that the right of suffrage
would amount to, the death of Hitler and Mussolini might just as well be considered as the most lamentable
tragedies in the history of freemen and we should welcome with open arms the importation into this country of the
kind of elections held in Russia and Red China.
A few considerations more should make those who believe in the efficacy and constitutionality of this law take a
second hard look at it. Then, they will realize how mistaken they must be. I have said earlier that this act defeats its
own avowed purposes. Well, all that have to be considered for anyone to see my point is that in the matter of
reducing the cost of elections by limiting the period of campaigns, current events have clearly proven that instead of
lessening their expenditures, candidates have spent more than they would have done without such limitation.
Because of the shortness of the period provided for the calling of conventions for the nomination of official
candidates by political parties and the more abbreviated period that the candidate who would be ultimately
nominated and the parties themselves will have to campaign to win in the election, these parties have resorted to
other means of having, at least, even a semi-official candidate, without calling him so. And this, as everybody knows
means money, money and money.
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The truth known to all who have political experience is that no candidate for a position voted at large nationally can
entertain any hopes of winning after a campaign of only four months. It took at least a year for Presidents
Magsaysay, Macapagal and Marcos to win the presidency. None of the senators we have and have had can boast
of having campaigned only for four months. In view of the abbreviated period of campaign fixed in this law,
necessarily the candidates have to redouble their efforts, try to cover more area in less time, see more people every
moment, distribute more propaganda, etc., etc., and all these mean money, more money and more money. In this
set up, so neatly produced by this law, it is regretably evident that the poor candidates have no chance. How can a
poor candidate cover the more than 7,000 islands of our archipelago in four months? If it was impossible to do so
when there was no limitation of the period for campaigns, what chance can such a poor candidate have now? Thus,
it can be seen that this law has not only made candidates spend more than they used to do before, it has effectively
reduced the chances and practically killed the hopes of poor candidates. Under this law, it may truthfully be said that
the right to be elected to a public office is denied by reason of poverty.
My brethren view the problem before Us as one calling for the reconciliation of two values in our chosen way of life -
individual freedom, on the one hand, and public welfare, on the other. I do not see it that way. To my mind, if the
freedoms of speech, press, peaceful assembly and redress of grievances in regard to the right to vote can be
impinged, if not stifled, by standards and limitations fixed by those who are temporarily in power, I would regard
those freedoms as no freedoms at all, but more concessions of the establishment which can be reduced or enlarged
as its convenience may dictate. Of what use can such kind of freedom be? .
Taking all circumstances into account, it is entirely beyond my comprehension, how anyone could have conceived
the idea of limiting the period of electoral campaigns in this country, when what we need precisely is more intelligent
voting by the greater portion of our people. I do not believe our mass media have reached the degree of efficiency in
the dissemination of information needed to enable the voters to make their choices conscientiously and with
adequate knowledge of the bases of their decisions. I am not convinced that at this stage of our national life we are
already prepared to enjoy the luxury of abbreviated electoral campaigns, unless we are inclined to forever have with
us the areas of political bossism, apparent statistical improbabilities and politico-economic blocs and even politico-
religious control which we have; in varying degrees these days and which will naturally continue as long as our
people are not better informed about the individual worth of the candidates for or against whom they vote. I dare say
that there is enough reason to hold that if mistakes have been committed by our people in the selection of their
elective officials, it is because the information needed to serve as basis for intelligent voting have not fully reached
all segments of the population. Inadequacy of reliable information among the voters, regarding the qualification of
the candidates and the relevant circumstances of the election they are taking part in can be the greatest bane of
popular suffrage.
Modesty aside, it is quite well known that it has been my lot to have handled, alone or with others, some of the most
important political cases in the country since the end of the second world war. To be able to do so, I had to study our
election laws assiduously perhaps as any other Filipino has. From what I have thus learned, I can safely say that the
present laws are reasonably adequate to prevent lavish and excessive expenditures for electoral purposes. The real
cause for regret is the lack of proper implementation of these laws. I dare say that even the courts, not excluding
this Supreme Court, and specially the Electoral Tribunals of the Senate and the House of Representatives have
been rather liberal in interpreting them, so much so, that the unscrupulous have succeeded in practically openly
violating them with a cynical sense of impunity. The recent case of the ouster of Senators Manglapus, Kalaw and
Antonino was a singular one, wherein the spirit of the law triumphed, even as it brought to the fore the necessity of
making more realistic the ceilings of allowable expenditures at the time when the cost of everything has multiplied
several times compared to that when the existing limitations were established. Indeed, these unrealistic limitations,
as to the amounts of expenditures candidates may make, has somehow compelled the corresponding authorities to
overlook or even condone violations of these laws, and somehow also, this attitude has given courage to practically
everybody to pay little heed to the statutory limitations, thus giving cause to the excessive overspending the authors
of the law now in question are seeking to stop or, at least, minimize. I say again, Congress does not have to
sacrifice or even just risk the loss or diminution only of any of our sacred liberties to accomplish such a laudable
objective. All that has to be done, in my considered opinion, is to have more sincerity, mental honesty and firm
determination in the implementation of the limitations fixed in the Election Law, after they have been made more
realistic, and real devotion and integrity in the official's charged with said implementation. If few may agree with me,
I still entertain the trustful feeling that it is not entirely hoping against hope to expect our national leaders to regain
their moral bearings and, in a bold effort to sweep away the darkening clouds of despair that envelope a great many
of our countrymen, with well recognized intellectuals and non-politicians among them, to take active measures to
exert their moral leadership, to the end that our nation may regenerate by revising our people's sense of political
values and thus, as much as possible, put exactly where they belong the vote-buyers the political terrorist, the
opportunists and the unprincipled who have sprung in this era of moral decadence that seem to have come naturally
in the wake of the havoc and devastation resulting from the extension of the area of the last world war to our shores.
If even this hope cannot linger in our hearts, I dread to imagine how the Filipinos who will come after us will enjoy
their lives, when in the exercise of their right of suffrage they would be able to use their freedoms of speech, press,
peaceful assembly and redress of grievances only in measured doses to be administered to them by those in power
in the legislature.
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Frankly, I am not aware of any similar legislation in other democracies of the world. The defenders of the law in
question have not cited any. If perhaps the cases of some countries I hear may be mentioned, I loathe to follow their
example because I hold it is illogical for us to legislate for our people, who have been reared in the principles of
democracy, in the light of what is being done by people who from time immemorial have been disciplined under
more or less dictatorial and totalitarian governments.
Before I close, I like to add, in the interest of truth, that even stripped of the ornaments of foreign wisdom expressed
in embellished language that adorn the opinions of our learned colleagues, Justice Sanchez, Castro and Fernando,
their own views so exquisitely articulated by them in their respective singular styles which have been the object of
admiration and respect by all, are in themselves not only gems of forensic literatures but are also indubitable
evidence of judicial sagacity and learning. I am making it a point to separate their own personal views from their
quotations of alien authorities, because as a matter of national pride and dignity, I would like it known that when it
comes to constitutional matters particularly, civil liberties and the other individual freedoms, the members of this
Tribunal are not without their own native geniuses and individual modes of expression that can stand on their own
worth without any reinforcement from imported wisdom and language.
May I say in closing that, if my above analysis and perspectives, if these views and conclusions of mine regarding
the constitutional questions herein involved are not exactly factual and valid, I would still reiterate them, if only to
serve as a feeble voice of alarm that somehow our basic liberties may be in jeopardy and it is best that we revolve
early to man the outposts and steady our guard, least we awaken one dawn with nothing left to us but repentance,
for having failed to act when we could, amidst the ashes of the freedoms we did not know how to defend and
protect. That eternal, incessant and unyielding vigilance is the price of liberty is still and will ever be true at all times
and in all lands.
Footnotes
1West Education State Board of Education v. Barnette, 319 US 624, 640 (1943).
2Sec. 50-A, Revised Election Code.
3Sec. 50-B, Revised Election Code.
4Sec. 2 of Act 4880 further amends Sec. 133 of the Revised Election Code to include the two new above
sections among the serious election offenses.
5Poindexter v. Greenhow, 114 US 217 (1885) and Terminiello v. City of Chicago, 337 US 1 (1951).
6Chief Justice Concepcion and Justices Reyes, Makalintal, Teehankee and Barredo.
765 Phil. 56, 94 (1937) Cf. Yu Congress Eng v. Trinidad, 47 Phil. 385 (1926), 271 US 500; 70 Law ed., 1059.
8People v. Vera, 65 Phil. 56 (1937). Manila Race Horse Trainers Asso. v. De la Fuente, 88 Phil. 60 (1951);
Bautista v. Mun. Council, 98 Phil. 409 (1956).
9Philconsa v. Mathay, L-25554, Oct. 4, 1966, citing Philconsa v. Gimenez, L-23326, Dec. 18, 1965; Pascual v.
Sec. of Public Works, L-10405, Dec. 29, 1960; Pelaez v. Auditor General, L-23825, Dec. 24, 1965; Iloilo Palay
& Corn Planters Asso. v. Feliciano, L-24022, March 3, 1965. See also Lidasan v. Commission on Elections, L-
28089, Oct. 25, 1967.
10Thomas v. Collins, 323 US 516, 529-530 (1945).
11Ex parte Hawthorne, 96 ALR 572, 580 (1934).
12La Follette v. Kohler, 69 ALR 348, 371. Cf . Nixon v. Herndon, 273 US 536 (1927); Nixon v. Condon, 286,
US 73 (1932); Smith v. Allwright, 321 US 649 (1944).
13 Art. III, Sec. 1(8) Constitution of the Philippines.
14Cf . Thornhill v. Alabama, 310 US 98 (1940). Justice Malcolm identified freedom of expression with the right
to "a full discussion of public affairs." (U.S. v. Bustos 37 Phil. 731, 740 [1918]). Justice Laurel was partial to
the ringing words of John Milton "the liberty to know, to utter, and to argue freely according to conscience,
above all liberties." (Planas v. Gil, 67 Phil. 61, 81 [1939]). Justice Johnson spoke of freedom of expression in
terms of "a full and free discussion of all affairs of public interest." For him then, free speech includes
complete liberty to "comment upon the administration of Government as well as the conduct of public men."
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2/1/24, 7:56 PM G.R. No. L-25246
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-25246 September 12, 1974
BENJAMIN VICTORIANO, plaintiff-appellee,
vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE
WORKERS' UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as the "Iglesia ni
Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958.
As such employee, he was a member of the Elizalde Rope Workers' Union (hereinafter referred to as Union) which
had with the Company a collective bargaining agreement containing a closed shop provision which reads as follows:
Membership in the Union shall be required as a condition of employment for all permanent employees
workers covered by this Agreement.
The collective bargaining agreement expired on March 3, 1964 but was renewed the following day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act No. 3350, the
employer was not precluded "from making an agreement with a labor organization to require as a condition of
employment membership therein, if such labor organization is the representative of the employees." On June 18,
1961, however, Republic Act No. 3350 was enacted, introducing an amendment to — paragraph (4) subsection (a)
of section 4 of Republic Act No. 875, as follows: ... "but such agreement shall not cover members of any religious
sects which prohibit affiliation of their members in any such labor organization".
Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Appellee
presented his resignation to appellant Union in 1962, and when no action was taken thereon, he reiterated his
resignation on September 3, 1974. Thereupon, the Union wrote a formal letter to the Company asking the latter to
separate Appellee from the service in view of the fact that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his counsel that unless the Appellee could achieve a
satisfactory arrangement with the Union, the Company would be constrained to dismiss him from the service. This
prompted Appellee to file an action for injunction, docketed as Civil Case No. 58894 in the Court of First Instance of
Manila to enjoin the Company and the Union from dismissing Appellee.1 In its answer, the Union invoked the "union
security clause" of the collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and
contended that the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d)
and (e).2 Upon the facts agreed upon by the parties during the pre-trial conference, the Court a quo rendered its
decision on August 26, 1965, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope Factory,
Inc. from dismissing the plaintiff from his present employment and sentencing the defendant Elizalde
Rope Workers' Union to pay the plaintiff P500 for attorney's fees and the costs of this action.3
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From this decision, the Union appealed directly to this Court on purely questions of law, assigning the following
errors:
I. That the lower court erred when it did not rule that Republic Act No. 3350 is unconstitutional.
II. That the lower court erred when it sentenced appellant herein to pay plaintiff the sum of P500 as
attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly, that the Act
infringes on the fundamental right to form lawful associations; that "the very phraseology of said Republic Act 3350,
that membership in a labor organization is banned to all those belonging to such religious sect prohibiting affiliation
with any labor organization"4 , "prohibits all the members of a given religious sect from joining any labor union if such
sect prohibits affiliations of their members thereto"5 ; and, consequently, deprives said members of their
constitutional right to form or join lawful associations or organizations guaranteed by the Bill of Rights, and thus
becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the obligation of
contracts in that, while the Union is obliged to comply with its collective bargaining agreement containing a "closed
shop provision," the Act relieves the employer from its reciprocal obligation of cooperating in the maintenance of
union membership as a condition of employment; and that said Act, furthermore, impairs the Union's rights as it
deprives the union of dues from members who, under the Act, are relieved from the obligation to continue as such
members.7
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 Ill, 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.8
Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no religious test shall
be required for the exercise of a civil right," in that the laborer's exercise of his civil right to join associations for
purposes not contrary to law has to be determined under the Act by his affiliation with a religious sect; that
conversely, if a worker has to sever his religious connection with a sect that prohibits membership in a labor
organization in order to be able to join a labor organization, said Act would violate religious freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws" clause of the
Constitution, it being a discriminately legislation, inasmuch as by exempting from the operation of closed shop
agreement the members of the "Iglesia ni Cristo", it has granted said members undue advantages over their fellow
workers, for while the Act exempts them from union obligation and liability, it nevertheless entitles them at the same
time to the enjoyment of all concessions, benefits and other emoluments that the union might secure from the
employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision regarding the promotion
of social justice. 11
Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining agreement cannot
be considered violative of religious freedom, as to call for the amendment introduced by Republic Act No. 3350; 12
and that unless Republic Act No. 3350 is declared unconstitutional, trade unionism in this country would be wiped
out as employers would prefer to hire or employ members of the Iglesia ni Cristo in order to do away with labor
organizations. 13
Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate the right to form
lawful associations, for the right to join associations includes the right not to join or to resign from a labor
organization, if one's conscience does not allow his membership therein, and the Act has given substance to such
right by prohibiting the compulsion of workers to join labor organizations; 14 that said Act does not impair the
obligation of contracts for said law formed part of, and was incorporated into, the terms of the closed shop
agreement; 15 that the Act does not violate the establishment of religion clause or separation of Church and State,
for Congress, in enacting said law, merely accommodated the religious needs of those workers whose religion
prohibits its members from joining labor unions, and balanced the collective rights of organized labor with the
constitutional right of an individual to freely exercise his chosen religion; that the constitutional right to the free
exercise of one's religion has primacy and preference over union security measures which are merely contractual 16
; 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; 17 that said Act, finally, does not violate the social justice policy of
the Constitution, for said Act was enacted precisely to equalize employment opportunities for all citizens in the midst
of the diversities of their religious beliefs." 18
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I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that there are some
thoroughly established principles which must be followed in all cases where questions of constitutionality as obtains
in the instant case are involved. 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. 19
1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such religious sects
that forbid affiliation of their members with labor unions from joining labor unions appears nowhere in the wording of
Republic Act No. 3350; neither can the same be deduced by necessary implication therefrom. It is not surprising,
therefore, that appellant, having thus misread the Act, committed the error of contending that said Act is obnoxious
to the constitutional provision on freedom of association.
Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of Article III of the
Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973, provide that the right to form
associations or societies for purposes not contrary to law shall not be abridged. Section 3 of Republic Act No. 875
provides that employees shall have the right to self-organization and to form, join of assist labor organizations of
their own choosing for the purpose of collective bargaining and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid or protection. What the Constitution and the Industrial Peace Act
recognize and guarantee is the "right" to form or join associations. Notwithstanding the different theories
propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it can be safely
said that whatever theory one subscribes to, a right comprehends at least two broad notions, namely: first, liberty or
freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by
law; and second, power, whereby an employee may, as he pleases, join or refrain from Joining an association. It is,
therefore, the employee who should decide for himself whether he should join or not an association; and should he
choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he
still retains the liberty and the power to leave and cancel his membership with said organization at any time. 20 It is
clear, therefore, that the right to join a union includes the right to abstain from joining any union. 21 Inasmuch as what
both the Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the "right"
to join associations of his choice, it would be absurd to say that the law also imposes, in the same breath, upon the
employee the duty to join associations. The law does not enjoin an employee to sign up with any association.
The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, however,
limited. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a
labor union and an employer have agreed on a closed shop, by virtue of which the employer may employ only
member of the collective bargaining union, and the employees must continue to be members of the union for the
duration of the contract in order to keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its
amendment by Republic Act No. 3350, provides that although it would be an unfair labor practice for an employer "to
discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization" the employer is, however, not precluded "from making an
agreement with a labor organization to require as a condition of employment membership therein, if such labor
organization is the representative of the employees". By virtue, therefore, of a closed shop agreement, before the
enactment of Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or to
keep his employment, he must become a member of the collective bargaining union. Hence, the right of said
employee not to join the labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an exception,
when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such agreement shall not
cover members of any religious sects which prohibit affiliation of their members in any such labor organization".
Republic Act No. 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement
the employees belonging to any religious sects which prohibit affiliation of their members with any labor
organization. What the exception provides, therefore, is that members of said religious sects cannot be compelled or
coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite
of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from
their jobs on the sole ground that they are not members of the collective bargaining union. It is clear, therefore, that
the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it.
It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said
members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious
beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in deference
and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither
does the law prohibit them from joining; and neither may the employer or labor union compel them to join. Republic
Act No. 3350, therefore, does not violate the constitutional provision on freedom of association.
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2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its contract,
specifically, the "union security clause" embodied in its Collective Bargaining Agreement with the Company, by virtue
of which "membership in the union was required as a condition for employment for all permanent employees
workers". This agreement was already in existence at the time Republic Act No. 3350 was enacted on June 18,
1961, and it cannot, therefore, be deemed to have been incorporated into the agreement. But by reason of this
amendment, Appellee, as well as others similarly situated, could no longer be dismissed from his job even if he
should cease to be a member, or disaffiliate from the Union, and the Company could continue employing him
notwithstanding his disaffiliation from the Union. The Act, therefore, introduced a change into the express terms of
the union security clause; the Company was partly absolved by law from the contractual obligation it had with the
Union of employing only Union members in permanent positions, It cannot be denied, therefore, that there was
indeed an impairment of said union security clause.
According to Black, any statute which introduces a change into the express terms of the contract, or its legal
construction, or its validity, or its discharge, or the remedy for its enforcement, impairs the contract. The extent of the
change is not material. It is not a question of degree or manner or cause, but of encroaching in any respect on its
obligation or dispensing with any part of its force. There is an impairment of the contract if either party is absolved by
law from its performance. 22 Impairment has also been predicated on laws which, without destroying contracts,
derogate from substantial contractual rights. 23
It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not absolute and
unqualified. The prohibition is general, affording a broad outline and requiring construction to fill in the details. The
prohibition is not to be read with literal exactness like a mathematical formula, for it prohibits unreasonable
impairment only. 24 In spite of the constitutional prohibition, the State continues to possess authority to safeguard the
vital interests of its people. Legislation appropriate to safeguarding said interests may modify or abrogate contracts
already in effect. 25 For not only are existing laws read into contracts in order to fix the obligations as between the
parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the
legal order. All contracts made with reference to any matter that is subject to regulation under the police power must
be understood as made in reference to the possible exercise of that power. 26 Otherwise, important and valuable
reforms may be precluded by the simple device of entering into contracts for the purpose of doing that which
otherwise may be prohibited. The policy of protecting contracts against impairment presupposes the maintenance of
a government by virtue of which contractual relations are worthwhile a government which retains adequate authority
to secure the peace and good order of society. The contract clause of the Constitution must, therefore, be not only in
harmony with, but also in subordination to, in appropriate instances, the reserved power of the state to safeguard
the vital interests of the people. It follows that not all legislations, which have the effect of impairing a contract, are
obnoxious to the constitutional prohibition as to impairment, and a statute passed in the legitimate exercise of police
power, although it incidentally destroys existing contract rights, must be upheld by the courts. This has special
application to contracts regulating relations between capital and labor which are not merely contractual, and said
labor contracts, for being impressed with public interest, must yield to the common good. 27
In several occasions this Court declared that the prohibition against impairing the obligations of contracts has no
application to statutes relating to public subjects within the domain of the general legislative powers of the state
involving public welfare. 28 Thus, this Court also held that the Blue Sunday Law was not an infringement of the
obligation of a contract that required the employer to furnish work on Sundays to his employees, the law having
been enacted to secure the well-being and happiness of the laboring class, and being, furthermore, a legitimate
exercise of the police power. 29
In order to determine whether legislation unconstitutionally impairs contract obligations, no unchanging yardstick,
applicable at all times and under all circumstances, by which the validity of each statute may be measured or
determined, has been fashioned, but every case must be determined upon its own circumstances. Legislation
impairing the obligation of contracts can be sustained when it is enacted for the promotion of the general good of the
people, and when the means adopted to secure that end are reasonable. Both the end sought and the means
adopted must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony with the
constitutional limitation of that power. 30
What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure freedom of
belief and religion, and to promote the general welfare by preventing discrimination against those members of
religious sects which prohibit their members from joining labor unions, confirming thereby their natural, statutory and
constitutional right to work, the fruits of which work are usually the only means whereby they can maintain their own
life and the life of their dependents. It cannot be gainsaid that said purpose is legitimate.
The questioned Act also provides protection to members of said religious sects against two aggregates of group
strength from which the individual needs protection. The individual employee, at various times in his working life, is
confronted by two aggregates of power — collective labor, directed by a union, and collective capital, directed by
management. The union, an institution developed to organize labor into a collective force and thus protect the
individual employee from the power of collective capital, is, paradoxically, both the champion of employee rights,
and a new source of their frustration. Moreover, when the Union interacts with management, it produces yet a third
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aggregate of group strength from which the individual also needs protection — the collective bargaining relationship.
31
The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House Bill No. 5859,
which later became Republic Act No. 3350, as follows:
It would be unthinkable indeed to refuse employing a person who, on account of his religious beliefs
and convictions, cannot accept membership in a labor organization although he possesses all the
qualifications for the job. This is tantamount to punishing such person for believing in a doctrine he has
a right under the law to believe in. The law would not allow discrimination to flourish to the detriment of
those whose religion discards membership in any labor organization. Likewise, the law would not
commend the deprivation of their right to work and pursue a modest means of livelihood, without in any
manner violating their religious faith and/or belief. 32
It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose — exempting the
members of said religious sects from coverage of union security agreements — is reasonable.
It may not be amiss to point out here that the free exercise of religious profession or belief is superior to contract
rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has
also declared on several occasions that the rights in the First Amendment, which include freedom of religion, enjoy a
preferred position in the constitutional system. 33 Religious freedom, although not unlimited, is a fundamental
personal right and liberty, 34 and has a preferred position in the hierarchy of values. Contractual rights, therefore,
must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger
to the security and welfare of the community that infringement of religious freedom may be justified, and only to the
smallest extent necessary to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union averred that
said Act discriminates in favor of members of said religious sects in violation of Section 1 (7) of Article Ill of the 1935
Constitution, and which is now Section 8 of Article IV of the 1973 Constitution, which provides:
No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof,
and the free exercise and enjoyment of religious profession and worship, without discrimination and
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
The constitutional provision into only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form
of worship, 35 but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the common good. 36 Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is
invalid, even though the burden may be characterized as being only indirect. 37 But if the stage regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals,
the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose
without imposing such burden. 38
In Aglipay v. Ruiz 39 , 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. It has
likewise been held that the statute, in order to withstand the strictures of constitutional prohibition, must have a
secular legislative purpose and a primary effect that neither advances nor inhibits religion. 40 Assessed by these
criteria, Republic Act No. 3350 cannot be said to violate the constitutional inhibition of the "no-establishment" (of
religion) clause of the Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy and eternal.
It was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by
averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work
and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. To help its
citizens to find gainful employment whereby they can make a living to support themselves and their families is a
valid objective of the state. In fact, the state is enjoined, in the 1935 Constitution, to afford protection to labor, and
regulate the relations between labor and capital and industry. 41 More so now in the 1973 Constitution where it is
mandated that "the State shall afford protection to labor, promote full employment and equality in employment,
ensure equal work opportunities regardless of sex, race or creed and regulate the relation between workers and
employers. 42
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
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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 tenets of some or all religions. 43 The free exercise clause of the
Constitution has been interpreted to require that religious exercise be preferentially aided. 44
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional
provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union
security agreements. It was Congress itself that imposed that burden when it enacted the Industrial Peace Act
(Republic Act 875), and, certainly, Congress, if it so deems advisable, could take away the same burden. It is certain
that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with
scrupples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes. 45 In
the instant case, We see no such compelling state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it leaves no right to,
and is silent as to the protection of, labor organizations. The purpose of Republic Act No. 3350 was not to grant
rights to labor unions. The rights of labor unions are amply provided for in Republic Act No. 875 and the new Labor
Code. As to the lamented silence of the Act regarding the rights and protection of labor unions, suffice it to say, first,
that the validity of a statute is determined by its provisions, not by its silence 46 ; and, second, the fact that the law
may work hardship does not render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel persons to join and remain members of a union
to keep their jobs in violation of their religious scrupples, would hurt, rather than help, labor unions, Congress has
seen it fit to exempt religious objectors lest their resistance spread to other workers, for religious objections have
contagious potentialities more than political and philosophic objections.
Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor — union
assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally
obtainable at the expense of religious liberty. 48 A desirable end cannot be promoted by prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition against requiring a
religious test for the exercise of a civil right or a political right, is not well taken. The Act does not require as a
qualification, or condition, for joining any lawful association membership in any particular religion or in any religious
sect; neither does the Act require affiliation with a religious sect that prohibits its members from joining a labor union
as a condition or qualification for withdrawing from a labor union. Joining or withdrawing from a labor union requires
a positive act. Republic Act No. 3350 only exempts members with such religious affiliation from the coverage of
closed shop agreements. So, under this Act, a religious objector is not required to do a positive act — to exercise
the right to join or to resign from the union. He is exempted ipso jure without need of any positive act on his part. A
conscientious religious objector need not perform a positive act or exercise the right of resigning from the labor
union — he is exempted from the coverage of any closed shop agreement that a labor union may have entered into.
How then can there be a religious test required for the exercise of a right when no right need be exercised?
We have said that it was within the police power of the State to enact Republic Act No. 3350, and that its purpose
was legal and in consonance with the Constitution. It is never an illegal evasion of a constitutional provision or
prohibition to accomplish a desired result, which is lawful in itself, by discovering or following a legal way to do it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation, inasmuch as it grants
to the members of certain religious sects undue advantages over other workers, thus violating Section 1 of Article III
of the 1935 Constitution which forbids the denial to any person of the equal protection of the laws. 50
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. 51 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. 52 The very idea of classification
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is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter
of constitutionality. 53 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. 54 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. 55
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. 56 It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. 57 Neither is it necessary that
the classification be made with mathematical nicety. 58 Hence legislative classification may in many cases properly
rest on narrow distinctions, 59 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. Tile classification rests on real or substantial, not merely imaginary or whimsical,
distinctions. There is such real distinction in the beliefs, feelings and sentiments of employees. Employees do not
believe in the same religious faith and different religions differ in their dogmas and cannons. Religious beliefs,
manifestations and practices, though they are found in all places, and in all times, take so many varied forms as to
be almost beyond imagination. There are many views that comprise the broad spectrum of religious beliefs among
the people. There are diverse manners in which beliefs, equally paramount in the lives of their possessors, may be
articulated. Today the country is far more heterogenous in religion than before, differences in religion do exist, and
these differences are important and should not be ignored.
Even from the phychological point of view, the classification is based on real and important differences. Religious
beliefs are not mere beliefs, mere ideas existing only in the mind, for they carry with them practical consequences
and are the motives of certain rules. of human conduct and the justification of certain acts. 60 Religious sentiment
makes a man view things and events in their relation to his God. It gives to human life its distinctive character, its
tone, its happiness or unhappiness its enjoyment or irksomeness. Usually, a strong and passionate desire is
involved in a religious belief. To certain persons, no single factor of their experience is more important to them than
their religion, or their not having any religion. Because of differences in religious belief and sentiments, a very poor
person may consider himself better than the rich, and the man who even lacks the necessities of life may be more
cheerful than the one who has all possible luxuries. Due to their religious beliefs people, like the martyrs, became
resigned to the inevitable and accepted cheerfully even the most painful and excruciating pains. Because of
differences in religious beliefs, the world has witnessed turmoil, civil strife, persecution, hatred, bloodshed and war,
generated to a large extent by members of sects who were intolerant of other religious beliefs. 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. 61 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. 62
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6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on social justice is
also baseless. Social justice is intended to promote the welfare of all the people. 63 Republic Act No. 3350 promotes
that welfare insofar as it looks after the welfare of those who, because of their religious belief, cannot join labor
unions; the Act prevents their being deprived of work and of the means of livelihood. In determining whether any
particular measure is for public advantage, it is not necessary that the entire state be directly benefited — it is
sufficient that a portion of the state be benefited thereby.
Social justice also means the adoption by the Government of measures calculated to insure economic stability of all
component elements of society, through the maintenance of a proper economic and social equilibrium in the inter-
relations of the members of the community. 64 Republic Act No. 3350 insures economic stability to the members of a
religious sect, like the Iglesia ni Cristo, who are also component elements of society, for it insures security in their
employment, notwithstanding their failure to join a labor union having a closed shop agreement with the employer.
The Act also advances the proper economic and social equilibrium between labor unions and employees who
cannot join labor unions, for it exempts the latter from the compelling necessity of joining labor unions that have
closed shop agreements and equalizes, in so far as opportunity to work is concerned, those whose religion prohibits
membership in labor unions with those whose religion does not prohibit said membership. Social justice does not
imply social equality, because social inequality will always exist as long as social relations depend on personal or
subjective proclivities. Social justice does not require legal equality because legal equality, being a relative term, is
necessarily premised on differentiations based on personal or natural conditions. 65 Social justice guarantees
equality of opportunity 66 , and this is precisely what Republic Act No. 3350 proposes to accomplish — it gives
laborers, irrespective of their religious scrupples, equal opportunity for work.
7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is not called for
— in other words, the Act is not proper, necessary or desirable. Anent this matter, it has been held that a statute
which is not necessary is not, for that reason, unconstitutional; that in determining the constitutional validity of
legislation, the courts are unconcerned with issues as to the necessity for the enactment of the legislation in
question. 67 Courts do inquire into the wisdom of laws. 68 Moreover, legislatures, being chosen by the people, are
presumed to understand and correctly appreciate the needs of the people, and it may change the laws accordingly.
69
The fear is entertained by appellant that unless the Act is declared unconstitutional, employers will prefer
employing members of religious sects that prohibit their members from joining labor unions, and thus be a fatal blow
to unionism. We do not agree. The threat to unionism will depend on the number of employees who are members of
the religious sects that control the demands of the labor market. But there is really no occasion now to go further
and anticipate problems We cannot judge with the material now before Us. At any rate, the validity of a statute is to
be determined from its general purpose and its efficacy to accomplish the end desired, not from its effects on a
particular case. 70 The essential basis for the exercise of power, and not a mere incidental result arising from its
exertion, is the criterion by which the validity of a statute is to be measured. 71
II. We now pass on the second assignment of error, in support of which the Union argued that the decision of the
trial court ordering the Union to pay P500 for attorney's fees directly contravenes Section 24 of Republic Act No.
875, for the instant action involves an industrial dispute wherein the Union was a party, and said Union merely acted
in the exercise of its rights under the union shop provision of its existing collective bargaining contract with the
Company; that said order also contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was never
actually dismissed by the defendant Company and did not therefore suffer any damage at all . 72
In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no industrial
dispute involved in the attempt to compel Appellee to maintain its membership in the union under pain of dismissal,
and that the Union, by its act, inflicted intentional harm on Appellee; that since Appellee was compelled to institute
an action to protect his right to work, appellant could legally be ordered to pay attorney's fees under Articles 1704
and 2208 of the Civil Code. 73
The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant provides that:
No suit, action or other proceedings shall be maintainable in any court against a labor organization or
any officer or member thereof for any act done by or on behalf of such organization in furtherance of an
industrial dispute to which it is a party, on the ground only that such act induces some other person to
break a contract of employment or that it is in restraint of trade or interferes with the trade, business or
employment of some other person or with the right of some other person to dispose of his capital or
labor. (Emphasis supplied)
That there was a labor dispute in the instant case cannot be disputed for appellant sought the discharge of
respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic Act No. 875 a question
involving tenure of employment is included in the term "labor dispute". 74 The discharge or the act of seeking it is the
labor dispute itself. It being the labor dispute itself, that very same act of the Union in asking the employer to dismiss
Appellee cannot be "an act done ... in furtherance of an industrial dispute". The mere fact that appellant is a labor
union does not necessarily mean that all its acts are in furtherance of an industrial dispute. 75 Appellant Union,
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therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not intertwined with any unfair
labor practice case existing at the time when Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article provides that
attorney's fees and expenses of litigation may be awarded "when the defendant's act or omission has compelled the
plaintiff ... to incur expenses to protect his interest"; and "in any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation should be recovered". In the instant case, it cannot be
gainsaid that appellant Union's act in demanding Appellee's dismissal caused Appellee to incur expenses to prevent
his being dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be allowed as
a matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the Court of First
Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs against appellant Union. It is so
ordered.
Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma and Aquino, JJ., concur.
Separate Opinions
FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the constitutional
infirmities imputed to it was demonstrated in a manner wellnigh conclusive in the learned, scholarly, and
comprehensive opinion so typical of the efforts of the ponente, Justice Zaldivar. Like the rest of my brethren, I
concur fully. Considering moreover, the detailed attention paid to each and every objection raised as to its validity
and the clarity and persuasiveness with which it was shown to be devoid of support in authoritative doctrines, it
would appear that the last word has been written on this particular subject. Nonetheless, I deem it proper to submit
this brief expression of my views on the transcendent character of religious freedom1 and its primacy even as
against the claims of protection to labor,2 also one of the fundamental principles of the Constitution.
1. Religious freedom is identified with the liberty every individual possesses to worship or not a Supreme Being, and
if a devotee of any sect, to act in accordance with its creed. Thus is constitutionally safeguarded, according to
Justice Laurel, that "profession of faith to an active power that binds and elevates man to his Creator ...."3 The
choice of what a man wishes to believe in is his and his alone. That is a domain left untouched, where intrusion is
not allowed, a citadel to which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he
wills reigns supreme. The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of
rational foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It suffices
that for him such a concept holds undisputed sway. That is a recognition of man's freedom. That for him is one of
the ways of self- realization. It would be to disregard the dignity that attaches to every human being to deprive him of
such an attribute. The "fixed star on our constitutional constellation," to borrow the felicitous phrase of Justice
Jackson, is that no official, not excluding the highest, has it in his power to prescribe what shall be orthodox in
matters of conscience — or to mundane affairs, for that matter.
Gerona v. Secretary of Education 4 speaks similarly. In the language of its ponente, Justice Montemayor: "The realm of belief and creed is infinite and
limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in
most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards."5 There was this qualification though: "But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The
Government steps in and either restrains said exercise or even prosecutes the one exercising it."6 It was on that basis that the daily compulsory flag ceremony in
accordance with a statute7 was found free from the constitutional objection on the part of a religious sect, the Jehovah's Witnesses, whose members alleged that
their participation would be offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of Education v. Barnette,8 the American Supreme
Court reached a contrary conclusion. Justice Jackson's eloquent opinion is, for this writer, highly persuasive. Thus: "The case is made difficult not because the
principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom
to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies
are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have
intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When
they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."9
There is moreover this ringing affirmation by Chief Justice Hughes of the primacy of religious freedom in the forum
of conscience even as against the command of the State itself: "Much has been said of the paramount duty to the
state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that
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duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of
scruples. When one's belief collides with the power of the state, the latter is supreme within its sphere and
submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has
always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably
be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God
involving duties superior to those arising from any human relation." 10 The American Chief Justice spoke in dissent, it
is true, but with him in agreement were three of the foremost jurists who ever sat in that Tribunal, Justices Holmes,
Brandeis, and Stone.
2. As I view Justice Zaldivar's opinion in that light, my concurrence, as set forth earlier, is wholehearted and entire.
With such a cardinal postulate as the basis of our polity, it has a message that cannot be misread. Thus is intoned
with a reverberating clang, to paraphrase Cardozo, a fundamental principle that drowns all weaker sounds. The
labored effort to cast doubt on the validity of the statutory provision in question is far from persuasive. It is attended
by futility. It is not for this Court, as I conceive of the judicial function, to restrict the scope of a preferred freedom.
3. There is, however, the question of whether such an exception possesses an implication that lessens the
effectiveness of state efforts to protect labor, likewise, as noted, constitutionally ordained. Such a view, on the
surface, may not be lacking in plausibility, but upon closer analysis, it cannot stand scrutiny. Thought must be given
to the freedom of association, likewise an aspect of intellectual liberty. For the late Professor Howe a
constitutionalist and in his lifetime the biographer of the great Holmes, it even partakes of the political theory of
pluralistic sovereignty. So great is the respect for the autonomy accorded voluntary societies. 11 Such a right implies
at the very least that one can determine for himself whether or not he should join or refrain from joining a labor
organization, an institutional device for promoting the welfare of the working man. A closed shop, on the other hand,
is inherently coercive. That is why, as is unmistakably reflected in our decisions, the latest of which is Guijarno v.
Court of Industrial Relations, 12 it is far from being a favorite of the law. For a statutory provision then to further
curtail its operation, is precisely to follow the dictates of sound public policy.
The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of constitutional tradition.
That, for me, is the channel to follow.
Separate Opinions
FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the constitutional
infirmities imputed to it was demonstrated in a manner wellnigh conclusive in the learned, scholarly, and
comprehensive opinion so typical of the efforts of the ponente, Justice Zaldivar. Like the rest of my brethren, I
concur fully. Considering moreover, the detailed attention paid to each and every objection raised as to its validity
and the clarity and persuasiveness with which it was shown to be devoid of support in authoritative doctrines, it
would appear that the last word has been written on this particular subject. Nonetheless, I deem it proper to submit
this brief expression of my views on the transcendent character of religious freedom1 and its primacy even as
against the claims of protection to labor,2 also one of the fundamental principles of the Constitution.
1. Religious freedom is identified with the liberty every individual possesses to worship or not a Supreme Being, and
if a devotee of any sect, to act in accordance with its creed. Thus is constitutionally safeguarded, according to
Justice Laurel, that "profession of faith to an active power that binds and elevates man to his Creator ...."3 The
choice of what a man wishes to believe in is his and his alone. That is a domain left untouched, where intrusion is
not allowed, a citadel to which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he
wills reigns supreme. The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of
rational foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It suffices
that for him such a concept holds undisputed sway. That is a recognition of man's freedom. That for him is one of
the ways of self- realization. It would be to disregard the dignity that attaches to every human being to deprive him of
such an attribute. The "fixed star on our constitutional constellation," to borrow the felicitous phrase of Justice
Jackson, is that no official, not excluding the highest, has it in his power to prescribe what shall be orthodox in
matters of conscience — or to mundane affairs, for that matter.
Gerona v. Secretary of Education 4 speaks similarly. In the language of its ponente, Justice Montemayor: "The realm of belief and creed is infinite and
limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in
most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards."5 There was this qualification though: "But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The
Government steps in and either restrains said exercise or even prosecutes the one exercising it."6 It was on that basis that the daily compulsory flag ceremony in
accordance with a statute7 was found free from the constitutional objection on the part of a religious sect, the Jehovah's Witnesses, whose members alleged that
their participation would be offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of Education v. Barnette,8 the American Supreme
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Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
FIRST DIVISION
G.R. No. 121777 January 24, 2001
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CAROL M. DELA PIEDRA, accused-appellant.
KAPUNAN, J.:
Accused-appellant Carol M. dela Piedra questions her conviction for illegal recruitment in large scale and assails, as
well, the constitutionality of the law defining and penalizing said crime.
The Court affirms the constitutionality of the law and the conviction of the accused, but reduces the penalty imposed
upon her.
The accused was charged before the Regional Trial Court of Zamboanga City in an information alleging:
That on or about January 30, 1994, in the City of Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without having previously obtained from the Philippine Overseas
Employment Administration, a license or authority to engage in recruitment and overseas placement of workers, did
then and there, wilfully, unlawfully and feloniously, offer and promise for a fee employment abroad particularly in
Singapore thus causing Maria Lourdes Modesto [y] Gadrino, Nancy Araneta y Aliwanag and Jennelyn Baez y
Timbol, all qualified to apply, in fact said Maria Lourdes Modesto had already advanced the amount of P2,000.00 to
the accused for and in consideration of the promised employment which did not materialized [sic] thus causing
damage and prejudice to the latter in the said sum; furthermore, the acts complained of herein tantamount [sic] to
economic sabotage in that the same were committed in large scale.1
Arraigned on June 20, 1994, the accused pleaded not guilty2 to these charges.
At the trial, the prosecution presented five (5) witnesses, namely, Erlie Ramos, SPO2 Erwin Manalopilar, Eileen
Fermindoza, Nancy Araneta and Lourdes Modesto. The succeeding narration is gathered from their testimonies:
On January 30, 1994, at exactly 10:00 in the morning, Erlie Ramos, Attorney II of the Philippine Overseas
Employment Agency (POEA), received a telephone call from an unidentified woman inquiring about the legitimacy of
the recruitment conducted by a certain Mrs. Carol Figueroa. Ramos, whose duties include the surveillance of
suspected illegal recruiters, immediately contacted a friend, a certain Mayeth Bellotindos, so they could both go to
No. 26-D, Tetuan Highway, Sta. Cruz, Zamboanga City, where the recruitment was reportedly being undertaken.
Upon arriving at the reported area at around 4:00 p.m., Bellotindos entered the house and pretended to be an
applicant. Ramos remained outside and stood on the pavement, from where he was able to see around six (6)
persons in the house's sala. Ramos even heard a woman, identified as Carol Fegueroa, talk about the possible
employment she has to provide in Singapore and the documents that the applicants have to comply with. Fifteen
(15) minutes later, Bellotindos came out with a bio-data form in hand.
On February 1, 1994, Ramos conferred with a certain Capt. Mendoza of the Criminal Investigation Service (CIS) to
organize the arrest of the alleged illegal recruiter. Also present were other members of the CIS, including Col.
Rodolfo Almonte, Regional Director of the PNP-CIS for Region IX, Eileen Fermindoza, and a certain SPO3 Santos.
The group planned to entrap the illegal recruiter the next day by having Fermindoza pose as an applicant.3
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On February 2, 1994, at around 8:00 p.m., Col. Almonte directed the case to SPO2 Erwin Manalopilar, a member of
the Philippine National Police who was assigned as an investigator of the CIS, to conduct a surveillance of the area
to confirm the report of illegal recruitment. Accordingly, he, along with Eileen Fermindoza, immediately proceeded to
Tetuan Highway. The two did not enter the house where the recruitment was supposedly being conducted, but
Fermindoza interviewed two people who informed them that some people do go inside the house. Upon returning to
their office at around 8:30 a.m., the two reported to Capt. Mendoza who organized a team to conduct the raid.
The raiding team, which included Capt. Mendoza, SPO2 Manalopilar, Fermindoza and a certain Oscar Bucol,
quickly set off and arrived at the reported scene at 9:30 that morning. There they met up with Erlie Ramos of the
POEA. Fermindoza then proceeded to enter the house while the rest of the team posted themselves outside to
secure the area. Fermindoza was instructed to come out after she was given a bio-data form, which will serve as the
team's cue to enter the house.4
Fermindoza introduced herself as a job applicant to a man and a woman, apparently the owners of the house, and
went inside. There, she saw another woman, later identified as Jasmine, coming out of the bathroom. The man to
whom Fermindoza earlier introduced herself told Jasmine that Fermindoza was applying for a position. Jasmine,
who was then only wearing a towel, told her that she would just get dressed. Jasmine then came back and asked
Fermindoza what position she was applying for. Fermindoza replied that she was applying to be a babysitter or any
other work so long as she could go abroad. Jasmine then gave her an application form.
A few minutes later, a certain Carol arrived. Jasmine informed Carol that Fermindoza was an applicant. Fermindoza
asked Carol what the requirements were and whether she (Fermindoza) was qualified. Carol told Fermindoza that if
she had a passport, she could fill up the application papers. Fermindoza replied that she had no passport yet. Carol
said she need not worry since Jasmine will prepare the passport for her. While filling up the application form, three
women who appeared to be friends of Jasmine arrived to follow up the result of their applications and to give their
advance payment. Jasmine got their papers and put them on top of a small table. Fermindoza then proceeded to the
door and signaled to the raiding party by raising her hand.
Capt. Mendoza asked the owners of the house, a married couple, for permission to enter the same. The owners
granted permission after the raiding party introduced themselves as members of the CIS. Inside the house, the
raiding party saw some supposed applicants. Application forms, already filled up, were in the hands of one Mrs.
Carol Figueroa. The CIS asked Figueroa if she had a permit to recruit. Figueroa retorted that she was not engaged
in recruitment. Capt. Mendoza nevertheless proceeded to arrest Figueroa. He took the application forms she was
holding as the raiding party seized the other papers5 on the table.6
The CIS team then brought Figueroa, a certain Jasmine Alejandro, and the three women suspected to be
applicants, to the office for investigation.7
In the course of their investigation, the CIS discovered that Carol Figueroa had many aliases, among them, Carol
Llena and Carol dela Piedra. The accused was not able to present any authority to recruit when asked by the
investigators.8 A check by Ramos with the POEA revealed that the acused was not licensed or authorized to
conduct recruitment.9 A certification10 dated February 2, 1994 stating thus was executed by Renegold M.
Macarulay, Officer-in-Charge of the POEA.
The CIS likewise interviewed the supposed applicants, Lourdes Modesto, Nancy Araneta and Jennelyn Baez, all
registered nurses working at the Cabato Medical Hospital, who executed their respective written statements.11
At the trial, Nancy Araneta, 23, recounted that she was at Jasmine Alejandro's house in the afternoon of January 30,
1994. Araneta had learned from Sandra Aquino, also a nurse at the Cabato Medical Hospital, that a woman was
there to recruit job applicants for Singapore.
Araneta and her friends, Jennelyn Baez and Sandra Aquino, arrived at Jasmine's house at around 4:30 p.m.
Jasmine welcomed them and told them to sit down. They listened to the "recruiter" who was then talking to a
number of people. The recruiter said that she was "recruiting" nurses for Singapore. Araneta and her friends then
filled up bio-data forms and were required to submit pictures and a transcript of records. They were also told to pay
P2,000, and "the rest will be salary deduction." Araneta submitted her bio-data form to Carol that same afternoon,
but did not give any money because she was "not yet sure."
On the day of the raid on February 2, 1994, Araneta was again at the Alejandro residence to submit her transcript of
records and her picture. She arrived at the house 30 minutes before the raid but did not witness the arrest since she
was at the porch when it happened.12
Maria Lourdes Modesto, 26, was also in Jasmine Alejandro's house on January 30, 1994. A friend of Jasmine had
informed her that there was someone recruiting in Jasmine's house. Upon arriving at the Alejandro residence,
Lourdes was welcomed by Jasmine. 1âwphi1.nêt
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Lourdes recalled that Carol Figueroa was already briefing some people when she arrived. Carol Figueroa asked if
they would like a "good opportunity" since a hospital was hiring nurses. She gave a breakdown of the fees involved:
P30,000 for the visa and the round trip ticket, and P5,000 as placement fee and for the processing of the papers.
The initial payment was P2,000, while P30,000 will be by salary deduction.
Lourdes filled up the application form and submitted it to Jasmine. After the interview, she gave the initial payment of
P2,000 to Jasmine, who assured Lourdes that she was authorized to receive the money. On February 2, 1994,
however, Lourdes went back to the house to get back the money. Jasmine gave back the money to Lourdes after
the raid.13
Denial comprised the accused's defense.
Carol dela Piedra, 37, is a housewife and a resident of Cebu City. Her husband is a businessman from Cebu, the
manager of the Region 7 Branch of the Grollier International Encyclopedia. They own an apartment in Cebu City,
providing lodging to students.
The accused claimed that she goes to Singapore to visit her relatives. She first traveled to Singapore on August 21,
1993 as a tourist, and came back to the Philippines on October 20 of the same year. Thereafter, she returned to
Singapore on December 10, 1993.
On December 21, 1993, while in Singapore, the accused was invited to a Christmas party sponsored by the
Zamboanga City Club Association. On that occasion, she met a certain Laleen Malicay, who sought her help. A
midwife, Malicay had been working in Singapore for six (6) years. Her employer is a certain Mr. Tan, a close friend of
Carol.
According to the accused, Malicay sent P15,000 home for her father who was then seriously ill. Malicay was not
sure, however, whether her father received the money so she requested the accused to verify from her relatives
receipt thereof. She informed the accused that she had a cousin by the name of Jasmine Alejandro. Malicay gave
the accused Jasmine's telephone number, address and a sketch of how to get there.
The accused returned to the country on January 21, 1994. From Cebu City, the accused flew to Zamboanga City on
January 23, 1994 to give some presents to her friends.
On January 30, 1994, the accused called up Jasmine Alejandro, Laleen Malicay's cousin, to inform her that she
would be going to her house. At around noon that day, the accused, accompanied by her friend Hilda Falcasantos,
arrived at the house where she found Jasmine entertaining some friends. Jasmine came down with two of her
friends whom she introduced as her classmates. Jasmine told them that the accused was a friend of Laleen Malicay.
The accused relayed to Jasmine Malicay's message regarding the money the latter had sent. Jasmine assured her
that they received the money, and asked Carol to tell Malicay to send more money for medicine for Malicay's
mother. Jasmine also told her that she would send something for Malicay when the accused goes back to
Singapore. The accused replied that she just needed to confirm her flight back to Cebu City, and will return to
Jasmine's house. After the meeting with Jasmine, the accused went shopping with Hilda Falcasantos. The accused
was in the house for only fifteen (15) minutes.
On February 2, 1994, the accused went to the Philippine Airlines office at 7:30 in the morning to confirm her 5:30
p.m. flight to Cebu City. She then proceeded to Jasmine's residence, arriving there at past 8 a.m.
Inside the house, she met a woman who asked her, "Are you Carol from Singapore?" The accused, in turn, asked
the woman if she could do anything for her. The woman inquired from Carol if she was recruiting. Carol replied in the
negative, explaining that she was there just to say goodbye to Jasmine. The woman further asked Carol what the
requirements were if she (the woman) were to go to Singapore. Carol replied that she would need a passport.
Two (2) minutes later, three (3) girls entered the house looking for Jasmine. The woman Carol was talking with then
stood up and went out. A minute after, three (3) members of the CIS and a POEA official arrived. A big man identified
himself as a member of the CIS and informed her that they received a call that she was recruiting. They told her she
had just interviewed a woman from the CIS. She denied this, and said that she came only to say goodbye to the
occupants of the house, and to get whatever Jasmine would be sending for Laleen Malicay. She even showed them
her ticket for Cebu City.
Erlie Ramos then went up to Jasmine's room and returned with some papers. The accused said that those were the
papers that Laleen Malicay requested Jasmine to give to her (the accused). The accused surmised that because
Laleen Malicay wanted to go home but could not find a replacement, one of the applicants in the forms was to be
her (Malicay's) substitute. Ramos told the accused to explain in their office.
The accused denied in court that she went to Jasmine's residence to engage in recruitment. She claimed she came
to Zamboanga City to visit her friends, to whom she could confide since she and her husband were having some
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problems. She denied she knew Nancy Araneta or that she brought information sheets for job placement. She also
denied instructing Jasmine to collect P2,000 from alleged applicants as processing fee.14
The accused presented two witnesses to corroborate her defense.
The first, Jasmine Alejandro, 23, testified that she met the accused for the first time only on January 30, 1994 when
the latter visited them to deliver Laleen Malicay's message regarding the money she sent. Carol, who was
accompanied by a certain Hilda Falcasantos, stayed in their house for 10 to 15 minutes only. Carol came back to the
house a few days later on February 2 at around 8:00 in the morning to "get the envelope for the candidacy of her
daughter." Jasmine did not elaborate.
Jasmine denied that she knew Nancy Araneta or Lourdes Modesto. She denied that the accused conducted
recruitment. She claimed she did not see Carol distribute bio-data or application forms to job applicants. She
disclaimed any knowledge regarding the P2,000 application fee.15
The other defense witness, Ernesto Morales, a policeman, merely testified that the accused stayed in their house in
No. 270 Tugbungan, Zamboanga City, for four (4) days before her arrest, although she would sometimes go
downtown alone. He said he did not notice that she conducted any recruitment.16
On May 5, 1995, the trial court rendered a decision convicting the accused, thus:
WHEREFORE, in view of all the foregoing consideration[s][,] this Court finds the accused Carol dela Piedra
alias Carol Llena and Carol Figueroa guilty beyond reasonable doubt of Illegal Recruitment committed in a
large scale and hereby sentences her to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of
P100,000.00, and also to pay the costs.
Being a detention prisoner, the said accused is entitled to the full time of the period of her detention during the
pendency of this case under the condition set forth in Article 29 of the Revised Penal Code.
SO ORDERED.17
The accused, in this appeal, ascribes to the trial court the following errors:
I
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT FINDING SEC. 13 (B) OF P.D. 442[,] AS
AMENDED[,] OTHERWISE KNOWN AS [THE] ILLEGAL RECRUITMENT LAW UNCONSTITUTIONAL.
II
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPREHENDING
TEAM COMPOSED OF POEA AND CIS REPRESENTATIVES ENTERED INTO [sic] THE RESIDENCE OF
JASMIN[E] ALEJANDRO WITHOUT ANY SEARCH WARRANT IN VIOLATION OF ARTICLE III, SECTION 2
OF THE PHILIPPINE CONSTITUTION, AND ANY EVIDENCE OBTAINED IN VIOLATION THEREOF, SHALL
BE INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEDING AS PROVIDED UNDER ARTICLE III,
SECTION 3, (2) OF THE SAME CONSTITUTION;
III
WITH DUE RESPECT, THE LOWER COURT ERRED IN IGNORING THAT WHEN SPO2 [sic] EILE[E]N
FERMINDOZA ENTERED THE RESIDENCE OF JASMIN[E] ALEJANDRO, THERE WAS NO CRIME
COMMITTED WHATSOEVER, HENCE THE ARREST OF THE ACCUSED-APPELLANT WAS ILLEGAL;
[IV]
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT DISCOVERING THAT SPO2 [sic] EILE[E]N
FERMINDOZA WAS NOT ILLEGALLY RECRUITED BY THE ACCUSED-APPELLANT, HENCE, ACCUSED-
APPELLANT SHOULD BE ACQUITTED;
V
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT DETECTING THAT NANCY ARANETA WAS
NOT ILLEGALLY RECRUITED BY THE ACCUSED-APPELLANT, HENCE, ACCUSED SHOULD BE
EXONERATED;
VI
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WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT REALIZING THAT MARIA LOURDES
MODESTO WAS NOT ILLEGALLY RECRUITED BY THE ACCUSED-APPELLANT, HENCE, ACCUSED-
APPELLANT SHOULD BE EXCULPATED;
VII
WITH DUE RESPECT, THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED-APPELLANT WAS
CHARGED WITH LARGE SCALE ILLEGAL RECRUITMENT ON JANUARY 30, 1994, THE DATE STATED IN
THE INFORMATION AS THE DATE OF THE CRIME, BUT ACCUSED WAS ARRESTED ON FEB. 2, 1994
AND ALL THE EVIDENCES [sic] INDICATED [sic] THAT THE ALLEGED CRIME WERE [sic] COMMITTED
ON FEB. 2, 1994, HENCE, THE INFORMATION IS FATALLY DEFECTIVE;
VIII
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT FINDING THAT THE ALLEGED CRIME OF
ILLEGAL RECRUITMENT WAS COMMITTED NOT ON [sic] LARGE SCALE, HENCE, THE PENALTY
SHOULD NOT BE LIFE IMPRISONMENT;
IX
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT FINDING THAT THOSE EVIDENCES [sic]
SEIZED AT THE HOUSE OF JASMIN[E] ALEJANDRO AND PRESENTED TO THE COURT WERE
PLANTED BY A BOGUS ATTORNEY[,] ERLIE S. RAMOS OF THE POEA;
X Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons
WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT DISCOVERING THAT ACCUSED-
APPELLANT DID NOT RECEIVE ANY PAYMENT EVEN A SINGLE CENTAVO FROM THE ALLEGED
VICTIMS WHO DID NOT SUFFER DAMAGE IN ANY MANNER, YET SHE WAS CONVICTED TO SERVE
HER ENTIRE LIFE BEHIND PRISON BARS. SUCH PUNISHMENT WAS CRUEL AND UNUSUAL, HENCE,
A WANTON VIOLATION OF THE CONSTITUTION.18
In the first assigned error, appellant maintains that the law defining "recruitment and placement" violates due
process. Appellant also avers, as part of her sixth assigned error, that she was denied the equal protection of the
laws.
We shall address the issues jointly.
Appellant submits that Article 13 (b) of the Labor Code defining "recruitment and placement" is void for vagueness
and, thus, violates the due process clause.19
Due process requires 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 its penalties.20 A criminal statute that "fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," or is so indefinite that "it
encourages arbitrary and erratic arrests and convictions," is void for vagueness.21 The constitutional vice in a vague
or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is
given no fair warning.22
We reiterated these principles in People vs. Nazario:23
As a rule, 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." It is repugnant to the Constitution
in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
become an arbitrary flexing of the Government muscle.
We added, however, that:
x x x the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or
by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that
had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a
manner annoying to persons passing by." Clearly, the ordinance imposed no standard at all "because one
may never know in advance what 'annoys some people but does not annoy others.'"
Coates highlights what has been referred to as a "perfectly vague" act whose obscurity is evident on its face.
It is to be distinguished, however, from legislation couched in imprecise language—but which nonetheless
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specifies a standard though defectively phrased—in which case, it may be "saved" by proper construction.
Here, the provision in question reads:
ART. 13. Definitions.—(a) x x x.
(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers, and includes referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any
manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in
recruitment and placement.
x x x.
When undertaken by non-licensees or non-holders of authority, recruitment activities are punishable as follows:
ART. 38. Illegal Recruitment. — (a) Any recruitment activities, including the prohibited practices enumerated
under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed
illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law
enforcement officer may initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense
involving economic sabotage and shall be penalized in accordance with Article 39 hereof.
conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise
or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or as a group.
x x x.
Art. 39. Penalties. – (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos
(P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein:
(b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or
its implementing rules and regulations, shall upon conviction thereof, suffer the penalty of imprisonment of not
less than five years or a fine of not less than P10,000 nor more than P50,000 or both such imprisonment and
fine, at the discretion of the court;
(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision
thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of
imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor
more than P100,000 or both such imprisonment and fine, at the discretion of the court;
x x x.
In support of her submission that Article 13 (b) is void for vagueness, appellant invokes People vs. Panis,24 where
this Court, to use appellant's term, "criticized" the definition of "recruitment and placement" as follows:
It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of
debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a
statute rather than a presidential decree is that they could be, and sometimes were, issued without previous public
discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty
pinnacle of power. The not infrequent results are rejection, intentional or not, of the interest of the greater number
and, as in the instant case, certain esoteric provisions that one cannot read against the background facts usually
reported in the legislative journals.
If the Court in Panis "had to speculate on the meaning of the questioned provision," appellant asks, what more "the
ordinary citizen" who does not possess the "necessary [legal] knowledge?"
Appellant further argues that the acts that constitute "recruitment and placement" suffer from overbreadth since by
merely "referring" a person for employment, a person may be convicted of illegal recruitment.
These contentions cannot be sustained.
Appellant's reliance on People vs. Panis is misplaced. The issue in Panis was whether, under the proviso of Article
13 (b), the crime of illegal recruitment could be committed only "whenever two or more persons are in any manner
promised or offered any employment for a fee." The Court held in the negative, explaining:
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As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception
thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment
and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or
promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring
or procuring (of) workers."
The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers.
Any of the acts mentioned in the basic rule in Article 13(b) will constitute recruitment and placement even if only one
prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in
consideration of a promise or offer of employment to two or more prospective workers, the individual or entity
dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be
deemed" create that presumption.
This is not unlike the presumption in article 217 of the Revised Penal Code, for example, regarding the failure of a
public officer to produce upon lawful demand funds or property entrusted to his custody. Such failure shall be prima
facie evidence that he has put them to personal use; in other words, he shall be deemed to have malversed such
funds or property. In the instant case, the word "shall be deemed" should by the same token be given the force of a
disputable presumption or of prima facie evidence of engaging in recruitment and placement.
It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of
debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a
statute rather than a presidential decree is that they could be, and sometimes were, issued without previous public
discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty
pinnacle of power. The not infrequent results are rejection, intentional or not, of the interest of the greater number
and, as in the instant case, certain esoteric provisions that one cannot read against the background facts usually
reported in the legislative journals.
At any rate, the interpretation here adopted should give more force to the campaign against illegal recruitment and
placement, which has victimized many Filipino workers seeking a better life in a foreign land, and investing hard-
earned savings or even borrowed funds in pursuit of their dream, only to be awakened to the reality of a cynical
deception at the hands of their own countrymen.
Evidently, therefore, appellant has taken the penultimate paragraph in the excerpt quoted above out of context. The
Court, in Panis, merely bemoaned the lack of records that would help shed light on the meaning of the proviso. The
absence of such records notwithstanding, the Court was able to arrive at a reasonable interpretation of the proviso
by applying principles in criminal law and drawing from the language and intent of the law itself. Section 13 (b),
therefore, is not a "perfectly vague act" whose obscurity is evident on its face. If at all, the proviso therein is merely
couched in imprecise language that was salvaged by proper construction. It is not void for vagueness.
An act will be declared void and inoperative on the ground of vagueness and uncertainty, only upon a showing that
the defect is such that the courts are unable to determine, with any reasonable degree of certainty, what the
legislature intended. x x x. In this connection we cannot pretermit reference to the rule that "legislation should not be
held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support and give it
effect. An Act will not be declared inoperative and ineffectual on the ground that it furnishes no adequate means to
secure the purpose for which it is passed, if men of common sense and reason can devise and provide the means,
and all the instrumentalities necessary for its execution are within the reach of those intrusted therewith."25
That Section 13 (b) encompasses what appellant apparently considers as customary and harmless acts such as "
labor or employment referral" ("referring" an applicant, according to appellant, for employment to a prospective
employer) does not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth.
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.26
In Blo Umpar Adiong vs. Commission on Elections,27 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.
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Appellant also invokes the equal protection clause28 in her defense. She points out that although the evidence
purportedly shows that Jasmine Alejandro handed out application forms and even received Lourdes Modesto's
payment, appellant was the only one criminally charged. Alejandro, on the other hand, remained scot-free. From
this, appellant concludes that the prosecution discriminated against her on grounds of regional origins. Appellant is a
Cebuana while Alejandro is a Zamboangueña, and the alleged crime took place in Zamboanga City.
The argument has no merit.
At the outset, it may be stressed that courts are not confined to the language of the statute under challenge in
determining whether that statute has any discriminatory effect. A statute nondiscriminatory on its face may be
grossly discriminatory in its operation.29 Though the law itself be fair on its face and impartial in appearance, yet, if it
is applied and administered by public authority with an evil eye and 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.30
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.31 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.32 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."33 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.34 The presumption is that the prosecuting
officers regularly performed their duties,35 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.36
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.37
We now come to the third, fourth and fifth assigned errors, all of which involve the finding of guilt by the trial court.
Illegal recruitment is committed when two elements concur. First, the offender has no valid license or authority
required by law to enable one to lawfully engage in recruitment and placement of workers. Second, he or she
undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13 (b), or any
prohibited practices enumerated under Article 34 of the Labor Code.38 In case of illegal recruitment in large scale, a
third element is added: that the accused commits said acts against three or more persons, individually or as a
group.39
In this case, the first element is present. The certification of POEA Officer-in-Charge Macarulay states that appellant
is not licensed or authorized to engage in recruitment and placement.
The second element is also present. Appellant is presumed engaged in recruitment and placement under Article 13
(b) of the Labor Code. Both Nancy Araneta and Lourdes Modesto testified that appellant promised them
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employment for a fee. Their testimonies corroborate each other on material points: the briefing conducted by
appellant, the time and place thereof, the fees involved. Appellant has not shown that these witnesses were incited
by any motive to testify falsely against her. The absence of evidence as to an improper motive actuating the
principal witnesses of the prosecution strongly tends to sustain that no improper motive existed and that their
testimony is worthy of full faith and credence.40
Appellant's denials cannot prevail over the positive declaration of the prosecution witnesses. Affirmative testimony of
persons who are eyewitnesses of the fact asserted easily overrides negative testimony.41
That appellant did not receive any payment for the promised or offered employment is of no moment. From the
language of the statute, the act of recruitment may be "for profit or not;" it suffices that the accused "promises or
offers for a fee employment" to warrant conviction for illegal recruitment.
The testimonies of Araneta and Modesto, coming as they do from credible witnesses, meet the standard of proof
beyond reasonable doubt that appellant committed recruitment and placement. We therefore do not deem it
necessary to delve into the second and third assigned errors assailing the legality of appellant's arrest and the
seizure of the application forms. A warrantless arrest, when unlawful, has the effect of invalidating the search
incidental thereto and the articles so seized are rendered inadmissible in evidence.42 Here, even if the documents
seized were deemed inadmissible, her conviction would stand in view of Araneta and Modesto's testimonies.
Appellant attempts to cast doubt on the prosecution's case by claiming in her ninth assigned error that Erlie Ramos
of the POEA supposedly "planted" the application forms. She also assails his character, alleging that he passed
himself off as a lawyer, although this was denied by Ramos.
The claim of "frame-up," like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can
easily be concocted but difficult to prove.43 Apart from her self-serving testimony, appellant has not offered any
evidence that she was indeed framed by Ramos. She has not even hinted at any motive for Ramos to frame her.
Law enforcers are presumed to have performed their duties regularly in the absence of evidence to the contrary.44
Considering that the two elements of lack of license or authority and the undertaking of an activity constituting
recruitment and placement are present, appellant, at the very least, is liable for "simple" illegal recruitment. But is
she guilty of illegal recruitment in large scale? We find that she is not.
A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three
or more persons whether individually or as a group.45 In this case, only two persons, Araneta and Modesto, were
proven to have been recruited by appellant. The third person named in the complaint as having been promised
employment for a fee, Jennelyn Baez, was not presented in court to testify.
It is true that law does not require that at least three victims testify at the trial; nevertheless, it is necessary that there
is sufficient evidence proving that the offense was committed against three or more persons.46 In this case,
evidence that appellant likewise promised her employment for a fee is sketchy. The only evidence that tends to
prove this fact is the testimony of Nancy Araneta, who said that she and her friends, Baez and Sandra Aquino, came
to the briefing and that they (she and her "friends") filled up application forms.
The affidavit47 Baez executed jointly with Araneta cannot support Araneta's testimony. The affidavit was neither
identified, nor its contents affirmed, by Baez. Insofar as it purports to prove that appellant recruited Baez, therefore,
the affidavit is hearsay and inadmissible.48 In any case, hearsay evidence, such as the said affidavit, has little
probative value.49
Neither can appellant be convicted for recruiting CIS agent Eileen Fermindoza or even the other persons present in
the briefing of January 30, 1994. Appellant is accused of recruiting only the three persons named in the information
— Araneta, Modesto and Baez. The information does not include Fermindoza or the other persons present in the
briefing as among those promised or offered employment for a fee. To convict appellant for the recruitment and
placement of persons other than those alleged to have been offered or promised employment for a fee would violate
her right to be informed of the nature and cause of the accusation against her.50
In any event, the purpose of the offer of the testimonies of Araneta, Morales and Fermindoza, respectively, was
limited as follows:
FISCAL BELDUA:
Your Honor please, we are offering the oral testimony of the witness, as one of those recruited by the
accused, and also to identify some exhibits for the prosecution and as well as to identify the accused.51
xxx
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FISCAL BELDUA:
We are offering the oral testimony of the witness, Your Honor, to testify on the fact about her
recruitment by the accused and immediately before the recruitment, as well as to identify some exhibits
for the prosecution, and also the accused in this case, Your Honor.52
xxx
FISCAL BELDUA:
This witness is going to testify that at around that date Your Honor, she was connected with the CIS,
that she was instructed together with a companion to conduct a surveillance on the place where the
illegal recruitment was supposed to be going on, that she acted as an applicant, Your Honor, to
ascertain the truthfulness of the illegal recruitment going on, to identify the accused, as well as to
identify some exhibits for the prosecution.53
xxx
Courts may consider a piece of evidence only for the purpose for which it was offered,54 and the purpose of the
offer of their testimonies did not include the proving of the purported recruitment of other supposed applicants by
appellant.
Appellant claims in her seventh assigned error that the information is fatally defective since it charges her with
committing illegal recruitment in large scale on January 30, 1994 while the prosecution evidence supposedly
indicates that she committed the crime on February 2, 1994.
We find that the evidence for the prosecution regarding the date of the commission of the crime does not vary from
that charged in the information. Both Nancy Araneta and Lourdes Modesto testified that on January 30, 1994, while
in the Alejandro residence, appellant offered them employment for a fee. Thus, while the arrest was effected only on
February 2, 1994, the crime had already been committed three (3) days earlier on January 30, 1994.
The eighth and tenth assigned errors, respectively, pertain to the penalty of life imprisonment imposed by the trial
court as well as the constitutionality of the law prescribing the same, appellant arguing that it is unconstitutional for
being unduly harsh.55 Section 19 (1), Article III of the Constitution states: "Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted."
The penalty of life imprisonment imposed upon appellant must be reduced. Because the prosecution was able to
prove that appellant committed recruitment and placement against two persons only, she cannot be convicted of
illegal recruitment in large scale, which requires that recruitment be committed against three or more persons.
Appellant can only be convicted of two counts of "simple" illegal recruitment, one for that committed against Nancy
Araneta, and another count for that committed against Lourdes Modesto. Appellant is sentenced, for each count, to
suffer the penalty of four (4) to six (6) years of imprisonment and to pay a fine of P30,000.00. This renders
immaterial the tenth assigned error, which assumes that the proper imposable penalty upon appellant is life
imprisonment.
WHEREFORE, the decision of the regional trial court is MODIFIED. Appellant is hereby declared guilty of illegal
recruitment on two (2) counts and is sentenced, for each count, to suffer the penalty of four (4) to six (6) years of
imprisonment and to pay a fine of P30,000.00. 1âwphi1.nêt
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.
Footnotes
1 Records, p. 1.1
2 Id., at 28.2
3 TSN, July 11, 1994, pp. 3-13, 26-39.
4 TSN, July 12, 1994, pp. 7-14, 35-56, 82-88, 102-110.
5 The documents seized include: Exhibit "C," the application form of one Josilyn Villa, consisting of four (4)
pages; Exhibit "D," the application form of one Shirley Estrada, consisting of nine (9) pages; Exhibit "E," the
application form of one Cora Iglesia, with an annex of nine (9) pages; Exhibit "F," the application form of
Jocelyn Santos. Exhibit "G," the application form of Jennifer Alejandro; Exhibit "H," the application form of one
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2/1/24, 7:58 PM G.R. No. 148560
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
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,
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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.
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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.
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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.
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Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to say
and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. that two or more, di ba?
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 REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
and cause of the accusation against him, hence, violative of his fundamental right to due process. 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
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 REP. GARCIA: Series. One after the other eh di....
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 not restricted in the form of expression of its SEN. TANADA: So that would fall under the term "series?"
will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is REP. GARCIA: Series, oo.
distinctly expressed in the Plunder Law.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural,
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
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, ordinarily, untrained philologists REP. ISIDRO: So, it is not a combination?
and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" REP. GARCIA: Yes.
Combination - the result or product of combining; the act or process of combining. To combine is to bring into such REP. ISIDRO: When you say combination, two different?
close relationship as to obscure individual characters.
REP. GARCIA: Yes.
Series - a number of things or events of the same class coming one after another in spatial and temporal
succession. SEN. TANADA: Two different.

That Congress intended the words "combination" and "series" to be understood in their popular meanings is REP. ISIDRO: Two different acts.
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law:
REP. GARCIA: For example, ha...
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: Now a series, meaning, repetition...
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 DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
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 SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already
misappropriation, conversion, misuse, will these be included also? 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."
REP. GARCIA: Yeah, because we say a series. Anyway, the criminal acts are in the plural.

REP. ISIDRO: Series. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

REP. GARCIA: Yeah, we include series. THE PRESIDENT: Probably two or more would be....

REP. ISIDRO: But we say we begin with a combination. SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.

REP. GARCIA: Yes. SENATOR TANADA: Accepted, Mr. President x x x x

REP. ISIDRO: When we say combination, it seems that - 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: Two.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different
REP. GARCIA: No, no, not twice. categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar.
(1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).
REP. ISIDRO: Not twice?
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same
REP. GARCIA: Yes. Combination is not twice - but combination, two acts. category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It cannot be a distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in
repetition of the same act. the law.
REP. GARCIA: That be referred to series, yeah. 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 -
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
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
REP. GARCIA: A series.
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,
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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
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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).
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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).
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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
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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
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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.
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27
Footnotes United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6 (1963).
1 28
Approved 12 July 1991 and took effect 8 October 1991. G.R. No. 57841, 30 July 1982, 115 SCRA 793.
2 29
Approved 13 December 1993 and took effect 31 December 1993. People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.
3 30
Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644. People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.
4 31
G.R. No. 87001, 4 December 1989, 179 SCRA 828. 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
5
Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925). prove all those beyond reasonable doubt. If you can prove by pattern, let’s say 10, but each must be proved
6
beyond reasonable doubt, you do not have to prove 150 crimes. That’s the meaning of this (Deliberations of
82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768. Committee on Constitutional Amendments and Revision of Laws, 15 November 1988, cited in the
7
Sandiganbayan Resolution of 9 July 2001).
Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430, 448.
32
8
TSN, 18 September 2001, pp. 115-121.
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26.
33
9
4 Record of the Senate 1316, 5 June 1989.
Resolution of 9 July 2001.
34
10
Ibid.
See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.
35
11
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
Ibid.
36
12
267 SCRA 682, 721-2 (1997) (emphasis added).
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
37
13
Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
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). 38
G.R. No. 117472, 7 February 1997, 267 SCRA 682.
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). The Lawphil Project - Arellano Law Foundation

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, DISSENTING OPINION
G.R. No. 121777, 24 January 2001.
17
413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).
KAPUNAN, J.:
18
United States v. Salerno, supra.
The primary duty of the Court is to render justice. The resolution of the issues brought before it must be grounded
19
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369 on law, justice and the basic tenets of due process, unswayed by the passions of the day or the clamor of the
(1982). multitudes, guided only by its members’ honest conscience, clean hearts and their unsullied conviction to do what is
right under the law.
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). 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,
21
G. Gunther & K. Sullivan, Constitutional Law 1299 (2001). 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
22
Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev. 1321 immutable principles that should apply to all, even to those we hate. As Fr. Joaquin G. Bernas, S.J., a noted
(2000) arguing that, in an important sense, as applied challenges are the basic building blocks of constitutionalist, aptly puts it--
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. 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
23
Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 (1936); "[T]he tantamount to a rule of men and not of law.1
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. The Basic Facts
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities." 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
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 petition for certiorari and prohibition against Respondent Third Division of the Sandiganbayan filed by petitioner
524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388 (1989). 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
25
Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the Arts v. Finley, 524 be prohibited and enjoined from proceeding with his arraignment and trial in Criminal Case No. 26558 due to the
U.S. 569, 580 (1998). unconstitutionality of R. A. No. 7080.
26
FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of Environment 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
and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate Opinion). G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3, 2001, upholding the constitutionality of
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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.
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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;
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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.
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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;
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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
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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 overbreadth."49 Thus, in at least two
cases,50 the U.S. courts allowed the facial challenges to vague criminal statutes even if these did not implicate free
speech
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 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 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 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 stated that a criminal statute may be facially invalid even if it has some conceivable application. It
went 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 sportsman, the law
enforcement officer, the prosecutor or the judge."53
It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of the statute as applied to
him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under 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 establishment of monopolies and combinations or
implementation of decrees intended to benefit particular persons or special interests (§ 1(d)(5))."54 Notably, much of
petitioner’s arguments dealt with the vagueness of the key phrases "combination or series" and "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy" which go into the very nature of the crime for
which he is charged.
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 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.
Men steeped in law find
difficulty in understanding plunder.
The basic question that arises, therefore, is whether the clauses in Section 2--
combination or series of overt or criminal acts as described in Section 1(d) hereof
and Section 1(d), which provides--
x x x by any combination or series of the following means or similar schemes:
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1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; 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.
xxx

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich 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:
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines. 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
as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass, accumulate or acquire ill-
combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or
gotten wealth" and of "a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy,"
number one and something else are included, how about a series of the same act? For example, through
are clear enough that a person "of common intelligence" need not guess at their meaning and differ as to their
misappropriation, conversion, misuse, will these be included also?
application.
THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.
The above raise several difficult questions of meaning which go to the very essence of the offense, such as:
REP. ISIDRO: Series.
a. How many acts would constitute a "combination or series?"
THE CHAIRMAN (REP. GARCIA): Yeah, we include series.
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 REP. ISIDRO: But we say we begin with a combination.
indicative of the overall unlawful scheme or conspiracy."
THE CHAIRMAN: (REP. GARCIA): Yes.
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? REP. ISIDRO: When we say combination, it seems that-
d. What would constitute a "pattern"? What linkage must there be between and among the acts to constitute a THE CHAIRMAN (REP. GARCIA): Two.
"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? REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.
e. When Section 4 speaks of "indicative of the overall unlawful scheme or conspiracy," would this mean that THE CHAIRMAN: (REP. GARCIA): No, no, not twice.
the "scheme" or "conspiracy" should have been conceived or decided upon in its entirety, and by all of the
participants? REP. ISIDRO: Not twice?

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?
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.

g. Within what time frame must the acts be committed so as to constitute a "combination or series"? REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

I respectfully disagree with the majority that "ascertainable standards and well-defined parameters" are provided in THE CHAIRMAN (REP. GARCIA): A series.
the law55 to resolve these basic questions.
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?
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 THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes. That is why, I said,
quarrelling with each other in finding ways to determine what [they] understand by plunder."56 Senator that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
Neptali Gonzales also noted during the deliberations of Senate Bill No. 733 that the definition of plunder under combination or series of overt or criminal acts. So…
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 HON. ISIDRO: I know what you are talking about. For example, through misappropriation, conversion, misuse or
part, pointed to several problematical portions of the law that were left unclarified. He posed the question: "How can malversation of public funds who raids the public treasury, now, for example, misappropriation, if there are a series
you have a 'series' of criminal acts if the elements that are supposed to constitute the series are not proved of misappropriations?
to be criminal?"58
xxx
The meanings of "combination" and "series"
THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…
as used in R.A. No. 7080 are not clear.
THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?
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 THE CHAIRMAN (REP. GARCIA): Series, oo.
of "combination": "the result or product or product of combining: a union or aggregate made of combining one thing
with another."59 REP. ISIDRO: Now, if it is combination, ano, two misappropriations…

In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least two of the THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination. Series.
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 REP. ISIDRO: So, it is not a combination?

THE CHAIRMAN (REP. GARCIA): Yes.

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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…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
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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 (REP. GARCIA P.) Yes.
THE CHAIRMAN (SEN. TAÑADA) Two different.
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REP. ISIDRO. Two different acts.
THE CHAIRMAN (REP. GARCIA P.) For example, ha…
REP. ISIDRO. Now a series, meaning, repetition…
THE CHAIRMAN (SEN. TAÑADA) Yes.
REP. ISIDRO. With that…
THE CHAIRMAN (REP. GARCIA P.) Thank you.
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?
THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon sa portion ng…
Saan iyon? As mentioned, as described…
THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…
THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.
THE CHAIRMAN (REP. GARCIA P.) Okay?
REP. ISIDRO. Very good.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.
The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)
The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to render 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 Committee members themselves being clear
on the concept of series and 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:
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).
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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.
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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
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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
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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
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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.
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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
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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.
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According to petitioners: 27 See Id.

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).
c. The Sixth Circuit courts define "series" to mean "common scheme" (e.g. U.S. v. Russo (480 F2d
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
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 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 (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.]
28
ART. III, Sections 1, 12 and 14.
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:
x x x What then is the standard of due process which must exist both as a procedural and a substantive
requisite to free the challenged ordinance, or any governmental action for that matter, from the
imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not
outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness.
It is the embodiment of the sporting idea of fair play. 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).
29 ART. III, Section 14.
30 People v. Nazario, 165 SCRA 186 (1988).
31
347 U.S. 612 (1954).

9 Amended Petition, pp. 18-19; Memorandum for Petitioner, pp. 34-45. 32 Id., at 617.

10 33 Kolender v. Lawson, 461 U.S. 352 (1983).

Id., at 13-14; Id., at 19.
11 Id., at 16-17; Id., at 23. 34
Ibid.

12 Id., at 25-34. 35 See Grayned v. City of Rockford, 408 U.S. 104 (1972).

13 36 Ibid.
Id., at 27-31;Id., at. 66-76.
14 Id., at 27-35; Id.,. at 76-83. 37
Kolender, supra.

15 Comment, pp. 11-13; Memorandum for Respondents, pp. 30-32. 38 Ibid.

16 39 Section 2.
Ibid.; Id., at 49-50.
17 Id., at 13-25; Id., at 58-59. 40
See FCC v. American Broadcasting Co., 347 US 284 (1954).

18 Id., at 28-33; Id.., at 70-77. 41 See Dissenting Opinion of Justice Vicente V. Mendoza, pp. 10-12.

19 42 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE DOCTRINE,
Id., at 33-34.
American Constitutional Law (2nd) (1998), p. 1033 citing Lanzetta v. New Jersey, 306 U.S. 451 (1939). See
20 Comment, pp. 37-42; Memorandum for Respondents, pp. 82-84. 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.
21 Reply to Comment, p. 12. Lawson, supra.
43
22 THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law – Substance and Procedure, Vol. IV
Id., at 14-15.
(1992), pp. 25-31; 36-37.
23 TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3.
44 See Note 42.

24 Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Court of Appeals, 269 SCRA 402 (1997).
45
Springfield Armory, Inc. v City of Columbus, supra.
25
Morfe vs. Mutuc, 22 SCRA 424 (1968). 46 See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10-12.

26 State v. Vogel, 467 N.W.2d 86 (1991).

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47 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE DOCTRINE, Taken individually, the elements that are supposed to constitute the series can be well understood. But
American Constitutional Law (2nd) [1998], p. 1033 citing Lanzetta v. New Jersey, 306 U.S. 451 [1939]. See now the Estrada lawyers are asking when precisely these elements constitute a "combination or
also Springfield Armory, Inc. v City of Columbus, 29 F.3d 250, 1994 FED App 239P [6th Cir. 1994]; Connally v. series". The question is important because of an intriguing provision in the plunder law: "For purposes
General Construction Company, 269 U.S. 385 [1926]; Lambert v. California, 355 U.S. 225 [1957]; Kolender v. of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done
Lawson, 461 U.S. 352 [1953]. 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
48
413 U.S. 601 [1973]. 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?
49 VAGUENESS AND OVERBREADTH, AN OVERVIEW, Lockhart et al. Constitutional Law, Cases-
59 Decision, p. 12.
Comments-Questions [6th Ed, 1986], p. 740.
60
50 Springfield v. Oklahoma, supra; Kolender v. Lawson, supra. Id., at 14.

51 61 Decision, pp. 12-14.

Supra.
52 Supra. 62 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND COMMITTEE ON
CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991, pp. 39-40.
53 At p. 253.
63
Decision, p. 14.
54
See Concurring Opinion of Justice Mendoza, p. 5. 64 RECORDS OF THE SENATE, June 6, 1989, pp. 92-93.
55 See Decision, p. 7.
65 RECORDS OF THE SENATE, June 5, 1989, pp. 34.
56 The transcript of Stenographic Notes of the Hearing in Criminal Case No. 26561 on June 13, 2001, p. 16
66
reads: Reply to Comment, p. 33.
67 Ibid.
PJ Garchitorena:

xxx 68 Id.

But you see, I will provoke you. Forgive us for provoking you, but we ourselves have been quarrelling 69
Id.
with each other in finding ways to determine what we understand by plunder.
70 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND COMMITTEE ON
xxx
CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991, p. 40.
57
Infra. 71 Ibid.
58 In his column on the April 25, 2001 issue of Today, Fr. Bernas stated:
72
Id.
xxx
73 Id.
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 74 Id.
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 75
Id., at 40-41.
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 76 Id., at 42-43.
other but must be shown to be parts of one combination or scheme. The interrelationship of the
separate acts must be shown. 77
Article III of the Constitution provides:
An alternate reading of the law, which is perhaps easier to prove but harsher on the accused, is that Sec. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any
each one of the six ways of amassing wealth can constitute plunder if the total take adds up to the person be denied the equal protection of the laws.
required P75 million.
xxx
xxx
Sec. 19(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
There is another provision in the law which I find intriguing. It says: "For purposes of establishing the inflicted. Neither shall death penalty be imposed unless, for compelling reasons involving heinous
crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being reclusion perpetua. (Emphasis supplied.)
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 78 Reply to Comment, pp.16-18; Memorandum for Petitioner, pp. 62-63.
statute?
79 Article 335, Revised Penal Code.
Fr. Bernas also discussed the vagueness of "combination" or "series" in the July 1, 2001 issue of
Today: 80
Article 249, Revised Penal Code.
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81 Rubi vs. Provincial Board of Mindoro, 39 Phil 660 (1919).
82
See Article XIII, Section 1 and 2, Constitution.
83 Id., at Section 6.
84 Id., at Section 3.
85
Id., at Section 5.
86 Id., at Section 7.
87 Id., at Section 14.
88
See Article XIV, Constitution..
89 Comment, p. 13.
90 Decision, pp. 14-15.
91
Alpha Investigation and Security Agency, 272 SCRA 653 (1997).
92 11 Oxford English Dictionary 357 (2d ed 1989).
93 Webster’s Third New International Dictionary, p. 2029 (1976).
94
H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492 US 229 (1989)
95 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).
96 Supra.
97
Id., at 236.
98 Justice Scalia was joined by Chief Justice Rehnquist, Justices O’Connor and Kennedy.
99
Atkinson, Jeff. "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," § § 1961-68: Broadest
of the Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 1 (1978).
100 18 U.S.C. § 1962 (1970):
(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
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
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
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
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
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.
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of
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.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the
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 collection of
unlawful debt.
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(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.
101 Id., at § 1961(5).
102
See RECORDS JOINT CONFERENCE COMMITTEE MEETING, May 7, 1991, p. 12.
103 Northwestern, supra.
104 Id., at 239:
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
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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
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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.
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123 Decision, pp. 21-22. In my view, it is unnecessary to rule on the unconstitutionality of the entire law,2 R. A. No. 7080, as 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
124
Today, July 1, 2001 issue. 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
125 In People vs. Echegaray (267 SCRA 682) the word "heinous" was traced to the early Spartans’ word consequently, the charges must be the specific acts alleged to be in violation of the law, committed with malice and
"haineus" which means hateful and abominable. In turn, the word came from the Greek prefix "haton" criminal intent. At any rate, I venture the view that Section 4, R. A. No. 7080, must be interpreted as requiring proof
indicating acts so hateful or shockingly evil. (at 715) 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.
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 and
perversity are repugnant and outrageous to the common standards and norms of decency and morality in a
just, civilized and ordered society. Footnotes

127 1 Petition, Annex "B", Motion to Quash, Ground II.

Reyes, Luis B. The Revised Penal Code, Book One (13th ed.), p. 56.
128 Petitioner’s Memorandum, p. 81. 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.
129 Dennis v. U.S., 314 U.S. 494 (1951). 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
130 1, 2001.
Scales v. U.S., 203 (1961).
3
131 Smith v. California, 361 U.S. 147 (1959). 335 Phil. 343 [1997].

132 342 U.S. 246 (1952). The Lawphil Project - Arellano Law Foundation

133
Regalado, Florenz, Criminal Law Conspectus (2001 ed.), 161-162.
134 Atty. Rene A.V. Saguisag. DISSENTING OPINION

135 Senate Bill No. 733.

SANDOVAL–GUTIERREZ, J.:

At times when speaking against popular views can subject a member of this Court to all sorts of unfair criticism and
136
Tañada and Macapagal vs. Cuenco, 103 Phil. 1093. 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
137 Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996). 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
138 65 Phil. 56 (1937). take a stand and, therefore, dissent from the majority opinion.

139
Id., at 90.
140 See Explanatory Note, Senate Bill No. 733, Records of the Senate, June 1, 1989, pp. 1-2.
141
See Papachristou v. Jacksonville, 405 U.S. 156 (1972).
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 and void.
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;
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]).
The Lawphil Project - Arellano Law Foundation
SEPARATE DISSENTING OPINION
PARDO, J.:
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 be set aside, and
the case remanded to the Ombudsman for the amendment of the information to charge only a single offense.
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

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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.
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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?
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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
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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
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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
36
of life, liberty or property to guess at, or speculate as to, the meaning of a penal statute. 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
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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.
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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
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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.
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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
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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
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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
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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 "general
plan" indicates that the Sandiganbayan is expanding the coverage of the law through the use of ambiguous phrases
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capable of dual or multiple applications. When do two or three acts of the same offense of malversation constitute a
"pattern," "a general plan of action," or an "over-all scheme?" 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?"
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 vague or ambiguous provision can
supply the missing ingredients of the Plunder Law.
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 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 prosecutor. The prosecution takes over the role of
Congress.
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, 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 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
Definiteness is a due process requirement. It is especially important in its application to penal statutes. 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 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 understandable rule of conduct and know what acts it is his duty to avoid.26
The questioned statutes were enacted purportedly in the interest of justice, public peace and order, and the rule of
law. These purposes are not served by R.A. Nos. 7080 and 7659. These statutes allow the prosecutors and the
courts arbitrary and too broad discretionary powers in their enforcement. Fair, equal and impartial justice would be
denied.
For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law for being unconstitutional.
Footnotes
1 In re Winship, 397 U.S. 358 ,364.
Constitution, Article III, Sections 1, 12 & 14.
2 Constitution, Article III, Section 14.
3 People v. Nazario, 165 SCRA 186, 195 [1988].
4
Connally v. General Construction Co., 269 U.S. 385 [1926].
5 Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].
6 People v. Nazario, supra; Scull v. Commonwealth, 359 U.S. 344, 353.
7
Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.
8 U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193.
9 National Association for the Advancement of Colored People (NAACP) v. Alabama, 377 U.S. 288.
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.
11 Republic Act No. 7080, Section 1 (d).
12 Smith v. Goguen, 415 U.S. 566.
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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.
"The provisions contained in the preceding paragraphs shall be made applicable to assessors,
arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties."
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."
15 U.S. v. Go Chico, 14 Phil. 134 [1909].
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
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.
25 Nebbia v. New York, 291 U.S. 502.
26
Musser v. Utah, supra; Giaccio v. Pennsylvania, 382 U.S. 399; United States v. Brewer, supra.
The Lawphil Project - Arellano Law Foundation
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
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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"
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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)).
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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
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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
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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."
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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.
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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.
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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."
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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:
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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
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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:
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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 a
malum in se and not a malum prohibitum and the burden of proving each and every predicate crime is on the
prosecution.
For these reasons, I respectfully submit that R.A. No. 7080 is valid and that, therefore, the petition should be
dismissed.
Footnotes
1 See Estrada v. Desierto, G.R. No. 146710, March 2, 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146715,
March 2, 2001.
2
CONST., ART., Art. II, §27.
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).
4 Memorandum for the Petitioner, pp. 4-7.
5
Id. at 11-66.
6 293 SCRA 161, 166 (1998).
7 304 U.S. 144, 152, 82 L.Ed. 1234, 1241 (1938) (cases cited omitted).
8
Memorandum for the Petitioner, p. 5.
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2/1/24, 7:59 PM G.R. No. 225442
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
G.R. No. 225442, August 8, 2017,
♦ Decision, Perlas-Bernabe, [J]
♦ Separate Opinion, Leonen, [J]
EN BANC
August 8, 2017
G.R. No. 225442
SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE LIM, JOHN ARVIN
NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS REYES, and CLARISSA JOYCE
VILLEGAS, minor, for herself and as represented by her father, JULIAN VILLEGAS, JR., Petitioners,
vs.
QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA, as represented by
MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented by MAYOR JOHN REY TIANGCO,,
Respondents,
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances issued by the local
governments of Quezon City, Manila, and Navotas. The petition prays that a temporary restraining order (TRO) be
issued ordering respondents Herbert Bautista, Joseph Estrada, and John Rey Tiangco, as Mayors of their
respective local governments, to prohibit, refrain, and desist from implementing and enforcing these issuances,
pending resolution of this case, and eventually, declare the City of Manila's ordinance as ultra vires for being
contrary to Republic Act No. (RA) 9344,2 or the "Juvenile Justice and Welfare Act," as amended, and all curfew
ordinances as unconstitutional for violating the constitutional right of minors to travel, as well as the right of parents
to rear their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors, several
local governments in Metro Manila started to strictly implement their curfew ordinances on minors through police
operations which were publicly known as part of "Oplan Rody."3
Among those local governments that implemented curfew ordinances were respondents: (a) Navotas City, through
Pambayang Ordinansa Blg. 99- 02,4 dated August 26, 1999, entitled "Nagtatakdang 'Curfew' ng mga Kabataan na
Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang Maynila," as amended by
Pambayang Ordinansa Blg. 2002-13,5 dated June 6, 2002 (Navotas Ordinance); (b) City of Manila, through
Ordinance No. 80466 entitled "An Ordinance Declaring the Hours from 10:00 P.M. to 4:00 A.M. of the Following Day
as 'Barangay Curfew Hours' for Children and Youths Below Eighteen (18) Years of Age; Prescribing Penalties
Therefor; and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c) Quezon City, through
Ordinance No. SP- 2301,7 Series of 2014, entitled "An Ordinance Setting for a [sic] Disciplinary Hours in Quezon
City for Minors from 10:00 P.M. to 5:00 A.M., Providing Penalties for Parent/Guardian, for Violation Thereof and for
Other Purposes" dated July 31, 2014 (Quezon City Ordinance; collectively, Curfew Ordinances).8
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Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK) - an association of young
adults and minors that aims to forward a free and just society, in particular the protection of the rights and welfare of
the youth and minors10 - filed this present petition, arguing that the Curfew Ordinances are unconstitutional because
they: (a) result in arbitrary and discriminatory enforcement, and thus, fall under the void for vagueness doctrine; (b)
suffer from overbreadth by proscribing or impairing legitimate activities of minors during curfew hours; (c) deprive
minors of the right to liberty and the right to travel without substantive due process; and (d) deprive parents of their
natural and primary right in rearing the youth without substantive due process.11 In addition, petitioners assert that
the Manila Ordinance contravenes RA 9344, as amended by RA 10630.12
More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory enforcement
as there are no clear provisions or detailed standards on how law enforcers should apprehend and properly
determine the age of the alleged curfew violators.13 They further argue that the law enforcer's apprehension
depends only on his physical assessment, and, thus, subjective and based only on the law enforcer's visual
assessment of the alleged curfew violator.14
While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities exempted from
the operation of the imposed curfews, i.e., exemption of working students or students with evening class, they
contend that the lists of exemptions do not cover the range and breadth of legitimate activities or reasons as to why
minors would be out at night, and, hence, proscribe or impair the legitimate activities of minors during curfew
hours.15
Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of the right to
liberty and the right to travel without substantive due process;16 and (b) fail to pass the strict scrutiny test, for not
being narrowly tailored and for employing means that bear no reasonable relation to their purpose.17 They argue
that the prohibition of minors on streets during curfew hours will not per se protect and promote the social and moral
welfare of children of the community.18
Furthermore, petitioners claim that the Manila Ordinance, particularly Section 419 thereof, contravenes Section 57-
A20 of RA 9344, as amended, given that the cited curfew provision imposes on minors the penalties of imprisonment,
reprimand, and admonition. They contend that the imposition of penalties contravenes RA 9344's express command
that no penalty shall be imposed on minors for curfew violations.21
Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the parents'
prerogative to impose them in the exercise of their natural and primary right in the rearing of the youth, and that
even if a compelling interest exists, less restrictive means are available to achieve the same. In this regard, they
suggest massive street lighting programs, installation of CCTV s (closed-circuit televisions) in public streets, and
regular visible patrols by law enforcers as other viable means of protecting children and preventing crimes at night.
They further opine that the government can impose more reasonable sanctions, i.e., mandatory parental counseling
and education seminars informing the parents of the reasons behind the curfew, and that imprisonment is too harsh
a penalty for parents who allowed their children to be out during curfew hours.22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances are
unconstitutional.
The Court's Ruling
The petition is partly granted.
I.
At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the dismissal of the
petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of the Rules of Court to assail the
constitutionality of the Curfew Ordinances; (b) petitioners' direct resort to the Court, contrary to the hierarchy of
courts doctrine; and (c) the lack of actual controversy and standing to warrant judicial review.23
A. Propriety of the Petition for
Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."24 Section 1, Article VIII of the 1987 Constitution reads:
ARTICLE VIII
JUDICIAL DEPARTMENT
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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. (Emphasis and underscoring supplied)
Case law explains that the present Constitution has "expanded the concept of judicial power, which up
to then was confined to its traditional ambit of settling actual controversies involving rights that were
legally demandable and enforceable."25
In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the Court "are the
remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government may be determined under the Constitution."27 It was explained that "
[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are necessarily broader in scope and
reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a
tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions, but also to set right,
undo[,] and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any
branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1,
[Article VIII of the 1987 Constitution cited above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc.,29 it
was expounded that "[ m ]eanwhile that no specific procedural rule has been promulgated to enforce [the]
'expanded' constitutional definition of judicial power and because of the commonality of 'grave abuse of discretion'
as a ground for review under Rule 65 and the courts' expanded jurisdiction, the Supreme Court - based on its power
to relax its rules - allowed Rule 65 to be used as the medium for petitions invoking the courts' expanded jurisdiction[.
]"30
In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of Quezon City,
Manila, and Navotas in the exercise of their delegated legislative powers on the ground that these ordinances
violate the Constitution, specifically, the provisions pertaining to the right to travel of minors, and the right of parents
to rear their children. They also claim that the Manila Ordinance, by imposing penalties against minors, conflicts with
RA 9344, as amended, which prohibits the imposition of penalties on minors for status offenses. It has been held
that "[t]here is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias. "31 In light
of the foregoing, petitioners correctly availed of the remedies of certiorari and prohibition, although these
governmental actions were not made pursuant to any judicial or quasi-judicial function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of legislative and
executive enactments, the next question to be resolved is whether or not petitioners' direct resort to this Court is
justified.
The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court. The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals
[(CA)] and the [Regional Trial Courts], a direct invocation of this Court's jurisdiction is allowed when there are
special and important reasons therefor, clearly and especially set out in the petition[.]"32 This Court is tasked
to resolve "the issue of constitutionality of a law or regulation at the first instance [if it] is of paramount
importance and immediately affects the social, economic, and moral well-being of the people,"33 as in this
case. Hence, petitioners' direct resort to the Court is justified.
C. Requisites of Judicial Review.
"The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for
judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise of judicial power;
(b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c)
the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the very lis mota of the case."34 In this case, respondents assail the existence of the first two (2) requisites.
1. Actual Case or Controversy.
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"Basic in the exercise of judicial power - whether under the traditional or in the expanded setting - is the presence of
an actual case or controversy."35 "[A]n actual case or controversy is one which 'involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.' In other words, 'there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."36 According to recent jurisprudence, in the Court's
exercise of its expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by merely
requiring a prima facie showing of grave abuse of discretion in the assailed governmental act."37
"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a
case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished
or performed by either branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained
of."38
Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case given the
evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair the minors' and
parents' constitutional rights, and whether the Manila Ordinance goes against the provisions of RA 9344. Based on
their asseverations, petitioners have - as will be gleaned from the substantive discussions below - conveyed a prima
facie case of grave abuse of discretion, which perforce impels this Court to exercise its expanded jurisdiction. The
case is likewise ripe for adjudication, considering that the Curfew Ordinances were being implemented until the
Court issued the TRO39 enjoining their enforcement. The purported threat or incidence of injury is, therefore, not
merely speculative or hypothetical but rather, real and apparent.
2. Legal Standing.
"The question of locus standi or legal standing focuses on the determination of whether those assailing the
governmental act have the right of appearance to bring the matter to the court for adjudication. [Petitioners] must
show that they have a personal and substantial interest in the case, such that they have sustained or are in
immediate danger of sustaining, some direct injury as a consequence of the enforcement of the challenged
governmental act."40 "' [I]nterest' in the question involved must be material - an interest that is in issue and will be
affected by the official act- as distinguished from being merely incidental or general."41
"The gist of the question of [legal] standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions. Unless a person is injuriously affected
in any of his constitutional rights by the operation of statute or ordinance, he has no standing."42
As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights, namely: (1) the
right of minors to freely travel within their respective localities; and (2) the primary right of parents to rear their
children. Related to the first is the purported conflict between RA 9344, as amended, and the penal provisions of the
Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to raise the issue
affecting the minor's right to travel,43 because: (a) she was still a minor at the time the petition was filed before this
Court,44 and, hence, a proper subject of the Curfew Ordinances; and (b) as alleged, she travels from Manila to
Quezon City at night after school and is, thus, in imminent danger of apprehension by virtue of the Curfew
Ordinances. On the other hand, petitioners Joanne Rose Sace Lim, John Arvin Navarro Buenaagua, Ronel
Baccutan (Ronel), and Mark Leo Delos Reyes (Mark Leo) admitted in the petition that they are all of legal age, and
therefore, beyond the ordinances' coverage. Thus, they are not proper subjects of the Curfew Ordinances, for which
they could base any direct injury as a consequence thereof.
None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the parents' right
to rear their children as they have not shown that they stand before this Court as parent/s and/or guardian/s whose
constitutional parental right has been infringed. It should be noted that Clarissa is represented by her father, Julian
Villegas, Jr. (Mr. Villegas), who could have properly filed the petition for himself for the alleged violation of his
parental right. But Mr. Villegas did not question the Curfew Ordinances based on his primary right as a parent as he
only stands as the representative of his minor child, Clarissa, whose right to travel was supposedly infringed.
As for SPARK, it is an unincorporated association and, consequently, has no legal personality to bring an action in
court.45 Even assuming that it has the capacity to sue, SPARK still has no standing as it failed to allege that it was
authorized by its members who were affected by the Curfew Ordinances, i.e., the minors, to file this case on their
behalf.
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Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy. More particularly,
Clarissa has standing only on the issue of the alleged violation of the minors' right to travel, but not on the alleged
violation of the parents' right.
These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the petitioners are
concerned, in view of the transcendental importance of the issues involved in this case. "In a number of cases, this
Court has taken a liberal stance towards the requirement of legal standing, especially when paramount interest is
involved. Indeed, when those who challenge the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound discretion and take cognizance of the suit. It
may do so in spite of the inability of the petitioners to show that they have been personally injured by the operation
of a law or any other government act."46
This is a case of first impression in which the constitutionality of juvenile curfew ordinances is placed under judicial
review. Not only is this Court asked to determine the impact of these issuances on the right of parents to rear their
children and the right of minors to travel, it is also requested to determine the extent of the State's authority to
regulate these rights in the interest of general welfare. Accordingly, this case is of overarching significance to the
public, which, therefore, impels a relaxation of procedural rules, including, among others, the standing requirement.
That being said, this Court now proceeds to the substantive aspect of this case.
II.
A. Void for Vagueness.
Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their children, this Court
must first tackle petitioners' contention that the Curfew Ordinances are void for vagueness.
In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient enforcement
parameters, which leaves the enforcing authorities with unbridled discretion to carry out their provisions. They claim
that the lack of procedural guidelines in these issuances led to the questioning of petitioners Ronel and Mark Leo,
even though they were already of legal age. They maintain that the enforcing authorities apprehended the
suspected curfew offenders based only on their physical appearances and, thus, acted arbitrarily. Meanwhile,
although they conceded that the Quezon City Ordinance requires enforcers to determine the age of the child, they
submit that nowhere does the said ordinance require the law enforcers to ask for proof or identification of the child to
show his age.47
The arguments are untenable.
"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution
in two (2) respects: (1) it violates due process for failure to accord persons, especially the parties targeted by
it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle."48
In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that they do not
properly identify any provision in any of the Curfew Ordinances, which, because of its vague terminology, fails to
provide fair warning and notice to the public of what is prohibited or required so that one may act accordingly.49 The
void for vagueness doctrine is premised on due process considerations, which are absent from this particular
claim. In one case, it was opined that:
[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural
due process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due
process uncertainty" involves cases where the statutory language was so obscure that it failed to give
adequate warning to those subject to its prohibitions as well as to provide proper standards for
adjudication. Such a definition encompasses the vagueness doctrine. This perspective rightly
integrates the vagueness doctrine with the due process clause, a necessary interrelation since there is
no constitutional provision that explicitly bars statutes that are "void-for-vagueness."50
Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities in the proper
apprehension of suspected curfew offenders. They do not assert any confusion as to what conduct the subject
ordinances prohibit or not prohibit but only point to the ordinances' lack of enforcement guidelines. The
mechanisms related to the implementation of the Curfew Ordinances are, however, matters of policy that are best
left for the political branches of government to resolve. Verily, the objective of curbing unbridled enforcement is not
the sole consideration in a void for vagueness analysis; rather, petitioners must show that this perceived danger of
unbridled enforcement stems from an ambiguous provision in the law that allows enforcement authorities to second-
guess if a particular conduct is prohibited or not prohibited. In this regard, that ambiguous provision of law
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contravenes due process because agents of the government cannot reasonably decipher what conduct the law
permits and/or forbids. In Bykofsky v. Borough of Middletown, 51 it was ratiocinated that:
A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on ad hoc and subjective basis, and vague standards result in erratic and arbitrary
application based on individual impressions and personal predilections.52
As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of the Curfew
Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be determined. Thus,
without any correlation to any vague legal provision, the Curfew Ordinances cannot be stricken down under the void
for vagueness doctrine.
Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected curfew
violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law enforcement
agents are still bound to follow the prescribed measures found in statutory law when implementing ordinances.
Specifically, RA 9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based
on information from the child himself/herself, testimonies of other persons, the physical appearance of the
child and other relevant evidence. (Emphases supplied)
This provision should be read in conjunction with · the Curfew Ordinances because RA 10630 (the law that
amended RA 9344) repeals all ordinances inconsistent with statutory law.53 Pursuant to Section 57-A of RA 9344, as
amended by RA 10630,54 minors caught in violation of curfew ordinances are children at risk and, therefore,
covered by its provisions.55 It is a long-standing principle that "[c]onformity with law is one of the essential
requisites for the validity of a municipal ordinance."56 Hence, by necessary implication, ordinances should be
read and implemented in conjunction with related statutory law.
Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to be a minor
violating the curfew, may therefore prove that he is beyond the application of the Curfew Ordinances by simply
presenting any competent proof of identification establishing their majority age. In the absence of such proof, the law
authorizes enforcement authorities to conduct a visual assessment of the suspect, which - needless to state - should
be done ethically and judiciously under the circumstances. Should law enforcers disregard these rules, the remedy
is to pursue the appropriate action against the erring enforcing authority, and not to have the ordinances invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.
B. Right of Parents to Rear their
Children.
Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of their natural and
primary right in the rearing of the youth without substantive due process. In this regard, they assert that this right
includes the right to determine whether minors will be required to go home at a certain time or will be allowed to stay
late outdoors. Given that the right to impose curfews is primarily with parents and not with the State, the latter's
interest in imposing curfews cannot logically be compelling.57
Petitioners' stance cannot be sustained.
Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents in the
rearing of their children:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the support of
the Government. (Emphasis and underscoring supplied.)
As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for civic efficiency and
the development of their moral character are characterized not only as parental rights, but also as parental duties.
This means that parents are not only given the privilege of exercising their authority over their children; they are
equally obliged to exercise this authority conscientiously. The duty aspect of this provision is a reflection of the
State's independent interest to ensure that the youth would eventually grow into free, independent, and well-
developed citizens of this nation. For indeed, it is during childhood that minors are prepared for additional
obligations to society. "[T]he duty to prepare the child for these [obligations] must be read to include the
inculcation of moral standards, religious beliefs, and elements of good citizenship."58 "This affirmative
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process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into
mature, socially responsible citizens."59
By history and tradition, "the parental role implies a substantial measure of authority over one's children."60 In
Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that "constitutional interpretation
has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their
children is basic in the structure of our society."62 As in our Constitution, the right and duty of parents to rear their
children is not only described as "natural," but also as "primary." The qualifier "primary" connotes the parents'
superior right over the State in the upbringing of their children.63 The rationale for the State's deference to
parental control over their children was explained by the US Supreme Court in Bellotti v. Baird (Bellotti),64 as follows:
[T]he guiding role of parents in their upbringing of their children justifies limitations on the freedoms of
minors. The State commonly protects its youth from adverse governmental action and from their own
immaturity by requiring parental consent to or involvement in important decisions by minors. But an
additional and more important justification for state deference to parental control over children
is that "the child is not [a) mere creature of the State; those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and prepare him for additional
obligations."65 (Emphasis and underscoring supplied)
While parents have the primary role in child-rearing, it should be stressed that "when actions concerning the
child have a relation to the public welfare or the well-being of the child, the [Sltate may act to promote these
legitimate interests."66 Thus, "[i]n cases in which harm to the physical or mental health of the child or to
public safety, peace, order, or welfare is demonstrated, these legitimate state interests may override the
parents' qualified right to control the upbringing of their children."67
As our Constitution itself provides, the State is mandated to support parents in the exercise of these rights and
duties. State authority is therefore, not exclusive of, but rather, complementary to parental supervision. In
Nery v. Lorenzo,68 this Court acknowledged the State's role as parens patriae in protecting minors, viz. :
[Where minors are involved, the State acts as parens patriae. To it is cast the duty of protecting
the rights of persons or individual who because of age or incapacity are in an unfavorable
position, vis-a-vis other parties. Unable as they are to take due care of what concerns them, they
have the political community to look after their welfare. This obligation the state must live up to. It
cannot be recreant to such a trust. As was set forth in an opinion of the United States Supreme Court:
"This prerogative of parens patriae is inherent in the supreme power of every State, x x x."69
(Emphases and underscoring supplied)
As parens patriae, the State has the inherent right and duty to aid parents in the moral development of their
children,70 and, thus, assumes a supporting role for parents to fulfill their parental obligations. In Bellotti, it was held
that "[I]egal restriction on minors, especially those supportive of the parental role, may be important to the child's
chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.
Under the Constitution, the State can properly conclude that parents and others, teachers for example, who
have the primary responsibility for children's well-being are entitled to the support of the laws designed to
aid discharge of that responsibility."71
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of promoting their
children's well-being. As will be later discussed at greater length, these ordinances further compelling State interests
(particularly, the promotion of juvenile safety and the prevention of juvenile crime), which necessarily entail
limitations on the primary right of parents to rear their children. Minors, because of their peculiar vulnerability and
lack of experience, are not only more exposed to potential physical harm by criminal elements that operate during
the night; their moral well-being is likewise imperiled as minor children are prone to making detrimental decisions
during this time.72
At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are not - whether
actually or constructively (as will be later discussed) - accompanied by their parents. This serves as an explicit
recognition of the State's deference to the primary nature of parental authority and the importance of parents' role in
child-rearing. Parents are effectively given unfettered authority over their children's conduct during curfew hours
when they are able to supervise them. Thus, in all actuality, the only aspect of parenting that the Curfew
Ordinances affects is the parents' prerogative to allow minors to remain in public places without parental
accompaniment during the curfew hours. 73 In this respect, the ordinances neither dictate an over-all plan of
discipline for the parents to apply to their minors nor force parents to abdicate their authority to influence
or control their minors' activities.74 As such, the Curfew Ordinances only amount to a minimal - albeit reasonable
- infringement upon a parent's right to bring up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend more time at
home. Consequently, this situation provides parents with better opportunities to take a more active role in their
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children's upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the US court observed that the city
government "was entitled to believe x x x that a nocturnal curfew would promote parental involvement in a child's
upbringing. A curfew aids the efforts of parents who desire to protect their children from the perils of the street but
are unable to control the nocturnal behavior of those children."76 Curfews may also aid the "efforts of parents who
prefer their children to spend time on their studies than on the streets."77 Reason dictates that these realities
observed in Schleifer are no less applicable to our local context. Hence, these are additional reasons which justify
the impact of the nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents' right to rear their
children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right to travel. They
claim that the liberty to travel is a fundamental right, which, therefore, necessitates the application of the strict
scrutiny test. Further, they submit that even if there exists a compelling State interest, such as the prevention of
juvenile crime and the protection of minors from crime, there are other less restrictive means for achieving the
government's interest.78 In addition, they posit that the Curfew Ordinances suffer from overbreadth by proscribing or
impairing legitimate activities of minors during curfew hours.79
Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that petitioners have
not claimed any transgression of their rights to free speech or any inhibition of speech-related conduct. In Southern
Hemisphere Engagement Network, Inc. v. AntiTerrorism Council(Southern Hemisphere),80 this Court explained that
"the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of
a facial challenge, applicable only to free speech cases,"81 viz.:
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a
statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to
facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is
the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law's "very existence may
cause others not before the court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of those third
parties.82 (Emphases and underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free speech claims, the
Court, in at least two [(2)] cases, observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment,83 and that claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks,84 it was held
that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the 'transcendent
value to all society of constitutionally protected expression. "'85
In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges can only be
raised on the basis of overbreadth and not on vagueness. Southern Hemisphere demonstrated how vagueness
relates to violations of due process rights, whereas facial challenges are raised on the basis of overbreadth and
limited to the realm of freedom of expression."87
That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there being no
claimed curtailment of free speech. On the contrary, however, this Court finds proper to examine the assailed
regulations under the strict scrutiny test.
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The right to travel is recognized and guaranteed as a fundamental right88 under Section 6, Article III of the 1987
Constitution, to wit:
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law. (Emphases and underscoring supplied)
Jurisprudence provides that this right refers to the right to move freely from the Philippines to other countries or
within the Philippines.89 It is a right embraced within the general concept of liberty.90 Liberty - a birthright of every
person - includes the power of locomotion91 and the right of citizens to be free to use their faculties in lawful ways
and to live and work where they desire or where they can best pursue the ends of life.92
The right to travel is essential as it enables individuals to access and exercise their other rights, such
as the rights to education, free expression, assembly, association, and religion.93 The inter-relation of
the right to travel with other fundamental rights was briefly rationalized in City of Maquoketa v.
Russell,94 as follows:
Whenever the First Amendment rights of freedom of religion, speech, assembly, and association
require one to move about, such movement must necessarily be protected under the First Amendment.
Restricting movement in those circumstances to the extent that First Amendment Rights cannot
be exercised without violating the law is equivalent to a denial of those rights. One court has
eloquently pointed this out:
We would not deny the relatedness of the rights guaranteed by the First Amendment to freedom
of travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom
to worship is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of
assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the
streets of a community, opportunities for freedom of speech are sharply limited. Freedom of
movement is inextricably involved with freedoms set forth in the First Amendment. (Emphases
supplied)
Nevertheless, grave and overriding considerations of public interest justify restrictions even if made against
fundamental rights. Specifically on the freedom to move from one place to another, jurisprudence provides that this
right is not absolute.95 As the 1987 Constitution itself reads, the State96 may impose limitations on the exercise of
this right, provided that they: (1) serve the interest of national security, public safety, or public health; and (2)
are provided by law.97
The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and prevention of
juvenile crime, inarguably serve the interest of public safety. The restriction on the minor's movement and activities
within the confines of their residences and their immediate vicinity during the curfew period is perceived to reduce
the probability of the minor becoming victims of or getting involved in crimes and criminal activities. As to the second
requirement, i.e., that the limitation "be provided by law," our legal system is replete with laws emphasizing the
State's duty to afford special protection to children, i.e., RA 7610,98 as amended, RA 977599 RA 9262100 RA
9851101RA 9344102 RA 10364103 RA 9211104 RA8980,105 RA9288,106 and Presidential Decree (PD) 603,107 as
amended.
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government units, through
their city or municipal councils, to set curfew hours for children. It reads:
Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew
hours for children as may be warranted by local conditions. The duty to enforce curfew ordinances
shall devolve upon the parents or guardians and the local authorities.
x x x x (Emphasis and underscoring supplied)
As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents have done in this
case) and enforce the same through their local officials. In other words, PD 603 provides sufficient statutory basis -
as required by the Constitution - to restrict the minors' exercise of the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional
rights,108 but the exercise of these rights is not co-extensive as those of adults.109 They are
always subject to the authority or custody of another, such as their parent/s and/or guardian/s, and the
State.110 As parens patriae, the State regulates and, to a certain extent, restricts the minors' exercise of
their rights, such as in their affairs concerning the right to vote,111 the right to execute contracts,112 and
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the right to engage in gainful employment.113 With respect to the right to travel, minors are required by
law to obtain a clearance from the Department of Social Welfare and Development before they can
travel to a foreign country by themselves or with a person other than their parents.114 These limitations
demonstrate that the State has broader authority over the minors' activities than over similar actions of
adults,115 and overall, reflect the State's general interest in the well-being of minors.116 Thus, the State
may impose limitations on the minors' exercise of rights even though these limitations do not generally
apply to adults.
In Bellotti,117the US Supreme Court identified three (3) justifications for the differential treatment of the minors'
constitutional rights. These are: first, the peculiar vulnerability of children; second, their inability to make
critical decisions in an informed and mature manner; and third, the importance of the parental role in child
rearing:118
[On the first reason,] our cases show that although children generally are protected by the same
constitutional guarantees against governmental deprivations as are adults, the State is entitled to
adjust its legal system to account for children's vulnerability and their needs for 'concern, ...
sympathy, and ... paternal attention.x x x.
[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the formative
years of childhood and adolescence, minors often lack the experience, perspective, and judgment
to recognize and avoid choices that could be detrimental to them. x x x.
xxxx
[On the third reason,] the guiding role of parents in the upbringing of their children justifies limitations
on the freedoms of minors. The State commonly protects its youth from adverse governmental action
and from their own immaturity by requiring parental consent to or involvement in important decisions by
minors. x x x.
xxxx
x x x Legal restrictions on minors, especially those supportive of the parental role, may be
important to the child's chances for the full growth and maturity that make eventual participation
in a free society meaningful and rewarding.119 (Emphases and underscoring supplied)
Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened dangers on the
streets to minors, as compared to adults:
A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full
maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad
range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more
especially in public places, and the possible harms arising from other activities subject to all the diverse
influences of the [streets]. It is too late now to doubt that legislation appropriately designed to reach such evils is
within the state's police power, whether against the parent's claim to control of the child or one that religious
scruples dictate contrary action.
It is true children have rights, in common with older people, in the primary use of highways. But even in such use
streets afford dangers for them not affecting adults. And in other uses, whether in work or in other things,
this difference may be magnified.121 (Emphases and underscoring supplied)
For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel rights, provided,
they are singled out on reasonable grounds.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of
classifications.122 The strict scrutiny test applies when a classification either (i) interferes with the exercise of
fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect
classes.123 The intermediate scrutiny test applies when a classification does not involve suspect classes or
fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and legitimacy.124
Lastly, the rational basis test applies to all other subjects not covered by the first two tests.125
Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our Constitution,
the strict scrutiny test126 is the applicable test.127 At this juncture, it should be emphasized that minors enjoy the
same constitutional rights as adults; the fact that the State has broader authority over minors than over adults does
not trigger the application of a lower level of scrutiny.128 In Nunez v. City of San Diego (Nunez),129 the US court
illumined that:
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Although many federal courts have recognized that juvenile curfews implicate the fundamental rights of minors, the
parties dispute whether strict scrutiny review is necessary. The Supreme Court teaches that rights are no less
"fundamental" for minors than adults, but that the analysis of those rights may differ:
Constitutional rights do not mature and come into being magically only when one attains the state-defined
age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional
1âwphi1
rights. The Court[,] indeed, however, [has long] recognized that the State has somewhat broader authority to
regulate the activities of children than of adults. xxx. Thus, minors' rights are not coextensive with the rights of adults
because the state has a greater range of interests that justify the infringement of minors' rights.
The Supreme Court has articulated three specific factors that, when applicable, warrant differential analysis of the
constitutional rights of minors and adults: x x x. The Bellotti test [however] does not establish a lower level of
scrutiny for the constitutional rights of minors in the context of a juvenile curfew. Rather, the Bellotti
framework enables courts to determine whether the state has a compelling state interest justifying greater
restrictions on minors than on adults. x x x.
x x x Although the state may have a compelling interest in regulating minors differently than adults, we do
not believe that [a] lesser degree of scrutiny is appropriate to review burdens on minors' fundamental
rights. x x x.
According, we apply strict scrutiny to our review of the ordinance. x x x.130 (Emphases supplied)
The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of minors as
enumerated in Bellotti vis-a-vis the State's duty as parenspatriae to protect and preserve their well-being with the
compelling State interests justifying the assailed government act. Under the strict scrutiny test, a legislative
classification that interferes with the exercise of a fundamental right or operates to the disadvantage of a suspect
class is presumed unconstitutional.131 Thus, the government has the burden of proving that the classification
(1) is necessary to achieve a compelling State interest, and (i1) is the least restrictive means to protect such
interest or the means chosen is narrowly tailored to accomplish the interest.132
a. Compelling State Interest.
Jurisprudence holds that compelling State interests include constitutionally declared policies.133 This Court has
ruled that children's welfare and the State's mandate to protect and care for them as parenspatriae
constitute compelling interests to justify regulations by the State.134 It is akin to the paramount interest of the
state for which some individual liberties must give way.135 As explained in Nunez, the Bellotti framework shows that
the State has a compelling interest in imposing greater restrictions on minors than on adults. The limitations on
minors under Philippine laws also highlight this compelling interest of the State to protect and care for their welfare.
In this case, respondents have sufficiently established that the ultimate objective of the Curfew Ordinances is to
keep unsupervised minors during the late hours of night time off of public areas, so as to reduce - if not totally
eliminate - their exposure to potential harm, and to insulate them against criminal pressure and influences which
may even include themselves. As denoted in the "whereas clauses" of the Quezon City Ordinance, the State, in
imposing nocturnal curfews on minors, recognizes that:
[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance,
education, and moral development, which [lead] them into exploitation, drug addiction, and become
vulnerable to and at the risk of committing criminal offenses;
xxxx
[d] as a consequence, most of minor children become out-of-school youth, unproductive by-standers,
street children, and member of notorious gangs who stay, roam around or meander in public or private
roads, streets or other public places, whether singly or in groups without lawful purpose or justification;
xxxx
[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming
around, loitering or wandering in the evening are the frequent personalities involved in various
infractions of city ordinances and national laws;
[g] it is necessary in the interest of public order and safety to regulate the movement of minor children
during night time by setting disciplinary hours, protect them from neglect, abuse or cruelty and
exploitation, and other conditions prejudicial or detrimental to their development;
[h] to strengthen and support parental control on these minor children, there is a need to put a restraint
on the tendency of growing number of youth spending their nocturnal activities wastefully, especially in
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the face of the unabated rise of criminality and to ensure that the dissident elements of society are not
provided with potent avenues for furthering their nefarious activities[.]136
The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City Council to support
its passage of the curfew ordinance subject of that case, may serve as a guidepost to our own eatment of the
present case. Significantly, in Schleifer, the US court recognized the entitlement of elected bodies to implement
policies for a safer community, in relation to the proclivity of children to make dangerous and potentially life-shaping
decisions when left unsupervised during the late hours of night:
Charlottesville was constitutionally justified in believing that its curfew would materially assist its first
stated interest-that of reducing juvenile violence and crime. The City Council acted on the basis of
information from many sources, including records from Charlottesville's police department, a survey of
public opinion, news reports, data from the United States Department of Justice, national crime reports,
and police reports from other localities. On the basis of such evidence, elected bodies are entitled
to conclude that keeping unsupervised juveniles off the streets late at night will make for a
safer community. The same streets may have a more volatile and less wholesome character at
night than during the day. Alone on the streets at night children face a series of dangerous and
potentially life-shaping decisions. Drug dealers may lure them to use narcotics or aid in their sale.
Gangs may pressure them into membership or participation in violence. "[D]uring the formative years of
childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize
and avoid choices that could be detrimental to them." Those who succumb to these criminal
influences at an early age may persist in their criminal conduct as adults. Whether we as judges
subscribe to these theories is beside the point. Those elected officials with their finger on the pulse of
their home community clearly did. In attempting to reduce through its curfew the opportunities for
children to come into contact with criminal influences, the City was directly advancing its first
objective of reducing juvenile violence and crime.138 (Emphases and underscoring supplied;
citations omitted)
Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila presented
statistical data in their respective pleadings showing the alarming prevalence of crimes involving juveniles, either as
victims or perpetrators, in their respective localities.139
Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant to their police
power under the general welfare clause.140 In this light, the Court thus finds that the local governments have not
only conveyed but, in fact, attempted to substantiate legitimate concerns on public welfare, especially with
respect to minors. As such, a compelling State interest exists for the enactment and enforcement of the Curfew
Ordinances.
With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if the restrictions
set forth in· the Curfew Ordinances are narrowly tailored or provide the least restrictive means to address the cited
compelling State interest - the second requirement of the strict scrutiny test.
b. Least Restrictive Means/ Narrowly Drawn.
The second requirement of the strict scrutiny test stems from the fundamental premise that citizens should not be
hampered from pursuing legitimate activities in the exercise of their constitutional rights. While rights may be
restricted, the restrictions must be minimal or only to the extent necessary to achieve the purpose or to address the
State's compelling interest. When it is possible for governmental regulations to be more narrowly drawn to
avoid conflicts with constitutional rights, then they must be so narrowly drawn. 141
Although treated differently from adults, the foregoing standard applies to regulations on minors as they are still
accorded the freedom to participate in any legitimate activity, whether it be social, religious, or civic.142 Thus, in the
present case, each of the ordinances must be narrowly tailored as to ensure minimal constraint not only on the
minors' right to travel but also on their other constitutional rights.143
In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being narrowly drawn,
resulting in unnecessary curtailment of minors' rights to freely exercise their religion and to free speech.145 It
observed that:
The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass at
the local Roman Catholic Church or Christmas Eve services at the various local Protestant
Churches. It would likewise prohibit them from attending the New [Year's] Eve watch services at the
various churches. Likewise it would prohibit grandparents, uncles, aunts or adult brothers and sisters
from taking their minor relatives of any age to the above mentioned services. x x x.
xxxx
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Under the ordinance, during nine months of the year a minor could not even attend the city council
meetings if they ran past 10:30 (which they frequently do) to express his views on the necessity to
repeal the curfew ordinance, clearly a deprivation of his First Amendment right to freedom of
speech.
xxxx
[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very narrowly
drawn ordinance of many pages with eleven exceptions and was very carefully drafted in an attempt to
pass constitutional muster. It specifically excepted [the] exercise of First Amendment rights, travel
in a motor vehicle and returning home by a direct route from religious, school, or voluntary
association activities. (Emphases supplied)
After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the Quezon City
Ordinance meets the above-discussed requirement, while the Manila and Navotas Ordinances do not.
The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a) minors
accompanied by their parents, family members of legal age, or guardian; (b) those running lawful errands such as
buying of medicines, using of telecommunication facilities for emergency purposes and the like; (c) night school
students and those who, by virtue of their employment, are required in the streets or outside their residence after
10:00 p.m.; and (d) those working at night.146
For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes; (b) those
working at night; (c) those who attended a school or church activity, in coordination with a specific barangay office;
(d) those traveling towards home during the curfew hours; (e) those running errands under the supervision of their
parents, guardians, or persons of legal age having authority over them; (j) those involved in accidents, calamities,
and the like. It also exempts minors from the curfew during these specific occasions: Christmas eve, Christmas day,
New Year's eve, New Year's day, the night before the barangay fiesta, the day of the fiesta, All Saints' and All Souls'
Day, Holy Thursday, Good Friday, Black Saturday, and Easter Sunday.147
This Court observes that these two ordinances are not narrowly drawn in that their exceptions are inadequate and
therefore, run the risk of overly restricting the minors' fundamental freedoms. To be fair, both ordinances protect the
rights to education, to gainful employment, and to travel at night from school or work.148 However, even with those
safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the
reasonable exercise of the minors' rights of association, free exercise of religion, rights to peaceably assemble, and
of free expression, among others.
The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected liberties. The
Navotas Ordinance is apparently more protective of constitutional rights than the Manila Ordinance; nonetheless, it
still provides insufficient safeguards as discussed in detail below:
First, although it allows minors to engage in school or church activities, it hinders them from engaging in legitimate
non-school or nonchurch activities in the streets or going to and from such activities; thus, their freedom of
association is effectively curtailed. It bears stressing that participation in legitimate activities of organizations, other
than school or church, also contributes to the minors' social, emotional, and intellectual development, yet, such
participation is not exempted under the Navotas Ordinance.
Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and Christmas day, it
effectively prohibits minors from attending traditional religious activities (such as simbang gabi) at night without
accompanying adults, similar to the scenario depicted in Mosier.149 This legitimate activity done pursuant to the
minors' right to freely exercise their religion is therefore effectively curtailed.
Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or attend city
council meetings to voice out their concerns in line with their right to peaceably assemble and to free expression.
Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside curfew hours, but
the Court finds no reason to prohibit them from participating in these legitimate activities during curfew hours. Such
proscription does not advance the State's compelling interest to protect minors from the dangers of the streets at
night, such as becoming prey or instruments of criminal activity. These legitimate activities are merely hindered
without any reasonable relation to the State's interest; hence, the Navotas Ordinance is not narrowly drawn. More
so, the Manila Ordinance, with its limited exceptions, is also not narrowly drawn.
In sum, the Manila and Navotas Ordinances should be completely stricken down since their exceptions, which are
essentially determinative of the scope and breadth of the curfew regulations, are inadequate to ensure protection of
the above-mentioned fundamental rights. While some provisions may be valid, the same are merely ancillary
thereto; as such, they cannot subsist independently despite the presence150 of any separability clause.151
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The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently safeguards the
minors' constitutional rights. It provides the following exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by
the provisions of this ordinance;
(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation ceremony, religious mass, and/or
other extra-curricular activities of their school or organization wherein their attendance
are required or otherwise indispensable, or when such minors are out and unable to go
home early due to circumstances beyond their control as verified by the proper
authorities concerned; and
(c) Those attending to, or in experience of, an emergency situation such as conflagration,
earthquake, hospitalization, road accident, law enforcers encounter, and similar incidents[;]
(d) When the minor is engaged in an authorized employment activity, or going to or returning
home from the same place of employment activity without any detour or stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no violation
of this Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence attending an official school, religious,
recreational, educational, social, community or other similar private activity sponsored by
the city, barangay, school, or other similar private civic/religious organization/group
(recognized by the community) that supervises the activity or when the minor is going to
or returning home from such activity, without any detour or stop; and
(h) When the minor can present papers certifying that he/she is a student and was dismissed
from his/her class/es in the evening or that he/she is a working student.152 (Emphases and
underscoring supplied)
As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance is more
narrowly drawn to sufficiently protect the minors' rights of association, free exercise of religion, travel, to peaceably
assemble, and of free expression.
Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of these
aforementioned rights. These items uphold the right of association by enabling minors to attend both official
and extra-curricular activities not only of their school or church but also of other legitimate organizations.
The rights to peaceably assemble and of free expression are also covered by these items given that the
minors' attendance in the official activities of civic or religious organizations are allowed during the curfew
hours. Unlike in the Navotas Ordinance, the right to the free exercise of religion is sufficiently safeguarded in the
Quezon City Ordinance by exempting attendance at religious masses even during curfew hours. In relation to their
right to ravel, the ordinance allows the minor-participants to move to and from the places where these
activities are held. Thus, with these numerous exceptions, the Quezon City Ordinance, in truth, only prohibits
unsupervised activities that hardly contribute to the well-being of minors who publicly loaf and loiter within
the locality at a time where danger is perceivably more prominent.
To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful errands or
engage in legitimate activities during the night, notwithstanding curfew hours. As astutely observed by Senior
Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen during the deliberations on this
case, parental permission is implicitly considered as an exception found in Section 4, item (a) of the Quezon City
Ordinance, i.e., "[t]hose accompanied by their parents or guardian", as accompaniment should be understood not
only in its actual but also in its constructive sense. As the Court sees it, this should be the reasonable construction of
this exception so as to reconcile the juvenile curfew measure with the basic premise that State interference is not
superior but only complementary to parental supervision. After all, as the Constitution itself prescribes, the parents'
right to rear their children is not only natural but primary.
Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is dealing with the
welfare of minors who are presumed by law to be incapable of giving proper consent due to their incapability to fully
understand the import and consequences of their actions. In one case it was observed that:
A child cannot give consent to a contract under our civil laws. This is on the rationale that she can
easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or import
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of her actions. The State, as parenspatriae, is under the obligation to minimize the risk of harm to those
who, because of their minority, are as yet unable to take care of themselves fully. Those of tender years
deserve its protection.153
Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and balancing the same
against the State's compelling interest to promote juvenile safety and prevent juvenile crime, this Court finds that the
curfew imposed under the Quezon City Ordinance is reasonably justified with its narrowly drawn exceptions and
hence, constitutional. Needless to say, these exceptions are in no way limited or restricted, as the State, in
accordance with the lawful exercise of its police power, is not precluded from crafting, adding, or modifying
exceptions in similar laws/ordinances for as long as the regulation, overall, passes the parameters of scrutiny as
applied in this case.
D. Penal Provisions of the Manila Ordinance.
Going back to the Manila Ordinance, this Court deems it proper - as it was raised - to further discuss the validity of
its penal provisions in relation to RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the parent/s or guardian under Section 8 thereof,154 does
not impose any penalty on the minors. For its part, the Navotas Ordinance requires the minor, along with his or her
parent/s or guardian/s, to render social civic duty and community service either in lieu of - should the parent/s or
guardian/s of the minor be unable to pay the fine imposed - or in addition to the fine imposed therein.155 Meanwhile,
the Manila Ordinance imposed various sanctions to the minor based on the age and frequency of violations,
to wit:
SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
sanctioned/punished as follows:
(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist of a
REPRIMAND for the youth offender and ADMONITION to the offender's parent, guardian or
person exercising parental authority.
(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age, the
sanction/penalty shall be:
1. For the FIRST OFFENSE, Reprimand and Admonition;
2. For the SECOND OFFENSE, Reprimand and Admonition, and a warning about the
legal impostitions in case of a third and subsequent violation; and
3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of one (1) day to ten
(10) days, or a Fine of TWO THOUSAND PESOS (Php2,000.00), or both at the
discretion of the Court, PROVIDED, That the complaint shall be filed by the
PunongBarangay with the office of the City Prosecutor.156 (Emphases and underscoring
supplied).
Thus springs the question of whether local governments could validly impose on minors these sanctions - i.e., (a)
community . service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently, Sections 57 and
57-A of RA 9344, as amended, prohibit the imposition of penalties on minors for status offenses such as
curfew violations, viz.:
SEC. 57. Status Offenses. - Any conduct not considered an offense or not penalized if committed
by an adult shall not be considered an offense and shall not be punished if committed by a
child.
SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local governments
concerning juvenile status offenses such as but not limited to, curfew violations, truancy, parental
disobedience, anti-smoking and anti-drinking laws, as well as light offenses and misdemeanors against
public order or safety such as, but not limited to, disorderly conduct, public scandal, harassment,
drunkenness, public intoxication, criminal nuisance, vandalism, gambling, mendicancy, littering, public
urination, and trespassing, shall be for the protection of children. No penalty shall be imposed on
children for said violations, and they shall instead be brought to their residence or to any barangay
official at the barangay hall to be released to the custody of their parents. Appropriate intervention
programs shall be provided for in such ordinances. The child shall also be recorded as a "child at
risk" and not as a "child in conflict with the law." The ordinance shall also provide for intervention
programs, such as counseling, attendance in group activities for children, and for the parents,
attendance in parenting education seminars. (Emphases and underscoring supplied.)
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To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of minors, when the
similar conduct of adults are not considered as an offense or penalized (i.e., status offenses). Instead, what they
prohibit is the imposition of penalties on minors for violations of these regulations. Consequently, the enactment of
curfew ordinances on minors, without penalizing them for violations thereof, is not violative of Section 57-A.
"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of imprisonment or fine";158 "[p
]unishment imposed by lawful authority upon a person who commits a deliberate or negligent act."159 Punishment, in
tum, is defined as "[a] sanction - such as fine, penalty, confinement, or loss of property, right, or privilege - assessed
against a person who has violated the law."160
The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in violation of
the regulations are without legal consequences. Section 57-A thereof empowers local governments to adopt
appropriate intervention programs, such as community-based programs161 recognized under Section 54162 of the
same law.
In this regard, requiring the minor to perform community service is a valid form of intervention program that a local
government (such as Navotas City in this case) could appropriately adopt in an ordinance to promote the welfare of
minors. For one, the community service programs provide minors an alternative mode of rehabilitation as they
promote accountability for their delinquent acts without the moral and social stigma caused by jail detention.
In the same light, these programs help inculcate discipline and compliance with the law and legal orders. More
importantly, they give them the opportunity to become productive members of society and thereby promote their
integration to and solidarity with their community.
The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57 and 57-A of RA
9344 as it is merely a formal way of giving warnings and expressing disapproval to the minor's misdemeanor.
Admonition is generally defined as a "gentle or friendly reproof' or "counsel or warning against fault or oversight."163
The Black's Law Dictionary defines admonition as "[a]n authoritatively issued warning or censure";164 while the
Philippine Law Dictionary defines it as a "gentle or friendly reproof, a mild rebuke, warning or reminder, [counseling],
on a fault, error or oversight, an expression of authoritative advice or warning."165 Notably, the Revised Rules on
Administrative Cases in the Civil Service (RRACCS) and our jurisprudence in administrative cases explicitly declare
that "a warning or admonition shall not be considered a penalty."166
In other words, the disciplinary measures of community-based programs and admonition are clearly not penalties -
as they are not punitive in nature - and are generally less intrusive on the rights and conduct of the minor. To be
clear, their objectives are to formally inform and educate the minor, and for the latter to understand, what actions
must be avoided so as to aid him in his future conduct.
A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment imposed by the
City of Manila on the minor. Reprimand is generally defined as "a severe or formal reproof."167 The Black's Law
Dictionary defines it as "a mild form of lawyer discipline that does not restrict the lawyer's ability to practice law";168
while the Philippine Law Dictionary defines it as a "public and formal censure or severe reproof, administered to a
person in fault by his superior officer or body to which he belongs. It is more than just a warning or admonition."169 In
other words, reprimand is a formal and public pronouncement made to denounce the error or violation committed, to
sharply criticize and rebuke the erring individual, and to sternly warn the erring individual including the public against
repeating or committing the same, and thus, may unwittingly subject the erring individual or violator to unwarranted
censure or sharp disapproval from others. In fact, the RRACCS and our jurisprudence explicitly indicate that
reprimand is a penalty,170 hence, prohibited by Section 57-A of RA 9344, as amended.
Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in our various
criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as amended, evidently prohibits.
As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that "[n]o penalty shall
be imposed on children for x x x violations [of] juvenile status offenses]." Thus, for imposing the sanctions of
reprimand, fine, and/or imprisonment on minors for curfew violations, portions of Section 4 of the Manila Ordinance
directly and irreconcilably conflict with the clear language of Section 57-A of RA 9344, as amended, and hence,
invalid. On the other hand, the impositions of community service programs and admonition on the minors are
allowed as they do not constitute penalties.
CONCLUSION
In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the strict scrutiny test -
that is, that the State has sufficiently shown a compelling interest to promote juvenile safety and prevent juvenile
crime in the concerned localities, only the Quezon City Ordinance has passed the second prong of the strict scrutiny
test, as it is the only issuance out of the three which provides for the least restrictive means to achieve this interest.
In particular, the Quezon City Ordinance provides for adequate exceptions that enable minors to freely exercise their
fundamental rights during the prescribed curfew hours, and therefore, narrowly drawn to achieve the State's
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purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also been
construed to include parental permission as a constructive form of accompaniment and hence, an allowable
exception to the curfew measure; the manner of enforcement, however, is left to the discretion of the local
government unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void, while the Quezon
City Ordinance is declared as constitutional and thus, valid in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions imposing reprimand and
fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended. Hence, following the rule that
ordinances should always conform with the law, these provisions must be struck down as invalid.

WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares Ordinance No. 8046, issued by the
local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as amended by Pambayang
Ordinansa Blg. 2002-13 issued by the local government of Navotas City, UNCONSTITUTIONAL and, thus, NULL
and VOID; while Ordinance No. SP-2301, Series of 2014, issued by the local government of the Quezon City is
declared CONSTITUTIONAL and, thus, VALID in accordance with this Decision.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C DEL CASTILLO

Associate Justice Associate Justice

See separate opinion

JOSE CATRAL MENDOZA
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

FRANCIS H. JARDELEZA ALFREDO BENJAMIN S. CAGUIOA

Associate Justice Associate Justice

SAMUEL R. MARTIRES NOEL G. TIJAM

Associate Justice Associate Justice

ANDRES B. REYES, JR.

Associate Justice

CERTIFICATION

Pursuant to the 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.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

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2/1/24, 7:59 PM G.R. No. 158693
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
EN BANC
G.R. No. 158693 November 17, 2004
JENNY M. AGABON and VIRGILIO C. AGABON, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION (NLRC), RIVIERA HOME IMPROVEMENTS, INC. and VICENTE
ANGELES, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision1 of the Court of Appeals dated January 23, 2003, in CA-G.R.
SP No. 63017, modifying the decision of National Labor Relations Commission (NLRC) in NLRC-NCR Case No.
023442-00.
Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and installing ornamental
and construction materials. It employed petitioners Virgilio Agabon and Jenny Agabon as gypsum board and cornice
installers on January 2, 19922 until February 23, 1999 when they were dismissed for abandonment of work.
Petitioners then filed a complaint for illegal dismissal and payment of money claims3 and on December 28, 1999, the
Labor Arbiter rendered a decision declaring the dismissals illegal and ordered private respondent to pay the
monetary claims. The dispositive portion of the decision states:
WHEREFORE, premises considered, We find the termination of the complainants illegal. Accordingly,
respondent is hereby ordered to pay them their backwages up to November 29, 1999 in the sum of:
1. Jenny M. Agabon - P56, 231.93
2. Virgilio C. Agabon - 56, 231.93
and, in lieu of reinstatement to pay them their separation pay of one (1) month for every year of service from
date of hiring up to November 29, 1999.
Respondent is further ordered to pay the complainants their holiday pay and service incentive leave pay for
the years 1996, 1997 and 1998 as well as their premium pay for holidays and rest days and Virgilio Agabon's
13th month pay differential amounting to TWO THOUSAND ONE HUNDRED FIFTY (P2,150.00) Pesos, or
the aggregate amount of ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED SEVENTY EIGHT &
93/100 (P121,678.93) Pesos for Jenny Agabon, and ONE HUNDRED TWENTY THREE THOUSAND EIGHT
HUNDRED TWENTY EIGHT & 93/100 (P123,828.93) Pesos for Virgilio Agabon, as per attached computation
of Julieta C. Nicolas, OIC, Research and Computation Unit, NCR.
SO ORDERED.4
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On appeal, the NLRC reversed the Labor Arbiter because it found that the petitioners had abandoned their work,
and were not entitled to backwages and separation pay. The other money claims awarded by the Labor Arbiter were
also denied for lack of evidence.5
Upon denial of their motion for reconsideration, petitioners filed a petition for certiorari with the Court of Appeals.
The Court of Appeals in turn ruled that the dismissal of the petitioners was not illegal because they had abandoned
their employment but ordered the payment of money claims. The dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations Commission is REVERSED only insofar as it
dismissed petitioner's money claims. Private respondents are ordered to pay petitioners holiday pay for four
(4) regular holidays in 1996, 1997, and 1998, as well as their service incentive leave pay for said years, and
to pay the balance of petitioner Virgilio Agabon's 13th month pay for 1998 in the amount of P2,150.00.
SO ORDERED.6
Hence, this petition for review on the sole issue of whether petitioners were illegally dismissed.7
Petitioners assert that they were dismissed because the private respondent refused to give them assignments
unless they agreed to work on a "pakyaw" basis when they reported for duty on February 23, 1999. They did not
agree on this arrangement because it would mean losing benefits as Social Security System (SSS) members.
Petitioners also claim that private respondent did not comply with the twin requirements of notice and hearing.8
Private respondent, on the other hand, maintained that petitioners were not dismissed but had abandoned their
work.9 In fact, private respondent sent two letters to the last known addresses of the petitioners advising them to
report for work. Private respondent's manager even talked to petitioner Virgilio Agabon by telephone sometime in
June 1999 to tell him about the new assignment at Pacific Plaza Towers involving 40,000 square meters of cornice
installation work. However, petitioners did not report for work because they had subcontracted to perform installation
work for another company. Petitioners also demanded for an increase in their wage to P280.00 per day. When this
was not granted, petitioners stopped reporting for work and filed the illegal dismissal case.10
It is well-settled that findings of fact of quasi-judicial agencies like the NLRC are accorded not only respect but even
finality if the findings are supported by substantial evidence. This is especially so when such findings were affirmed
by the Court of Appeals.11 However, if the factual findings of the NLRC and the Labor Arbiter are conflicting, as in
this case, the reviewing court may delve into the records and examine for itself the questioned findings.12
Accordingly, the Court of Appeals, after a careful review of the facts, ruled that petitioners' dismissal was for a just
cause. They had abandoned their employment and were already working for another employer.
To dismiss an employee, the law requires not only the existence of a just and valid cause but also enjoins the
employer to give the employee the opportunity to be heard and to defend himself.13 Article 282 of the Labor Code
enumerates the just causes for termination by the employer: (a) serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or the latter's representative in connection with the employee's work;
(b) gross and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee of the trust
reposed in him by his employer or his duly authorized representative; (d) commission of a crime or offense by the
employee against the person of his employer or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment.14 It is a form of
neglect of duty, hence, a just cause for termination of employment by the employer.15 For a valid finding of
abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or
justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more
determinative factor which is manifested by overt acts from which it may be deduced that the employees has no
more intention to work. The intent to discontinue the employment must be shown by clear proof that it was
deliberate and unjustified.16
In February 1999, petitioners were frequently absent having subcontracted for an installation work for another
company. Subcontracting for another company clearly showed the intention to sever the employer-employee
relationship with private respondent. This was not the first time they did this. In January 1996, they did not report for
work because they were working for another company. Private respondent at that time warned petitioners that they
would be dismissed if this happened again. Petitioners disregarded the warning and exhibited a clear intention to
sever their employer-employee relationship. The record of an employee is a relevant consideration in determining
the penalty that should be meted out to him.17
In Sandoval Shipyard v. Clave,18 we held that an employee who deliberately absented from work without leave or
permission from his employer, for the purpose of looking for a job elsewhere, is considered to have abandoned his
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job. We should apply that rule with more reason here where petitioners were absent because they were already
working in another company.
The law imposes many obligations on the employer such as providing just compensation to workers, observance of
the procedural requirements of notice and hearing in the termination of employment. On the other hand, the law also
recognizes the right of the employer to expect from its workers not only good performance, adequate work and
diligence, but also good conduct19 and loyalty. The employer may not be compelled to continue to employ such
persons whose continuance in the service will patently be inimical to his interests.20
After establishing that the terminations were for a just and valid cause, we now determine if the procedures for
dismissal were observed.
The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d) of the Omnibus Rules
Implementing the Labor Code:
Standards of due process: requirements of notice. – In all cases of termination of employment, the following
standards of due process shall be substantially observed:
I. For termination of employment based on just causes as defined in Article 282 of the Code:
(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to
said employee reasonable opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the
employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the
evidence presented against him; and
(c) A written notice of termination served on the employee indicating that upon due consideration of all the
circumstances, grounds have been established to justify his termination.
In case of termination, the foregoing notices shall be served on the employee's last known address.
Dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based
on authorized causes involve grounds under the Labor Code which allow the employer to terminate employees. A
termination for an authorized cause requires payment of separation pay. When the termination of employment is
declared illegal, reinstatement and full backwages are mandated under Article 279. If reinstatement is no longer
possible where the dismissal was unjust, separation pay may be granted.
Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee
two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the
employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard
and after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on
authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor
and Employment written notices 30 days prior to the effectivity of his separation.
From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause under Article
282 of the Labor Code, for an authorized cause under Article 283, or for health reasons under Article 284, and due
process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) the
dismissal is without just or authorized cause and there was no due process; and (4) the dismissal is for just or
authorized cause but due process was not observed.
In the first situation, the dismissal is undoubtedly valid and the employer will not suffer any liability.
In the second and third situations where the dismissals are illegal, Article 279 mandates that the employee is entitled
to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and
other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of
actual reinstatement.
In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not
invalidate the dismissal. However, the employer should be held liable for non-compliance with the procedural
requirements of due process.
The present case squarely falls under the fourth situation. The dismissal should be upheld because it was
established that the petitioners abandoned their jobs to work for another company. Private respondent, however, did
not follow the notice requirements and instead argued that sending notices to the last known addresses would have
been useless because they did not reside there anymore. Unfortunately for the private respondent, this is not a valid
excuse because the law mandates the twin notice requirements to the employee's last known address.21 Thus, it
should be held liable for non-compliance with the procedural requirements of due process.
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A review and re-examination of the relevant legal principles is appropriate and timely to clarify the various rulings on
employment termination in the light of Serrano v. National Labor Relations Commission.22
Prior to 1989, the rule was that a dismissal or termination is illegal if the employee was not given any notice. In the
1989 case of Wenphil Corp. v. National Labor Relations Commission,23 we reversed this long-standing rule and held
that the dismissed employee, although not given any notice and hearing, was not entitled to reinstatement and
backwages because the dismissal was for grave misconduct and insubordination, a just ground for termination
under Article 282. The employee had a violent temper and caused trouble during office hours, defying superiors who
tried to pacify him. We concluded that reinstating the employee and awarding backwages "may encourage him to do
even worse and will render a mockery of the rules of discipline that employees are required to observe."24 We further
held that:
Under the circumstances, the dismissal of the private respondent for just cause should be maintained. He has
no right to return to his former employment.
However, the petitioner must nevertheless be held to account for failure to extend to private respondent his
right to an investigation before causing his dismissal. The rule is explicit as above discussed. The dismissal of
an employee must be for just or authorized cause and after due process. Petitioner committed an infraction of
the second requirement. Thus, it must be imposed a sanction for its failure to give a formal notice and conduct
an investigation as required by law before dismissing petitioner from employment. Considering the
circumstances of this case petitioner must indemnify the private respondent the amount of P1,000.00. The
measure of this award depends on the facts of each case and the gravity of the omission committed by the
employer.25
The rule thus evolved: where the employer had a valid reason to dismiss an employee but did not follow the due
process requirement, the dismissal may be upheld but the employer will be penalized to pay an indemnity to the
employee. This became known as the Wenphil or Belated Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent of the sanction was changed. We held that the violation by
the employer of the notice requirement in termination for just or authorized causes was not a denial of due process
that will nullify the termination. However, the dismissal is ineffectual and the employer must pay full backwages from
the time of termination until it is judicially declared that the dismissal was for a just or authorized cause.
The rationale for the re-examination of the Wenphil doctrine in Serrano was the significant number of cases
involving dismissals without requisite notices. We concluded that the imposition of penalty by way of damages for
violation of the notice requirement was not serving as a deterrent. Hence, we now required payment of full
backwages from the time of dismissal until the time the Court finds the dismissal was for a just or authorized cause.
Serrano was confronting the practice of employers to "dismiss now and pay later" by imposing full backwages.
We believe, however, that the ruling in Serrano did not consider the full meaning of Article 279 of the Labor Code
which states:
ART. 279. Security of Tenure. – In cases of regular employment, the employer shall not terminate the services
of an employee except for a just cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed
from the time his compensation was withheld from him up to the time of his actual reinstatement.
This means that the termination is illegal only if it is not for any of the justified or authorized causes provided by law.
Payment of backwages and other benefits, including reinstatement, is justified only if the employee was unjustly
dismissed.
The fact that the Serrano ruling can cause unfairness and injustice which elicited strong dissent has prompted us to
revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on
moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a
civilized society as conceived by our entire history. Due process is that which comports with the deepest notions of
what is fair and right and just.26 It is a constitutional restraint on the legislative as well as on the executive and
judicial powers of the government provided by the Bill of Rights.
Due process under the Labor Code, like Constitutional due process, has two aspects: substantive, i.e., the valid and
authorized causes of employment termination under the Labor Code; and procedural, i.e., the manner of dismissal.
Procedural due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as amended,
otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order
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Nos. 9 and 10.27 Breaches of these due process requirements violate the Labor Code. Therefore statutory due
process should be differentiated from failure to comply with constitutional due process.
Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil
or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules
protects employees from being unjustly terminated without just cause after notice and hearing.
In Sebuguero v. National Labor Relations Commission,28 the dismissal was for a just and valid cause but the
employee was not accorded due process. The dismissal was upheld by the Court but the employer was sanctioned.
The sanction should be in the nature of indemnification or penalty, and depends on the facts of each case and the
gravity of the omission committed by the employer.
In Nath v. National Labor Relations Commission,29 it was ruled that even if the employee was not given due process,
the failure did not operate to eradicate the just causes for dismissal. The dismissal being for just cause, albeit
without due process, did not entitle the employee to reinstatement, backwages, damages and attorney's fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services, Inc. v. National Labor Relations
Commission,30 which opinion he reiterated in Serrano, stated:
C. Where there is just cause for dismissal but due process has not been properly observed by an employer, it
would not be right to order either the reinstatement of the dismissed employee or the payment of backwages
to him. In failing, however, to comply with the procedure prescribed by law in terminating the services of the
employee, the employer must be deemed to have opted or, in any case, should be made liable, for the
payment of separation pay. It might be pointed out that the notice to be given and the hearing to be conducted
generally constitute the two-part due process requirement of law to be accorded to the employee by the
employer. Nevertheless, peculiar circumstances might obtain in certain situations where to undertake the
above steps would be no more than a useless formality and where, accordingly, it would not be imprudent to
apply the res ipsa loquitur rule and award, in lieu of separation pay, nominal damages to the employee. x x
x.31
After carefully analyzing the consequences of the divergent doctrines in the law on employment termination, we
believe that in cases involving dismissals for cause but without observance of the twin requirements of notice and
hearing, the better rule is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was
for just cause but imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed
in Wenphil. By doing so, this Court would be able to achieve a fair result by dispensing justice not just to employees,
but to employers as well.
The unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but not complying with
statutory due process may have far-reaching consequences.
This would encourage frivolous suits, where even the most notorious violators of company policy are rewarded by
invoking due process. This also creates absurd situations where there is a just or authorized cause for dismissal but
a procedural infirmity invalidates the termination. Let us take for example a case where the employee is caught
stealing or threatens the lives of his co-employees or has become a criminal, who has fled and cannot be found, or
where serious business losses demand that operations be ceased in less than a month. Invalidating the dismissal
would not serve public interest. It could also discourage investments that can generate employment in the local
economy.
The constitutional policy to provide full protection to labor is not meant to be a sword to oppress employers. The
commitment of this Court to the cause of labor does not prevent us from sustaining the employer when it is in the
right, as in this case.32 Certainly, an employer should not be compelled to pay employees for work not actually
performed and in fact abandoned.
The employer should not be compelled to continue employing a person who is admittedly guilty of misfeasance or
malfeasance and whose continued employment is patently inimical to the employer. The law protecting the rights of
the laborer authorizes neither oppression nor self-destruction of the employer.33
It must be stressed that in the present case, the petitioners committed a grave offense, i.e., abandonment, which, if
the requirements of due process were complied with, would undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of Article 282 should not be protected by the Social Justice
Clause of the Constitution. Social justice, as the term suggests, should be used only to correct an injustice. As the
eminent Justice Jose P. Laurel observed, social justice must be founded on the recognition of the necessity of
interdependence among diverse units of a society and of the protection that should be equally and evenly extended
to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount
objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest
good to the greatest number."34
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This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases.
Social justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.
Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-management relations and
dispense justice with an even hand in every case:
We have repeatedly stressed that social justice – or any justice for that matter – is for the deserving, whether
he be a millionaire in his mansion or a pauper in his hovel. It is true that, in case of reasonable doubt, we are
to tilt the balance in favor of the poor to whom the Constitution fittingly extends its sympathy and compassion.
But never is it justified to give preference to the poor simply because they are poor, or reject the rich simply
because they are rich, for justice must always be served for the poor and the rich alike, according to the
mandate of the law.35
Justice in every case should only be for the deserving party. It should not be presumed that every case of illegal
dismissal would automatically be decided in favor of labor, as management has rights that should be fully respected
and enforced by this Court. As interdependent and indispensable partners in nation-building, labor and management
need each other to foster productivity and economic growth; hence, the need to weigh and balance the rights and
welfare of both the employee and employer.
Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the
dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation
of his statutory rights, as ruled in Reta v. National Labor Relations Commission.36 The indemnity to be imposed
should be stiffer to discourage the abhorrent practice of "dismiss now, pay later," which we sought to deter in the
Serrano ruling. The sanction should be in the nature of indemnification or penalty and should depend on the facts of
each case, taking into special consideration the gravity of the due process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for
any loss suffered by him.37
As enunciated by this Court in Viernes v. National Labor Relations Commissions,38 an employer is liable to pay
indemnity in the form of nominal damages to an employee who has been dismissed if, in effecting such dismissal,
the employer fails to comply with the requirements of due process. The Court, after considering the circumstances
therein, fixed the indemnity at P2,590.50, which was equivalent to the employee's one month salary. This indemnity
is intended not to penalize the employer but to vindicate or recognize the employee's right to statutory due process
which was violated by the employer.39
The violation of the petitioners' right to statutory due process by the private respondent warrants the payment of
indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the
court, taking into account the relevant circumstances.40 Considering the prevailing circumstances in the case at bar,
we deem it proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers from
future violations of the statutory due process rights of employees. At the very least, it provides a vindication or
recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.
Private respondent claims that the Court of Appeals erred in holding that it failed to pay petitioners' holiday pay,
service incentive leave pay and 13th month pay.
We are not persuaded.
We affirm the ruling of the appellate court on petitioners' money claims. Private respondent is liable for petitioners'
holiday pay, service incentive leave pay and 13th month pay without deductions.
As a general rule, one who pleads payment has the burden of proving it. Even where the employee must allege non-
payment, the general rule is that the burden rests on the employer to prove payment, rather than on the employee to
prove non-payment. The reason for the rule is that the pertinent personnel files, payrolls, records, remittances and
other similar documents – which will show that overtime, differentials, service incentive leave and other claims of
workers have been paid – are not in the possession of the worker but in the custody and absolute control of the
employer.41
In the case at bar, if private respondent indeed paid petitioners' holiday pay and service incentive leave pay, it could
have easily presented documentary proofs of such monetary benefits to disprove the claims of the petitioners. But it
did not, except with respect to the 13th month pay wherein it presented cash vouchers showing payments of the
benefit in the years disputed.42 Allegations by private respondent that it does not operate during holidays and that it
allows its employees 10 days leave with pay, other than being self-serving, do not constitute proof of payment.
Consequently, it failed to discharge the onus probandi thereby making it liable for such claims to the petitioners.
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Anent the deduction of SSS loan and the value of the shoes from petitioner Virgilio Agabon's 13th month pay, we
find the same to be unauthorized. The evident intention of Presidential Decree No. 851 is to grant an additional
income in the form of the 13th month pay to employees not already receiving the same43 so as "to further protect the
level of real wages from the ravages of world-wide inflation."44 Clearly, as additional income, the 13th month pay is
included in the definition of wage under Article 97(f) of the Labor Code, to wit:
(f) "Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of
being expressed in terms of money whether fixed or ascertained on a time, task, piece , or commission basis,
or other method of calculating the same, which is payable by an employer to an employee under a written or
unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and
includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other
facilities customarily furnished by the employer to the employee…"
from which an employer is prohibited under Article 11345 of the same Code from making any deductions without the
employee's knowledge and consent. In the instant case, private respondent failed to show that the deduction of the
SSS loan and the value of the shoes from petitioner Virgilio Agabon's 13th month pay was authorized by the latter.
The lack of authority to deduct is further bolstered by the fact that petitioner Virgilio Agabon included the same as
one of his money claims against private respondent.
The Court of Appeals properly reinstated the monetary claims awarded by the Labor Arbiter ordering the private
respondent to pay each of the petitioners holiday pay for four regular holidays from 1996 to 1998, in the amount of
P6,520.00, service incentive leave pay for the same period in the amount of P3,255.00 and the balance of Virgilio
Agabon's thirteenth month pay for 1998 in the amount of P2,150.00.
WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of Appeals dated January
23, 2003, in CA-G.R. SP No. 63017, finding that petitioners' Jenny and Virgilio Agabon abandoned their work, and
ordering private respondent to pay each of the petitioners holiday pay for four regular holidays from 1996 to 1998, in
the amount of P6,520.00, service incentive leave pay for the same period in the amount of P3,255.00 and the
balance of Virgilio Agabon's thirteenth month pay for 1998 in the amount of P2,150.00 is AFFIRMED with the
MODIFICATION that private respondent Riviera Home Improvements, Inc. is further ORDERED to pay each of the
petitioners the amount of P30,000.00 as nominal damages for non-compliance with statutory due process.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.
SEPARATE OPINION
TINGA, J:
I concur in the result, the final disposition of the petition being correct. There is no denying the importance of the
Court's ruling today, which should be considered as definitive as to the effect of the failure to render the notice and
hearing required under the Labor Code when an employee is being dismissed for just causes, as defined under the
same law. The Court emphatically reaffirms the rule that dismissals for just cause are not invalidated due to the
failure of the employer to observe the proper notice and hearing requirements under the Labor Code. At the same
time, The Decision likewise establishes that the Civil Code provisions on damages serve as the proper framework
for the appropriate relief to the employee dismissed for just cause if the notice-hearing requirement is not met.
Serrano v. NLRC,1 insofar as it is controlling in dismissals for unauthorized causes, is no longer the controlling
precedent. Any and all previous rulings and statements of the Court inconsistent with these determinations are now
deemed inoperative.
My views on the questions raised in this petition are comprehensive, if I may so in all modesty. I offer this opinion to
discuss the reasoning behind my conclusions, pertaining as they do to questions of fundamental importance.
Prologue
The factual backdrop of the present Petition for Review is not novel. Petitioners claim that they were illegally
dismissed by the respondents, who allege in turn that petitioners had actually abandoned their employment. There
is little difficulty in upholding the findings of the NRLC and the Court of Appeals that petitioners are guilty of
abandonment, one of the just causes for termination under the Labor Code. Yet, the records also show that the
employer was remiss in not giving the notice required by the Labor Code; hence, the resultant controversy as to the
legal effect of such failure vis-à-vis the warranted dismissal.
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Ostensibly, the matter has been settled by our decision in Serrano2, wherein the Court ruled that the failure to
properly observe the notice requirement did not render the dismissal, whether for just or authorized causes, null and
void, for such violation was not a denial of the constitutional right to due process, and that the measure of
appropriate damages in such cases ought to be the amount of wages the employee should have received were it
not for the termination of his employment without prior notice.3 Still, the Court has, for good reason, opted to
reexamine the so-called Serrano doctrine through the present petition
Antecedent Facts
Respondent Riviera Home Improvements, Inc (Riviera Home) is engaged in the manufacture and installation of
gypsum board and cornice. In January of 1992, the Agabons were hired in January of 1992 as cornice installers by
Riviera Home. According to their personnel file with Riviera Home, the Agabon given address was 3RDS Tailoring,
E. Rodriguez Ave., Moonwalk Subdivision, P-II Parañaque City, Metro Manila.4
It is not disputed that sometime around February 1999, the Agabons stopped rendering services for Riviera Home.
The Agabons allege that beginning on 23 February 1999, they stopped receiving assignments from Riviera Home.5
When they demanded an explanation, the manager of Riviera Homes, Marivic Ventura, informed them that they
would be hired again, but on a "pakyaw" (piece-work) basis. When the Agabons spurned this proposal, Riviera
Homes refused to continue their employment under the original terms and agreement.6 Taking affront, the Agabons
filed a complaint for illegal dismissal with the National Labor Relations Commission ("NLRC").
Riviera Homes adverts to a different version of events leading to the filing of the complaint for illegal dismissal. It
alleged that in the early quarter of 1999, the Agabons stopped reporting for work with Riviera. Two separate letters
dated 10 March 1999, were sent to the Agabons at the address indicated in their personnel file. In these notices, the
Agabons were directed to report for work immediately.7 However, these notices were returned unserved with the
notation "RTS Moved." Then, in June of 1999, Virgilio Agabon informed Riviera Homes by telephone that he and
Jenny Agabon were ready to return to work for Riviera Homes, on the condition that their wages be first adjusted.
On 18 June 1999, the Agabons went to Riviera Homes, and in a meeting with management, requested a wage
increase of up to Two Hundred Eighty Pesos (P280.00) a day. When no affirmative response was offered by Riviera
Homes, the Agabons initiated the complaint before the NLRC.8
In their Position Paper, the Agabons likewise alleged that they were required to work even on holidays and rest
days, but were never paid the legal holiday pay or the premium pay for holiday or rest day. They also asserted that
they were denied Service Incentive Leave pay, and that Virgilio Agabon was not given his thirteenth (13th) month
pay for the year 1998.9
After due deliberation, Labor Arbiter Daisy G. Cauton-Barcelona rendered a Decision dated 28 December 1999,
finding the termination of the Agabons illegal, and ordering Riviera Homes to pay backwages in the sum of Fifty Six
Thousand Two Hundred Thirty One Pesos and Ninety Three Centavos (P56,231.93) each. The Labor Arbiter
likewise ordered, in lieu of reinstatement, the payment of separation pay of one (1) month pay for every year of
service from date of hiring up to 29 November 1999, as well as the payment of holiday pay, service incentive leave
pay, and premium pay for holiday and restday, plus thirteenth (13th) month differential to Virgilio Agabon.10
In so ruling, the Labor Arbiter declared that Riviera Homes was unable to satisfactorily refute the Agabons' claim that
they were no longer given work to do after 23 February 1999 and that their rehiring was only on "pakyaw" basis. The
Labor Arbiter also held that Riviera Homes failed to comply with the notice requirement, noting that Riviera Homes
well knew of the change of address of the Agabons, considering that the identification cards it issued stated a
different address from that on the personnel file.11 The Labor Arbiter asserted the principle that in all termination
cases, strict compliance by the employer with the demands of procedural and substantive due process is a condition
sine qua non for the same to be declared valid.12
On appeal, the NLRC Second Division set aside the Labor Arbiter's Decision and ordered the dismissal of the
complaint for lack of merit.13 The NLRC held that the Agabons were not able to refute the assertion that for the
payroll period ending on 15 February 1999, Virgilio and Jenny Agabon worked for only two and one-half (2½) and
three (3) days, respectively. It disputed the earlier finding that Riviera Homes had known of the change in address,
noting that the address indicated in the
identification cards was not the Agabons, but that of the persons who should be notified in case of emergency
concerning the employee.14 Thus, proper service of the notice was deemed to have been accomplished. Further,
the notices evinced good reason to believe that the Agabons had not been dismissed, but had instead abandoned
their jobs by refusing to report for work.
In support of its conclusion that the Agabons had abandoned their work, the NLRC also observed that the Agabons
did not seek reinstatement, but only separation pay. While the choice of relief was premised by the Agabons on their
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purported strained relations with Riviera Homes, the NLRC pointed out that such claim was amply belied by the fact
that the Agabons had actually sought a conference with Riviera Homes in June of 1999. The NLRC likewise found
that the failure of the Labor Arbiter to justify the award of extraneous money claims, such as holiday and service
incentive leave pay, confirmed that there was no proof to justify such claims.
A Petition for Certiorari was promptly filed with the Court of Appeals by the Agabons, imputing grave abuse of
discretion on the part of the NLRC in dismissing their complaint for illegal dismissal. In a Decision15 dated 23
January 2003, the Court of Appeals affirmed the finding that the Agabons had abandoned their employment. It noted
that the two elements constituting abandonment had been established, to wit: the failure to report for work or
absence without valid justifiable reason, and; a clear intention to sever the employer-employee relationship. The
intent to sever the employer-employee relationship was buttressed by the Agabon's choice to seek not
reinstatement, but separation pay. The Court of Appeals likewise found that the service of the notices were valid, as
the Agabons did not notify Riviera Homes of their change of address, and thus the failure to return to work despite
notice amounted to abandonment of work.
However, the Court of Appeals reversed the NLRC as regards the denial of the claims for holiday pay, service
incentive leave pay, and the balance of Virgilio Agabon's thirteenth (13th) month pay. It ruled that the failure to
adduce proof in support thereof was not fatal and that the burden of proving that such benefits had already been
paid rested on Riviera Homes.16 Given that Riviera Homes failed to present proof of payment to the Agabons of
their holiday pay and service incentive leave pay for the years 1996, 1997 and 1998, the Court of Appeals chose to
believe that such benefits had not actually been received by the employees. It also ruled that the apparent
deductions made by Riviera Homes on the thirteenth (13th) month pay of Virgilio Agabon violated Section 10 of the
Rules and Regulations Implementing Presidential Decree No. 851.17 Accordingly, Riviera Homes was ordered to
pay the Agabons holiday for four (4) regular holidays in 1996, 1997 and 1998, as well as their service incentive
leave pay for said years, and the balance of Virgilio Agabon's thirteenth (13th) month pay for 1998 in the amount of
Two Thousand One Hundred Fifty Pesos (P2,150.00).18
In their Petition for Review, the Agabons claim that they had been illegally dismissed, reasserting their version of
events, thus: (1) that they had not been given new assignments since 23 February 1999; (2) that they were told that
they would only be re-hired on a "pakyaw" basis, and; (3) that Riviera Homes had knowingly sent the notices to their
old address despite its knowledge of their change of address as indicated in the identification cards.19 Further, the
Agabons note that only one notice was sent to each of them, in violation of the rule that the employer must furnish
two written notices before termination — the first to apprise the employee of the cause for which dismissal is sought,
and the second to notify the employee of the decision of dismissal.20 The Agabons likewise maintain that they did
not seek reinstatement owing to the strained relations between them and Riviera Homes.
The Agabons present to this Court only one issue, i.e.: whether or not they were illegally dismissed from their
employment.21 There are several dimensions though to this issue which warrant full consideration.
The Abandonment Dimension
Review of Factual Finding of Abandonment
As the Decision points out, abandonment is characterized by the failure to report for work or absence without valid
or justifiable reason, and a clear intention to sever the employer-employee relationship. The question of whether or
not an employee has abandoned employment is essentially a factual issue.22 The NLRC and the Court of Appeals,
both appropriate triers of fact, concluded that the Agabons had actually abandoned their employment, thus there is
little need for deep inquiry into the correctness of this factual finding. There is no doubt that the Agabons stopped
reporting for work sometime in February of 1999. And there is no evidence to support their assertion that such
absence was due to the deliberate failure of Riviera Homes to give them work. There is also the fact, as noted by
the NLRC and the Court of Appeals, that the Agabons did not pray for reinstatement, but only for separation
pay and money claims.23 This failure indicates their disinterest in maintaining the employer-employee relationship
and their unabated avowed intent to sever it. Their excuse that strained relations between them and Riviera Homes
rendered reinstatement no longer feasible was hardly given credence by the NLRC and the Court of Appeals.24
The contrary conclusion arrived at by the Labor Arbiter as regards abandonment is of little bearing to the case. All
that the Labor Arbiter said on that point was that Riviera Homes was not able to refute the Agabons' claim that they
were terminated on 23 February 1999.25 The Labor Arbiter did not explain why or how such finding was reachhy or
how such finding was reachhe Agabons was more credible than that of Riviera Homes'. Being bereft of reasoning,
the conclusion deserves scant consideration.
Compliance with Notice Requirement
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At the same time, both the NLRC and the Court of Appeals failed to consider the apparent fact that the rules
governing notice of termination were not complied with by Riviera Homes. Section 2, Book V, Rule XXIII of the
Omnibus Rules Implementing the Labor Code (Implementing Rules) specifically provides that for termination of
employment based on just causes as defined in Article 282, there must be: (1) written notice served on the
employee specifying the grounds for termination and giving employee reasonable opportunity to explain his/her side;
(2) a hearing or conference wherein the employee, with the assistance of counsel if so desired, is given opportunity
to respond to the charge, present his evidence or rebut evidence presented against him/her; and (3) written notice of
termination served on the employee indicating that upon due consideration of all the circumstances, grounds have
been established to justify termination.
At the same time, Section 2, Book V, Rule XXIII of the Implementing Rules does not require strict compliance with
the above procedure, but only that the same be "substantially observed."
Riviera Homes maintains that the letters it sent on 10 March 1999 to the Agabons sufficiently complied with the
notice rule. These identically worded letters noted that the Agabons had stopped working without permission that
they failed to return for work despite having been repeatedly told to report to the office and resume their
employment.26 The letters ended with an invitation to the Agabons to report back to the office and return to work.27
The apparent purpose of these letters was to advise the Agabons that they were welcome to return back to work,
and not to notify them of the grounds of termination. Still, considering that only substantial compliance with the
notice requirement is required, I am prepared to say that the letters sufficiently conform to the first notice required
under the Implementing Rules. The purpose of the first notice is to duly inform the employee that a particular
transgression is being considered against him or her, and that an opportunity is being offered for him or her to
respond to the charges. The letters served the purpose of informing the Agabons of the pending matters beclouding
their employment, and extending them the opportunity to clear the air.
Contrary to the Agabons' claim, the letter-notice was correctly sent to the employee's last known address, in
compliance with the Implementing Rules. There is no dispute that these letters were not actually received by the
Agabons, as they had apparently moved out of the address indicated therein. Still, the letters were sent to what
Riviera Homes knew to be the Agabons' last known address, as indicated in their personnel file. The Agabons insist
that Riviera Homes had known of the change of address, offering as proof their company IDs which purportedly print
out their correct new address. Yet, as pointed out by the NLRC and the Court of Appeals, the addresses indicated in
the IDs are not the Agabons, but that of the person who is to be notified in case on emergency involve either or both
of the Agabons.
The actual violation of the notice requirement by Riviera Homes lies in its failure to serve on the Agabons the
second notice which should inform them of termination. As the Decision notes, Riviera Homes' argument that
sending the second notice was useless due to the change of address is inutile, since the Implementing Rules plainly
require that the notice of termination should be served at the employee's last known address.
The importance of sending the notice of termination should not be trivialized. The termination letter serves as
indubitable proof of loss of employment, and its receipt compels the employee to evaluate his or her next options.
Without such notice, the employee may be left uncertain of his fate; thus, its service is mandated by the
Implementing Rules. Non-compliance with the notice rule, as evident in this case, contravenes the Implementing
Rules. But does the violation serve to invalidate the Agabons' dismissal for just cause?
The So-Called Constitutional Law Dimension
Justices Puno and Panganiban opine that the Agabons should be reinstated as a consequence of the violation of
the notice requirement. I respectfully disagree, for the reasons expounded below.
Constitutional Considerations
Of Due Process and the Notice-Hearing
Requirement in Labor Termination Cases
Justice Puno proposes that the failure to render due notice and hearing prior to dismissal for just cause constitutes a
violation of the constitutional right to due process. This view, as acknowledged by Justice Puno himself, runs
contrary to the Court's pronouncement in Serrano v. NLRC28 that the absence of due notice and hearing prior to
dismissal, if for just cause, violates statutory due process.
The ponencia of Justice Vicente V. Mendoza in Serrano provides this cogent overview of the history of the doctrine:
Indeed, to contend that the notice requirement in the Labor Code is an aspect of due process is to overlook
the fact that Art. 283 had its origin in Art. 302 of the Spanish Code of Commerce of 1882 which gave either
party to the employer-employee relationship the right to terminate their relationship by giving notice to the
other one month in advance. In lieu of notice, an employee could be laid off by paying him a mesada
equivalent to his salary for one month. This provision was repealed by Art. 2270 of the Civil Code, which took
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effect on August 30, 1950. But on June 12, 1954, R.A. No. 1052, otherwise known as the Termination Pay
Law, was enacted reviving the mesada. On June 21, 1957, the law was amended by R.A. No. 1787 providing
for the giving of advance notice for every year of service.29
Under Section 1 of the Termination Pay Law, an employer could dismiss an employee without just cause by serving
written notice on the employee at least one month in advance or one-half month for every year of service of the
employee, whichever was longer.30 Failure to serve such written notice entitled the employee to compensation
equivalent to his salaries or wages corresponding to the required period of notice from the date of termination of his
employment.
However, there was no similar written notice requirement under the Termination Pay Law if the dismissal of the
employee was for just cause. The Court, speaking through Justice JBL Reyes, ruled in Phil. Refining Co. v.
Garcia:31
[Republic] Act 1052, as amended by Republic Act 1787, impliedly recognizes the right of the employer to
dismiss his employees (hired without definite period) whether for just case, as therein defined or enumerated,
or without it. If there be just cause, the employer is not required to serve any notice of discharge nor to
disburse termination pay to the employee. xxx32
Clearly, the Court, prior to the enactment of the Labor Code, was ill-receptive to the notion that termination for just
cause without notice or hearing violated the constitutional right to due process. Nonetheless, the Court recognized
an award of damages as the appropriate remedy. In Galsim v. PNB,33 the Court held:
Of course, the employer's prerogative to dismiss employees hired without a definite period may be with or
without cause. But if the manner in which such right is exercised is abusive, the employer stands to answer to
the dismissed employee for damages.34
The Termination Pay Law was among the repealed laws with the enactment of the Labor Code in 1974. Significantly,
the Labor Code, in its inception, did not require notice or hearing before an employer could terminate an employee
for just cause. As Justice Mendoza explained:
Where the termination of employment was for a just cause, no notice was required to be given to the
employee. It was only on September 4, 1981 that notice was required to be given even where the dismissal or
termination of an employee was for cause. This was made in the rules issued by the then Minister of Labor
and Employment to implement B.P. Blg. 130 which amended the Labor Code. And it was still much later when
the notice requirement was embodied in the law with the amendment of Art. 277(b) by R.A. No. 6715 on
March 2, 1989.35
It cannot be denied though that the thinking that absence of notice or hearing prior to termination constituted a
constitutional violation has gained a jurisprudential foothold with the Court. Justice Puno, in his Dissenting Opinion,
cites several cases in support of this theory, beginning with Batangas Laguna Tayabas Bus Co. v. Court of
Appeals36 wherein we held that "the failure of petitioner to give the private respondent the benefit of a hearing
before he was dismissed constitutes an infringement on his constitutional right to due process of law.37
Still, this theory has been refuted, pellucidly and effectively to my mind, by Justice Mendoza's disquisition in
Serrano, thus:
xxx There are three reasons why, on the other hand, violation by the employer of the notice requirement
cannot be considered a denial of due process resulting in the nullity of the employee's dismissal or layoff.
The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not
apply to the exercise of private power, such as the termination of employment under the Labor Code. This is
plain from the text of Art. III, §1 of the Constitution, viz.: "No person shall be deprived of life, liberty, or
property without due process of law. . . ." The reason is simple: Only the State has authority to take the life,
liberty, or property of the individual. The purpose of the Due Process Clause is to ensure that the exercise of
this power is consistent with what are considered civilized methods.
The second reason is that notice and hearing are required under the Due Process Clause before the power of
organized society are brought to bear upon the individual. This is obviously not the case of termination of
employment under Art. 283. Here the employee is not faced with an aspect of the adversary system. The
purpose for requiring a 30-day written notice before an employee is laid off is not to afford him an opportunity
to be heard on any charge against him, for there is none. The purpose rather is to give him time to prepare for
the eventual loss of his job and the DOLE an opportunity to determine whether economic causes do exist
justifying the termination of his employment.
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xxx
The third reason why the notice requirement under Art. 283 can not be considered a requirement of the Due
Process Clause is that the employer cannot really be expected to be entirely an impartial judge of his own
cause. This is also the case in termination of employment for a just cause under Art. 282 (i.e., serious
misconduct or willful disobedience by the employee of the lawful orders of the employer, gross and habitual
neglect of duties, fraud or willful breach of trust of the employer, commission of crime against the employer or
the latter's immediate family or duly authorized representatives, or other analogous cases).38
The Court in the landmark case of People v. Marti39 clarified the proper dimensions of the Bill of Rights.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed
by the fundamental law of the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself
posed, as follows:
"First, the general reflections. The protection of fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder." (Sponsorship Speech of
Commissioner Bernas; Record of the Constitutional Commission, Vol. 1, p. 674; July 17,1986; Italics
supplied)40
I do not doubt that requiring notice and hearing prior to termination for just cause is an admirable sentiment borne
out of basic equity and fairness. Still, it is not a constitutional requirement that can impose itself on the relations of
private persons and entities. Simply put, the Bill of Rights affords protection against possible State oppression
against its citizens, but not against an unjust or repressive conduct by a private party towards another.
Justice Puno characterizes the notion that constitutional due process limits government action alone as "passé,"
and adverts to nouvelle vague theories which assert that private conduct may be restrained by constitutional due
process. His dissent alludes to the American experience making references to the post-Civil War/pre-World War II
era when the US Supreme Court seemed overly solicitous to the rights of big business over those of the workers.
Theories, no matter how entrancing, remain theoretical unless adopted by legislation, or more controversially, by
judicial opinion. There were a few decisions of the US Supreme Court that, ostensibly, imposed on private persons
the values of the constitutional guarantees. However, in deciding the cases, the American High Court found it
necessary to link the actors to adequate elements of the "State" since the Fourteenth Amendment plainly begins
with the words "No State shall…"41
More crucially to the American experience, it had become necessary to pass legislation in order to compel private
persons to observe constitutional values. While the equal protection clause was deemed sufficient by the Warren
Court to bar racial segregation in public facilities, it necessitated enactment of the Civil Rights Acts of 1964 to
prohibit segregation as enforced by private persons within their property. In this jurisdiction, I have trust in the
statutory regime that governs the correction of private wrongs. There are thousands of statutes, some penal or
regulatory in nature, that are the source of actionable claims against private persons. There is even no stopping the
State, through the legislative cauldron, from compelling private individuals, under pain of legal sanction, into
observing the norms ordained in the Bill of Rights.
Justice Panganiban's Separate Opinion asserts that corporate behemoths and even individuals may now be
sources of abuses and threats to human rights and liberties.42 The concern is not unfounded, but appropriate
remedies exist within our statutes, and so resort to the constitutional trump card is not necessary. Even if we were to
engage the premise, the proper juristic exercise should be to examine whether an employer has taken the attributes
of the State so that it could be compelled by the Constitution to observe the proscriptions of the Bill of Rights. But
the strained analogy simply does not square since the attributes of an employer are starkly incongruous with those
of the State. Employers plainly do not possess the awesome powers and the tremendous resources which the State
has at its command.
The differences between the State and employers are not merely literal, but extend to their very essences. Unlike
the State, the raison d'etre of employers in business is to accumulate profits. Perhaps the State and the employer
are similarly capacitated to inflict injury or discomfort on persons under their control, but the same power is also
possessed by a school principal, hospital administrator, or a religious leader, among many others. Indeed, the scope
and reach of authority of an employer pales in comparison with that of the State. There is no basis to conclude that
an employer, or even the employer class, may be deemed a de facto state and on that premise, compelled to
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observe the Bill of Rights. There is simply no nexus in their functions, distaff as they are, that renders it necessary to
accord the same jurisprudential treatment.
It may be so, as alluded in the dissent of Justice Puno, that a conservative court system overly solicitous to the
concerns of business may consciously gut away at rights or privileges owing to the labor sector. This certainly
happened before in the United States in the early part of the twentieth century, when the progressive labor
legislation such as that enacted during President Roosevelt's New Deal regime — most of them addressing
problems of labor — were struck down by an arch-conservative Court.43 The preferred rationale then was to
enshrine within the constitutional order business prerogatives, rendering them superior to the express legislative
intent. Curiously, following its judicial philosophy at the time the U. S. Supreme Court made due process guarantee
towards employers prevail over the police power to defeat the cause of labor.44
Of course, this Court should not be insensate to the means and methods by which the entrenched powerful class
may maneuver the socio-political system to ensure self-preservation. However, the remedy to rightward judicial bias
is not leftward judicial bias. The more proper judicial attitude is to give due respect to legislative prerogatives,
regardless of the ideological sauce they are dipped in.
While the Bill of Rights maintains a position of primacy in the constitutional hierarchy,45 it has scope and limitations
that must be respected and asserted by the Court, even though they may at times serve somewhat bitter ends. The
dissenting opinions are palpably distressed at the effect of the Decision, which will undoubtedly provoke those
reflexively sympathetic to the labor class. But haphazard legal theory cannot be used to justify the obverse result.
The adoption of the dissenting views would give rise to all sorts of absurd constitutional claims. An excommunicated
Catholic might demand his/her reinstatement into the good graces of the Church and into communion on the ground
that excommunication was violative of the constitutional right to due process. A celebrity contracted to endorse
Pepsi Cola might sue in court to void a stipulation that prevents him/her from singing the praises of Coca Cola once
in a while, on the ground that such stipulation violates the constitutional right to free speech. An employee might sue
to prevent the employer from reading outgoing e-mail sent through the company server using the company e-mail
address, on the ground that the constitutional right to privacy of communication would be breached.
The above concerns do not in anyway serve to trivialize the interests of labor. But we must avoid overarching
declarations in order to justify an end result beneficial to labor. I dread the doctrinal acceptance of the notion that the
Bill of Rights, on its own, affords protection and sanctuary not just from the acts of State but also from the conduct of
private persons. Natural and juridical persons would hesitate to interact for fear that a misstep could lead to their
being charged in court as a constitutional violator. Private institutions that thrive on their exclusivity, such as
churches or cliquish groups, could be forced to renege on their traditional tenets, including vows of secrecy and the
like, if deemed by the Court as inconsistent with the Bill of Rights. Indeed, that fundamental right of all private
persons to be let alone would be forever diminished because of a questionable notion that contravenes with
centuries of political thought.
It is not difficult to be enraptured by novel legal ideas. Their characterization is susceptible to the same marketing
traps that hook consumers to new products. With the help of unique wrapping, a catchy label, and testimonials from
professed experts from exotic lands, a malodorous idea may gain wide acceptance, even among those self-
possessed with their own heightened senses of perception. Yet before we join the mad rush in order to proclaim a
theory as "brilliant," a rigorous test must first be employed to determine whether it complements or contradicts our
own system of laws and juristic thought. Without such analysis, we run the risk of abnegating the doctrines we have
fostered for decades and the protections they may have implanted into our way of life.
Should the Court adopt the view that the Bill of Rights may be invoked to invalidate actions by private entities
against private individuals, the Court would open the floodgates to, and the docket would be swamped with,
litigations of the scurrilous sort. Just as patriotism is the last refuge of scoundrels, the broad constitutional claim is
the final resort of the desperate litigant.
Constitutional Protection of Labor
The provisions of the 1987 Constitution affirm the primacy of labor and advocate a multi-faceted state policy that
affords, among others, full protection to labor. Section 18, Article II thereof provides:
The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote
their welfare.
Further, Section 3, Article XIII states:
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equal employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
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security to tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just
share in the fruits of production and the right of enterprises to reasonable returns on investments, and to
expansion and growth.
The constitutional enshrinement of the guarantee of full protection of labor is not novel to the 1987 Constitution.
Section 6, Article XIV of the 1935 Constitution reads:
The State shall afford protection to labor, especially to working women, and minors, and shall regulate the
relations between the landowner and tenant, and between labor and capital in industry and in agriculture. The
State may provide for compulsory arbitration.
Similarly, among the principles and state policies declared in the 1973 Constitution, is that provided in Section 9,
Article II thereof:
The State shall afford full protection to labor, promote full employment and equality in employment, ensure
equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and
employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of
tenure, and just and humane conditions of work. The State may provide for compulsory arbitration.
On the other hand, prior to the 1973 Constitution, the right to security of tenure could only be found in legislative
enactments and their respective implementing rules and regulations. It was only in the 1973 Constitution that
security of tenure was elevated as a constitutional right. The development of the concept of security of tenure as a
constitutionally recognized right was discussed by this Court in BPI Credit Corporation v. NLRC,46 to wit:
The enthronement of the worker's right to security or tenure in our fundamental law was not achieved
overnight. For all its liberality towards labor, our 1935 Constitution did not elevate the right as a constitutional
right. For a long time, the worker's security of tenure had only the protective mantle of statutes and their
interpretative rules and regulations. It was as uncertain protection that sometimes yielded to the political
permutations of the times. It took labor nearly four decades of sweat and tears to persuade our people thru
their leaders, to exalt the worker's right to security of tenure as a sacrosanct constitutional right. It was Article
II, section 2 [9] of our 1973 Constitution that declared as a policy that the State shall assure the right of
worker's to security tenure. The 1987 Constitution is even more solicitous of the welfare of labor. Section 3 of
its Article XIII mandates that the State shall afford full protection to labor and declares that all workers shall be
entitled to security of tenure. Among the enunciated State policies are the
promotion of social justice and a just and dynamic social order. In contrast, the prerogative of management to
dismiss a worker, as an aspect of property right, has never been endowed with a constitutional status.
The unequivocal constitutional declaration that all workers shall be entitled to security of tenure spurred our
lawmakers to strengthen the protective walls around this hard earned right. The right was protected from
undue infringement both by our substantive and procedural laws. Thus, the causes for dismissing employees
were more defined and restricted; on the other hand, the procedure of termination was also more clearly
delineated. These substantive and procedural laws must be strictly complied with before a worker can be
dismissed from his employment.47
It is quite apparent that the constitutional protection of labor was entrenched more than eight decades ago, yet such
did not prevent this Court in the past from affirming dismissals for just cause without valid notice. Nor was there any
pretense made that this constitutional maxim afforded a laborer a positive right against dismissal for just cause on
the ground of lack of valid prior notice. As demonstrated earlier, it was only after the enactment of the Labor Code
that the doctrine relied upon by the dissenting opinions became en vogue. This point highlights my position that the
violation of the notice requirement has statutory moorings, not constitutional.
It should be also noted that the 1987 Constitution also recognizes the principle of shared responsibility between
workers and employers, and the right of enterprise to reasonable returns, expansion, and growth. Whatever
perceived imbalance there might have been under previous incarnations of the provision have been obviated by
Section 3, Article XIII.
In the case of Manila Prince Hotel v. GSIS,48 we affirmed the presumption that all constitutional provisions are self-
executing. We reasoned that to declare otherwise would result in the pernicious situation wherein by mere inaction
and disregard by the legislature, constitutional mandates would be rendered ineffectual. Thus, we held:
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As against constitutions of the past, modern constitutions have been generally ed upon a different principle
and have often become in effect extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into
one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution
are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing,
the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This
can be cataclysmic. That is why the prevailing view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed
implementing statute.49
In further discussing self-executing provisions, this Court stated that:
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of
powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to
be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that
legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional
provision does not render such a provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional right and make it more available.
Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.50
Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in
the sense that these are automatically acknowledged and observed without need for any enabling legislation.
However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights
embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. The
espousal of such view presents the dangerous tendency of being overbroad and exaggerated. The guarantees of
"full protection to labor" and "security of tenure", when examined in isolation, are facially unqualified, and the
broadest interpretation possible suggests a blanket shield in favor of labor against any form of removal regardless of
circumstance. This interpretation implies an unimpeachable right to continued employment-a utopian notion,
doubtless-but still hardly within the contemplation of the framers. Subsequent legislation is still needed to define the
parameters of these guaranteed rights to ensure the protection and promotion, not only the rights of the labor sector,
but of the employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss, formulating
their own conclusion to approximate at least the aims of the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable right to stave
off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As manifested
by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their
enforceability. This is reflected in the record of debates on the social justice provisions of the Constitution:
MS. [FELICITAS S.] AQUINO: We appreciate the concern of the Commissioner. But this Committee [on Social
Justice] has actually become the forum already of a lot of specific grievances and specific demands,
such that understandably, we may have been, at one time or another, dangerously treading into the
functions of legislation. Our only plea to the Commission is to focus our perspective on the matter of social
justice and its rightful place in the Constitution. What we envision here is a mandate specific enough that
would give impetus for statutory implementation. We would caution ourselves in terms of the
judicious exercise of self-censorship against treading into the functions of legislation. (emphasis
supplied)51
xxx
[FLORENZ D.] REGALADO: I notice that the 1935 Constitution had only one section on social justice; the
same is true with the 1973 Constitution. But they seem to have stood us in good stead; and I am a little
surprised why, despite that attempt at self-censorship, there are certain provisions here which are
properly for legislation.52
xxx
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BISHOP [TEODORO S.] BACANI: [I] think the distinction that was given during the presentation of the
provisions on the Bill of Rights by Commissioner Bernas is very apropos here. He spoke of self-executing
rights which belong properly to the Bill of Rights, and then he spoke of a new body of rights which
are more of claims and that these have come about largely through the works of social philosophers
and then the teaching of the Popes. They focus on the common good and hence, it is not as easy to
pinpoint precisely these rights nor the situs of the rights. And yet, they exist in relation to the common
good.53
xxx
MS. [MINDA LUZ M.] QUESADA: I think the nitty-gritty of this kind of collaboration will be left to
legislation but the important thing now is the conservation, utilization or maximization of the very limited
resources. xxx
[RICARDO J.] ROMULO: The other problem is that, by and large, government services are inefficient. So, this
is a problem all by itself. On Section 19, where the report says that people's organizations as a principal
means of empowering the people to pursue and protect through peaceful means…, I do not suppose that
the Committee would like to either preempt or exclude the legislature, because the concept of a
representative and democratic system really is that the legislature is normally the principal means.
[EDMUNDO G.] GARCIA: That is correct. In fact, people cannot even dream of influencing the
composition or the membership of the legislature, if they do not get organized. It is, in fact, a
recognition of the principle that unless a citizenry is organized and mobilized to pursue its ends peacefully,
then it cannot really participate effectively.54
There is no pretense on the part of the framers that the provisions on Social Justice, particularly Section 3 of Article
XIII, are self-executory. Still, considering the rule that provisions should be deemed self-executing if enforceable
without further legislative action, an examination of Section 3 of Article XIII is warranted to determine whether it is
complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.55 Particularly,
we should inquire whether or not the provision voids the dismissal of a laborer for just cause if no valid notice or
hearing is attendant.
Constitutional Commissioner Fr. Joaquin G. Bernas makes a significant comment on Section 3, Article XIII of the
1987 Constitution:
The [cluster] of rights guaranteed in the second paragraph are the right "to security of tenure, humane
conditions of work, and a living wage." Again, although these have been set apart by a period (.) from the next
sentence and are therefore not modified by the final phrase "as may be provided by law," it is not the
intention to place these beyond the reach of valid laws. xxx (emphasis supplied)56
At present, the Labor Code is the primary mechanism to carry out the Constitution's directives. This is clear from
Article 357 under Chapter 1 thereof which essentially restates the policy on the protection of labor as worded in the
1973 Constitution, which was in force at the time of enactment of the Labor Code. It crystallizes the fundamental
law's policies on labor, defines the parameters of the rights granted to labor such as the right to security of tenure,
and prescribes the standards for the enforcement of such rights in concrete terms. While not infallible, the measures
provided therein tend to ensure the achievement of the constitutional aims.
The necessity for laws concretizing the constitutional principles on the protection of labor is evident in the reliance
placed upon such laws by the Court in resolving the issue of the validity of a worker's dismissal. In cases where that
was the issue confronting the Court, it consistently recognized the constitutional right to security of tenure and
employed the standards laid down by prevailing laws in determining whether such right was violated.58 The Court's
reference to laws other than the Constitution in resolving the issue of dismissal is an implicit acknowledgment that
the right to security of tenure, while recognized in the Constitution, cannot be implemented uniformly absent a law
prescribing concrete standards for its enforcement.
As discussed earlier, the validity of an employee's dismissal in previous cases was examined by the Court in
accordance with the standards laid down by Congress in the Termination Pay Law, and subsequently, the Labor
Code and the amendments thereto. At present, the validity of an employee's dismissal is weighed against the
standards laid down in Article 279, as well as Article 282 in relation to Article 277(b) of the Labor Code, for a
dismissal for just cause, and Article 283 for a dismissal for an authorized cause.
The Effect of Statutory Violation
Of Notice and Hearing
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There is no doubt that the dismissal of an employee even for just cause, without prior notice or hearing, violates the
Labor Code. However, does such violation necessarily void the dismissal?
Before I proceed with my discussion on dismissals for just causes, a brief comment regarding dismissals for
authorized cause under Article 283 of the Labor Code. While the justiciable question in Serrano pertained to a
dismissal for unauthorized cause, the ruling therein was crafted as definitive to dismissals for just cause. Happily,
the Decision today does not adopt the same unwise tack. It should be recognized that dismissals for just cause and
dismissals for authorized cause are governed by different provisions, entail divergent requisites, and animated by
distinct rationales. The language of Article 283 expressly effects the termination for authorized cause to the service
of written notice on the workers and the Ministry of Labor at least one (1) month before the intended date of
termination. This constitutes an eminent difference than dismissals for just cause, wherein the causal relation
between the notice and the dismissal is not expressly stipulated. The circumstances distinguishing just and
authorized causes are too markedly different to be subjected to the same rules and reasoning in interpretation.
Since the present petition is limited to a question arising from a dismissal for just cause, there is no reason for
making any pronouncement regarding authorized causes. Such declaration would be merely obiter, since they are
neither the law of the case nor dispositive of the present petition. When the question becomes justiciable before this
Court, we will be confronted with an appropriate factual milieu on which we can render a more judicious disposition
of this admittedly important question.
B. Dismissal for Just Cause
There is no express provision in the Labor Code that voids a dismissal for just cause on the ground that there was
no notice or hearing. Under Section 279, the employer is precluded from dismissing an employee except for a just
cause as provided in Section 282, or an authorized cause under Sections 283 and 284. Based on reading Section
279 alone, the existence of just cause by itself is sufficient to validate the termination.
Just cause is defined by Article 282, which unlike Article 283, does not condition the termination on the service of
written notices. Still, the dissenting opinions propound that even if there is just cause, a termination may be
invalidated due to the absence of notice or hearing. This view is anchored mainly on constitutional moorings, the
basis of which I had argued against earlier. For determination now is whether there is statutory basis under the
Labor Code to void a dismissal for just cause due to the absence of notice or hearing.
As pointed out by Justice Mendoza in Serrano, it was only in 1989 that the Labor Code was amended to enshrine
into statute the twin requirements of notice and hearing.59 Such requirements are found in Article 277 of the Labor
Code, under the heading "Miscellaneous Provisions." Prior to the amendment, the notice-hearing requirement was
found under the implementing rules issued by the then Minister of Labor in 1981. The present-day implementing
rules likewise mandate that the standards of due process, including the requirement of written notice and hearing,
"be substantially observed."60
Indubitably, the failure to substantially comply with the standards of due process, including the notice and hearing
requirement, may give rise to an actionable claim against the employer. Under Article 288, penalties may arise from
violations of any provision of the Labor Code. The Secretary of Labor likewise enjoys broad powers to inquire into
existing relations between employers and employees. Systematic violations by management of the statutory right to
due process would fall under the broad grant of power to the Secretary of Labor to investigate under Article 273.
However, the remedy of reinstatement despite termination for just cause is simply not authorized by the Labor Code.
Neither the Labor Code nor its implementing rules states that a termination for just cause is voided because the
requirement of notice and hearing was not observed. This is not simply an inadvertent semantic failure, but a
conscious effort to protect the prerogatives of the employer to dismiss an employee for just cause. Notably, despite
the several pronouncements by this Court in the past equating the notice-hearing requirement in labor cases to a
constitutional maxim, neither the legislature nor the executive has adopted the same tack, even gutting the
protection to provide that substantial compliance with due process suffices.
The Labor Code significantly eroded management prerogatives in the hiring and firing of employees. Whereas
employees could be dismissed even without just cause under the Termination Pay Law61, the Labor Code affords
workers broad security of tenure. Still, the law recognizes the right of the employer to terminate for just cause. The
just causes enumerated under the Labor Code ¾ serious misconduct or willful disobedience, gross and habitual
neglect, fraud or willful breach of trust, commission of a crime by the employee against the employer, and other
analogous causes ¾ are characterized by the harmful behavior of an employee against the business or the person
of the employer.
These just causes for termination are not negated by the absence of notice or hearing. An employee who tries to kill
the employer cannot be magically absolved of trespasses just because the employer forgot to serve due notice. Or a
less extreme example, the gross and habitual neglect of an employee will not be improved upon just because the
employer failed to conduct a hearing prior to termination.
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In fact, the practical purpose of requiring notice and hearing is to afford the employee the opportunity to dispute the
contention that there was just cause in the dismissal. Yet it must be understood – if a dismissed employee is
deprived of the right to notice and hearing, and thus denied the opportunity to present countervailing
evidence that disputes the finding of just cause, reinstatement will be valid not because the notice and
hearing requirement was not observed, but because there was no just cause in the dismissal. The
opportunity to dispute the finding of the just cause is readily available before the Labor Arbiter, and the subsequent
levels of appellate review. Again, as held in Serrano:
Even in cases of dismissal under Art. 282, the purpose for the requirement of notice and hearing is not to comply
with the Due Process Clause of the Constitution. The time for notice and hearing is at the trial stage. Then that is the
time we speak of notice and hearing as the essence of procedural due process. Thus, compliance by the employer
with the notice requirement before he dismisses an employee does not foreclose the right of the latter to question
the legality of his dismissal. As Art. 277(b) provides, "Any decision taken by the employer shall be without prejudice
to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional
branch of the National Labor Relations Commission.62
The Labor Code presents no textually demonstrable commitment to invalidate a dismissal for just cause due to the
absence of notice or hearing. This is not surprising, as such remedy will not restore the employer or employee into
equity. Absent a showing of integral causation, the mutual infliction of wrongs does not negate either injury, but
instead enforces two independent rights of relief.
The Damages' Dimensions
Award for Damages Must Have Statutory Basis
The Court has grappled with the problem of what should be the proper remedial relief of an employee dismissed
with just cause, but not afforded either notice or hearing. In a long line of cases, beginning with Wenphil Corp. v.
NLRC63 and up until Serrano in 2000, the Court had deemed an indemnification award as sufficient to answer for
the violation by the employer against the employee. However, the doctrine was modified in Serrano.
I disagree with Serrano insofar as it held that employees terminated for just cause are to be paid backwages from
the time employment was terminated "until it is determined that the termination is for just cause because the failure
to hear him before he is dismissed renders the termination of his employment without legal effect."64 Article 279 of
the Labor Code clearly authorizes the payment of backwages only if an employee is unjustly dismissed. A dismissal
for just cause is obviously antithetical to an unjust dismissal. An award for backwages is not clearly warranted by the
law.
The Impropriety of Award for Separation Pay
The formula of one month's pay for every year served does have statutory basis. It is found though in the Labor
Code though, not the Civil Code. Even then, such computation is made for separation pay under the Labor Code.
But separation pay is not an appropriate as a remedy in this case, or in any case wherein an employee is terminated
for just cause. As Justice Vitug noted in his separate opinion in Serrano, an employee whose employment is
terminated for a just cause is not entitled to the payment of separation benefits.65 Separation pay is traditionally a
monetary award paid as an alternative to reinstatement which can no longer be effected in view of the long passage
of time or because of the realities of the situation.66 However, under Section 7, Rule 1, Book VI of the Omnibus
Rules Implementing the Labor Code, "[t]he separation from work of an employee for a just cause does not entitle
him to the termination pay provided in the Code."67 Neither does the Labor Code itself provide instances wherein
separation pay is warranted for dismissals with just cause. Separation pay is warranted only for dismissals for
authorized causes, as enumerated in Article 283 and 284 of the Labor Code.
The Impropriety of Equity Awards
Admittedly, the Court has in the past authorized the award of separation pay for duly terminated employees as a
measure of social justice, provided that the employee is not guilty of serious misconduct reflecting on moral
character.68 This doctrine is inapplicable in this case, as the Agabons are guilty of abandonment, which is the
deliberate and unjustified refusal of an employee to resume his employment. Abandonment is tantamount to serious
misconduct, as it constitutes a willful breach of the employer-employee relationship without cause.
The award of separation pay as a measure of social justice has no statutory basis, but clearly emanates from the
Court's so-called "equity jurisdiction." The Court's equity jurisdiction as a basis for award, no matter what form it may
take, is likewise unwarranted in this case. Easy resort to equity should be avoided, as it should yield to positive rules
which pre-empt and prevail over such persuasions.69 Abstract as the concept is, it does not admit to definite and
objective standards.
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I consider the pronouncement regarding the proper monetary awards in such cases as Wenphil Corp. v. NLRC,70
Reta,71 and to a degree, even Serrano as premised in part on equity. This decision is premised in part due to the
absence of cited statutory basis for these awards. In these cases, the Court deemed an indemnity award proper
without exactly saying where in statute could such award be derived at. Perhaps, equity or social justice can be
invoked as basis for the award. However, this sort of arbitrariness, indeterminacy and judicial usurpation of
legislative prerogatives is precisely the source of my discontent. Social justice should be the aspiration of all that we
do, yet I think it the more mature attitude to consider that it ebbs and flows within our statutes, rather than view it as
an independent source of funding.
Article 288 of the Labor Code as a Source of Liability
Another putative source of liability for failure to render the notice requirement is Article 288 of the Labor Code, which
states:
Article 288 states:
Penalties. — Except as otherwise provided in this Code, or unless the acts complained of hinges on a
question of interpretation or implementation of ambiguous provisions of an existing collective bargaining
agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be
punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos
(P10,000.00), or imprisonment of not less than three months nor more than three years, or both such fine and
imprisonment at the discretion of the court.
It is apparent from the provision that the penalty arises due to contraventions of the provisions of the Labor Code. It
is also clear that the provision comes into play regardless of who the violator may be. Either the employer or the
employee may be penalized, or perhaps even officials tasked with implementing the Labor Code.
However, it is apparent that Article 288 is a penal provision; hence, the prescription for penalties such as fine and
imprisonment. The Article is also explicit that the imposition of fine or imprisonment is at the "discretion of the court."
Thus, the proceedings under the provision is penal in character. The criminal case has to be instituted before the
proper courts, and the Labor Code violation subject thereof duly proven in an adversarial proceeding. Hence, Article
288 cannot apply in this case and serve as basis to impose a penalty on Riviera Homes.
I also maintain that under Article 288 the penalty should be paid to the State, and not to the person or persons who
may have suffered injury as a result of the violation. A penalty is a sum of money which the law requires to be paid
by way of punishment for doing some act which is prohibited or for not doing some act which is required to be
done.72 A penalty should be distinguished from damages which is the pecuniary compensation or indemnity to a
person who has suffered loss, detriment, or injury, whether to his person, property, or rights, on account of the
unlawful act or omission or negligence of another. Article 288 clearly serves as a punitive fine, rather than a
compensatory measure, since the provision penalizes an act that violates the Labor Code even if such act does not
cause actual injury to any private person.
Independent of the employee's interests protected by the Labor Code is the interest of the State in seeing to it that
its regulatory laws are complied with. Article 288 is intended to satiate the latter interest. Nothing in the language of
Article 288 indicates an intention to compensate or remunerate a private person for injury he may have sustained.
It should be noted though that in Serrano, the Court observed that since the promulgation of Wenphil Corp. v.
NLRC73 in 1989, "fines imposed for violations of the notice requirement have varied from P1,000.00 to P2,000.00 to
P5,000.00 to P10,000.00."74 Interestingly, this range is the same range of the penalties imposed by Article 288.
These "fines" adverted to in Serrano were paid to the dismissed employee. The use of the term "fines," as well as
the terminology employed a few other cases,75 may have left an erroneous impression that the award implemented
beginning with Wenphil was based on Article 288 of the Labor Code. Yet, an examination of Wenphil reveals that
what the Court actually awarded to the employee was an "indemnity", dependent on the facts of each case and the
gravity of the omission committed by the employer. There is no mention in Wenphil of Article 288 of the Labor Code,
or indeed, of any statutory basis for the award.
The Proper Basis: Employer's Liability under the Civil Code
As earlier stated, Wenphil allowed the payment of indemnity to the employee dismissed for just cause is dependent
on the facts of each case and the gravity of the omission committed by the employer. However, I considered
Wenphil flawed insofar as it is silent as to the statutory basis for the indemnity award. This failure, to my mind,
renders it unwise for to reinstate the Wenphil rule, and foster the impression that it is the judicial business to invent
awards for damages without clear statutory basis.
The proper legal basis for holding the employer liable for monetary damages to the employee dismissed for
just cause is the Civil Code. The award of damages should be measured against the loss or injury suffered
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by the employee by reason of the employer's violation or, in case of nominal damages, the right vindicated
by the award. This is the proper paradigm authorized by our law, and designed to obtain the fairest possible
relief.
Under Section 217(4) of the Labor Code, the Labor Arbiter has jurisdiction over claims for actual, moral, exemplary
and other forms of damages arising from the employer-employee relations. It is thus the duty of Labor Arbiters to
adjudicate claims for damages, and they should disabuse themselves of any inhibitions if it does appear that an
award for damages is warranted. As triers of facts in a specialized field, they should attune themselves to the
particular conditions or problems attendant to employer-employee relationships, and thus be in the best possible
position as to the nature and amount of damages that may be warranted in this case.
The damages referred under Section 217(4) of the Labor Code are those available under the Civil Code. It is but
proper that the Civil Code serve as the basis for the indemnity, it being the law that regulates the private relations of
the members of civil society, determining their respective rights and obligations with reference to persons, things,
and civil acts.76 No matter how impressed with the public interest the relationship between a private employer and
employee is, it still is ultimately a relationship between private individuals. Notably, even though the Labor Code
could very well have provided set rules for damages arising from the employer-employee relationship, referral was
instead made to the concept of damages as enumerated and defined under the Civil Code.
Given the long controversy that has dogged this present issue regarding dismissals for just cause, it is wise to lay
down standards that would guide the proper award of damages under the Civil Code in cases wherein the employer
failed to comply with statutory due process in dismissals for just cause.
First. I believe that it can be maintained as a general rule, that failure to comply with the statutory requirement of
notice automatically gives rise to nominal damages, at the very least, even if the dismissal was sustained for just
cause.
Nominal damages are adjudicated in order that a right of a plaintiff which has been violated or invaded by another
may be vindicated or recognized without having to indemnify the plaintiff for any loss suffered by him.77 Nominal
damages may likewise be awarded in every obligation arising from law, contracts, quasi-contracts, acts or omissions
punished by law, and quasi-delicts, or where any property right has been invaded.
Clearly, the bare act of failing to observe the notice requirement gives rise to nominal damages assessable against
the employer and due the employee. The Labor Code indubitably entitles the employee to notice even if dismissal is
for just cause, even if there is no apparent intent to void such dismissals deficiently implemented. It has also been
held that one's employment, profession, trade, or calling is a "property right" and the wrongful interference therewith
gives rise to an actionable wrong.78
In Better Buildings, Inc. v. NLRC,79 the Court ruled that the while the termination therein was for just and valid
cause, the manner of termination was done in complete disregard of the necessary procedural safeguards.80 The
Court found nominal damages as the proper form of award, as it was purposed to vindicate the right to procedural
due process violated by the employer.81 A similar holding was maintained in Iran v. NLRC82 and Malaya Shipping v.
NLRC.83 The doctrine has express statutory basis, duly recognizes the existence of the right to notice, and
vindicates the violation of such right. It is sound, logical, and should be adopted as a general rule.
The assessment of nominal damages is left to the discretion of the court,84 or in labor cases, of the Labor Arbiter
and the successive appellate levels. The authority to nominate standards governing the award of nominal damages
has clearly been delegated to the judicial branch, and it will serve good purpose for this Court to provide such
guidelines. Considering that the affected right is a property right, there is justification in basing the amount of
nominal damages on the particular characteristics attaching to the claimant's employment. Factors such as length of
service, positions held, and received salary may be considered to obtain the proper measure of nominal damages.
After all, the degree by which a property right should be vindicated is affected by the estimable value of such right.
At the same time, it should be recognized that nominal damages are not meant to be compensatory, and should not
be computed through a formula based on actual losses. Consequently, nominal damages usually limited in
pecuniary value.85 This fact should be impressed upon the prospective claimant, especially one who is
contemplating seeking actual/compensatory damages.
Second. Actual or compensatory damages are not available as a matter of right to an employee dismissed for just
cause but denied statutory due process. They must be based on clear factual and legal bases,86 and correspond to
such pecuniary loss suffered by the employee as duly proven.87 Evidently, there is less degree of discretion to
award actual or compensatory damages.
I recognize some inherent difficulties in establishing actual damages in cases for terminations validated for just
cause. The dismissed employee retains no right to continued employment from the moment just cause for
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termination exists, and such time most likely would have arrived even before the employer is liable to send the first
notice. As a result, an award of backwages disguised as actual damages would almost never be justified if the
employee was dismissed for just cause. The possible exception would be if it can be proven the ground for just
cause came into being only after the dismissed employee had stopped receiving wages from the employer.

Yet it is not impossible to establish a case for actual damages if dismissal was for just cause. Particularly actionable,
for example, is if the notices are not served on the employee, thus hampering his/her opportunities to obtain new
employment. For as long as it can be demonstrated that the failure of the employer to observe procedural due
process mandated by the Labor Code is the proximate cause of pecuniary loss or injury to the dismissed employee,
then actual or compensatory damages may be awarded.

Third. If there is a finding of pecuniary loss arising from the employer violation, but the amount cannot be proved
with certainty, then temperate or moderate damages are available under Article 2224 of the Civil Code. Again,
sufficient discretion is afforded to the adjudicator as regards the proper award, and the award must be reasonable
under the circumstances.88 Temperate or nominal damages may yet prove to be a plausible remedy, especially
when common sense dictates that pecuniary loss was suffered, but incapable of precise definition.

Fourth. Moral and exemplary damages may also be awarded in the appropriate circumstances. As pointed out by
the Decision, moral damages are recoverable where the dismissal of the employee was attended by bad faith, fraud,
or was done in a manner contrary to morals, good customs or public policy, or the employer committed an act
oppressive to labor.89 Exemplary damages may avail if the dismissal was effected in a wanton, oppressive or
malevolent manner.

Appropriate Award of Damages to the Agabons

The records indicate no proof exists to justify the award of actual or compensatory damages, as it has not been
established that the failure to serve the second notice on the Agabons was the proximate cause to any loss or injury.
In fact, there is not even any showing that such violation caused any sort of injury or discomfort to the Agabons. Nor
do they assert such causal relation. Thus, the only appropriate award of damages is nominal damages. Considering
the circumstances, I agree that an award of Fifteen Thousand Pesos (P15,000.00) each for the Agabons is
sufficient.

All premises considered, I VOTE to:

(1) DENY the PETITION for lack of merit, and AFFIRM the Decision of the Court of Appeals dated 23 January
2003, with the MODIFICATION that in addition, Riviera Homes be

ORDERED to pay the petitioners the sum of Fifteen Thousand Pesos (P15,000.00) each, as nominal
damages.

(2) HOLD that henceforth, dismissals for just cause may not be invalidated due to the failure to observe the
due process requirements under the Labor Code, and that the only indemnity award available to the
employee dismissed for just cause are damages under the Civil Code as duly proven. Any and all previous
rulings and statements of the Court inconsistent with this holding are now deemed INOPERATIVE.

DANTE O. TINGA
Associate Justice

Footnotes
1
Penned by Associate Justice Marina L. Buzon and concurred in by Associate Justices Josefina Guevara-
Salonga and Danilo B. Pine.
2
Rollo, p. 41.
3
Id., pp. 13-14.
4
Id., p. 92.
5
Id., p. 131.
6
Id., p. 173.
7
Id., p. 20.

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2/1/24, 8:01 PM G.R. Nos. 178552, 178554, 178581, 178890, 179157, 179461
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for
Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY
ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V.
Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS,
represented by its Executive Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as
Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON.
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES
ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his
capacity as PNP Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD),
AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER
MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY
CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES,
DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
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CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr.
Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline
Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on
her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR
JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS
FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER
SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT
LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL
POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO,
SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
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CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to
Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007,1
signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network, Inc.,
a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a
petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners
Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for
Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also bringing the action
in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding
Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas
(KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity
of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers,4 and joined by concerned citizens and taxpayers
Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean
Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed
a petition for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga
Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church People’s Response (PCPR), which were represented by their respective officers5
who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No.
178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6
Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari
and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly
based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition for
certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in
G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the
filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser
Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito
Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP)
Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the
support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau
of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions.
Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
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of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in
excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an
actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the most essential, renders the
discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires 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.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party
has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination
of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only
that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must
show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about
to be subjected to some burdens or penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally
suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury
is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government,
especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and
their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner
has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of
penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of
locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any
charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they
have been subjected to "close security surveillance by state security forces," their members followed by "suspicious
persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise
claim that they have been branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA
9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents’ alleged action of tagging them as militant organizations fronting for the Communist Party of the
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Philippines (CPP) and its armed wing, the National People’s Army (NPA). The tagging, according to petitioners, is
tantamount to the effects of proscription without following the procedure under the law.15 The petition of BAYAN-ST,
et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common
and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must
be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts
evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not
subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot
reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in
the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as
true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which
may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be regarded as forming part of the common
knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts
have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any
fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice. Petitioners’ apprehension is
insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against
them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-
called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their
supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA
9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America17 (US)
and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and
NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA
9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution
or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo,
Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace negotiations with
the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by
the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration21 of
resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of
the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and specific interests in the questions being
raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past
rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador,
Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
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Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-organizations
KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in
2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished
under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372,
nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been
altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372.
It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been
charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the
Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its
members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute
revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also
lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the
Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in
locus standi are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no
concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also
conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are
of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have been
charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe
litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a
result of the law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every
worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper
only when there is an exercise of the spending or taxing power of Congress,28 whereas citizen standing must rest
on direct and personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation,
while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of
the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish
locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or controversy.
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.30
(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual
cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32
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Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable—definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City
was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to allege
that an application for a license to operate a radio or television station has been denied or granted by the authorities
does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any
specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas
v. Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based merely on a
perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no
actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional
interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the
requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the pre-enforcement review
of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and
"should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."40 The
plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18
U.S.C. §2339B (a) (1),41 proscribing the provision of material support to organizations declared by the Secretary of
State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and
political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows
that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a
justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA
9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been
established, much less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no
way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an
advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has
no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the
activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized,
lie beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the
realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused.45 Allegations of abuse must be anchored on real events before courts may
step in to settle actual controversies involving rights which are legally demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional
litigation are rightly excepted
46
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism
under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce
the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard
to measure the prohibited acts.
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Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no
application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates
conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on
whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two
doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v.
Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and
Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and
the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for testing the
validity of penal statutes."50 It added that, at any rate, the challenged provision, under which the therein petitioner
was charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial invalidation
of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded
that the therein subject election offense53 under the Voter’s Registration Act of 1996, with which the therein
petitioners were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in the Estrada
case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting
the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation
as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and
overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice
Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their
very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the
area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt
for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist,
"we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick
v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists under which the Act
would be valid." As for the vagueness doctrine, it is said that a 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."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment
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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." 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. 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. But, as the U.S. Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort," and is generally disfavored. In 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.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law)
or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution
in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally subject to state regulations may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand
what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial
invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very existence may cause others not before
the court to refrain from constitutionally protected speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully
mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on
protected speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is
inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In
fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains
from diminishing or dissuading the exercise of constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and
"underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental
rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered.
No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal
statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and
concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are
not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a
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test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused
from defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal statute
is vague or overbroad, notwithstanding that the law is clear as applied to him.65 (Emphasis and underscoring
supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of
protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad law’s "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect
on the speech of those third parties.66 (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that the US
Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment,68
and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks
on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected
expression."71
Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness
analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge
against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the
Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on
its face and in its entirety."72 It stressed that "statutes found vague as a matter of due process typically are
invalidated only 'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be
examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under
law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine into play
in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment
punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised
Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases,
were actually charged with the therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be
culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or
under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a
condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by
the desire to coerce the government to give in to an unlawful demand.
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In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the
element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of
expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed
to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the
government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out
or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a
protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of
an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the
offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case78 illustrated that the fact that the
prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading
"White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than
conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the
law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true
a fortiori in the present case where the expression figures only as an inevitable incident of making the element of
coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through
speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course
of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of
language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of
speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring
supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited
conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis. 1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal
statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes
challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal
statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should
not be required to await and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under
RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible.
The Court reminds litigants that judicial power neither contemplates speculative counseling on a statute’s future
effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in
Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

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2/1/24, 8:02 PM G.R. No. 213581
Today is Thursday, February 01, 2024
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EN BANC
[ G.R. No. 213581. September 19, 2017 ]
BANGKO SENTRAL NG PILIPINAS, PETITIONER, VS. COMMISSION ON AUDIT, RESPONDENT.
DECISION
LEONEN, J.:
Due process in administrative proceedings does not require the submission of pleadings or a trial-type of
hearing. However, due process requires that a party is duly notified of the allegations against him or her and is given
a chance to present his or her defense.
This reviews the Decision1 dated April 12, 2013 and Resolution2 dated May 6, 2014 of the Commission on Audit,
finding Evelyn T. Yap (Yap) and Perry B. Dequita (Dequita) and other officers of the Bangko Sentral ng Pilipinas,
Cotabato Branch jointly and solidarily liable for cash shortage in the amount of P32,701,600.00
The facts as established by the parties are as follows:
On May 27, 2005, Mariam Gayak (Gayak), Bank Officer III of the Bangko Sentral ng Pilipinas, Cotabato Branch
was assigned to the Davao Regional Office. In light of Gayak's transfer, Verlina Silo (Silo) and Yap were designated
as Acting Bank Officer III and Bank Officer II, respectively.3
On June 7, 2005, Silo transferred her cash accountabilities in the amount of P988,105,695.00 to Yap. Six (6)
months later, Gayak returned to the Cotabato Branch and Yap had to turn over her cash accountability back to Silo.4
From December 5, 2005 to January 6, 2006, the Commission on Audit audited and examined Yap's cash
accountability.5 The audit was needed before Yap could transfer her cash accountability back to Silo.6
The Commission on Audit stated that in the morning of December 22, 2005, its Audit Team finished auditing
Silo's accountability and proceeded to audit Yap's cash accountability. Later that day, the Audit Team could no longer
locate Silo.7
That same day, Silo sent Dequita, Manager of Bangko Sentral ng Pilipinas, Cotabato Branch, a text message
where she admitted misappropriating a portion of Yap's accountability when she still had custody over it.8 Dequita
immediately informed the Audit Team of Silo's text message. This prompted the Audit Team to conduct a piece-by-
piece cash count, not just a random sampling count. The Audit Team discovered the irregularity when they counted
the P1,000.00 notes9 and found shortage in the amount of P32,701,600.00 from Yap's cash accountabilities.10
On December 23, 2005, Silo executed an affidavit where she admitted sole responsibility for the cash
shortage.11
Bangko Sentral ng Pilipinas formed a Fact Finding Task Force to investigate the matter and Silo appeared
before it.12 In the presence of the Fact Finding Task Force, Yap, and Dequita, Silo executed another affidavit13 where
she again admitted repeatedly stealing cash from her accountabilities for a period of about five (5) years.
Silo then assigned to Bangko Sentral ng Pilipinas all the benefits she would receive from the Bangko Sentral ng
Pilipinas Provident Fund, her retirement benefits from the Government Service Insurance System, and the cash
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equivalent of her leave credits to pay for the amount she misappropriated.14
On January 18, 2006, the Commission on Audit directed Yap to explain and return the cash shortage. Yap
denied responsibility over the cash shortage and attached Silo's affidavit where she admitted sole liability over the
missing cash.15
The Commission on Audit filed administrative charges of dishonesty and grave misconduct, and criminal
charges of malversation and violation of Section 3(E) of Republic Act No. 3019 or the Anti-Graft and Corrupt
Practices Act against Dequita, Silo, and Yap before the Office of the Ombudsman.16
On April 5, 2006, the Office of the Ombudsman directed Yap, Silo, and Dequita to submit their respective
counter-affidavits for the administrative complaint. But the order sent to Silo at her office and home addresses were
both returned unserved.17
On July 31, 2006, the Office of the Ombudsman18 found Silo liable of the administrative charge against her but
dismissed the administrative charges against Dequita and Yap. 1aшphi1
With Silo's admission of repeatedly misappropriating the cash under her custody and control for her personal
use, the Office of the Ombudsman found her solely liable for dishonesty and grave misconduct.19 It held:
Since all evidence points to respondent Silo as the sole perpetrator of the acts herein
complained of, there is no basis to hold respondents Yap and Dequita administratively liable for the
shortage, notwithstanding the fact that the accountability was under respondent Yap at the time of
audit. Important emphasis should be made that respondent Silo assumed full responsibility of the
cash shortage and totally absolved respondents Yap and Dequita of any involvement or participation
in the loss of the funds.20
The Office of the Ombudsman also took note that Silo's illegal activities took place before Dequita became
Branch Manager and long before Silo turned over her cash accountabilities to Yap.21
The Office of the Ombudsman likewise absolved Yap and Dequita from negligence in the performance of their
duties. It held that Yap's only lapse was her failure to conduct a piece-by-piece count of the P988,105,695.00 that
Silo turned over to her on June 7, 2005. However, the Office of the Ombudsman stated that it was physically
impossible for Yap to do a piece-by-piece count of the staggering amount of cash under her custody and to insist on
a piece-by-piece count would disturb normal banking operations.22
The dispositive portion of the Office of the Ombudsman July 31, 2006 Decision read:
WHEREFORE, PREMISES CONSIDERED, there being insufficient evidence against
respondents Perry B, Dequita and Evelyn T. Yap, the case as against them is hereby
ordered DISMISSED. On the other hand, there being substantial evidence against respondent
Verlina B. Silo, this Office finds her guilty of Dishonesty and Grave Misconduct. Pursuant to Section
52(1) & (3) in relation to Section 57, Rule IV, of CSC Resolution No. 991936 dated August 31, 1999,
respondent Verlina B. Silo is hereby meted the penalty of DISMISSAL FROM PUBLIC
SERVICE together with the accessory penalties of cancellation of eligibility, forfeiture of retirement
benefits and perpetual disqualification for reemployment in the government service. The Honorable
Amando M. Tetangco, Jr., Governor of the Banko Sentral ng Pilipinas, A. Mabini Street, Malate,
Manila, is hereby directed to implement this Decision immediately upon receipt hereof and to submit
to this Office a compliance report within ten (10) days from its implementation.
SO DECREED.23
The Commission on Audit moved for the partial reconsideration of the Ombudsman's dismissal of the
administrative charges against Dequita and Yap.24
On July 4, 2008, the Office of the Ombudsman denied25 the Commission on Audit's motion for partial
reconsideration. The Commission on Audit did not appeal the denial of its motion.
On July 28, 2006, the Office of the Ombudsman26 found probable cause in the criminal case against Silo, but
none against Deq1,1ita or Yap. The dispositive portion of the Ombudsman Resolution read:
WHEREFORE, all the foregoing premises considered, and finding probable cause against
respondent Verlina B. Silo, let the enclosed Informations for Malversation and Violation of Section
3(e) of RA 3019 be filed with the Regional Trial Court of Cotabato City and preferably to be
prosecuted by the Special Prosecution Bureau of this Area Office. Finding no probable cause
against respondents Perry B. Dequita and Evelyn T. Yap, the criminal case as against them is
hereby ordered DISMISSED.
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SO RESOLVED.27
The Commission on Audit moved for the partial reconsideration of the dismissal of the criminal case against
Dequita and Yap28
Due to the dismissal of the administrative case against Yap and Dequita, the Bangko Sentral ng Pilipinas Office
of the General Counsel and Legal Services opined that Yap's liability to restitute the cash shortage under her
accountability had been extinguished. However, it declined to comment on the status of Yap's accounts receivables
which were booked on December 29, 2005. Instead, it recommended that the matter be referred to the Commission
on Audit for its proper evaluation.29
On March 24, 2008, Pedro P. Tordilla, Managing Director of Bangko Sentral ng Pilipinas Regional Monetary
Affairs Sub-Sector, sent the Commission on Audit a request for an evaluation of the status of Yap's liability,
considering the dismissal of the administrative case against her.30
The Assistant Commissioner of the Corporate Government Sector of the Commission on Audit opined that any
action on the request for opinion should be subject to the final outcome of the criminal case against Yap, Silo, and
Dequita.31
On July 18, 2008, the Office of the Ombudsman32 denied the Commission on Audit's motion for partial
reconsideration of the Resolution dated July 28, 2006. The Commission on Audit did not appeal the denial of its
motion.
On April 12, 2013, instead of providing an opinion regarding Yap's liability, the Commission on Audit issued a
Decision33 denying the request to extinguish Yap's liability in the cash shortage and holding her liable for it.
Furthermore, the Commission on Audit held Dequita, as well as the other Cotabato Branch Managers for the period
of March 1996 to 2000, and the responsible officer/s who designated Silo to two (2) separate positions at the Cash
Operations Unit to be jointly and solidarily liable with Yap.
The Commission on Audit held that while Silo had already admitted causing the cash shortage of
P32,701,600.00, her admission of guilt did not automatically release Yap and Dequita from their responsibility over
the funds entrusted to them. They still needed to "prove that they exercised the highest degree of care in performing
their job in order to protect and safeguard their accountabilities."34
The dispositive portion of the Commission on Audit Decision read:
WHEREFORE, premises considered, the request to extinguish the receivable from Ms. Yap
arising from her shortage in the amount of [P]32,701,600.00 is DENIED. Moreover, Mr. Dequita and
the other branch managers for the period March 1996 to year 2000, as well as the responsible
officer/s designating Ms. Silo with two (2) positions at the [Cash Operations Units], in violation of the
dual control policy, are also held jointly and solidarily liable for the lost amount. For this purpose, the
Supervising Auditor. [Bangko Sentral ng Pilipinas] is directed to identify and notify these bank
officers of their liability, and ensure that they are also included in the receivable account as persons
jointly and solidarily liable with Ms. Yap.35
On May 6, 2014, the Commission on Audit36 denied Bangko Sentral ng Pilipinas' Consolidated Motion for
Reconsideration.
On July 28, 2014, petitioner Bangko Sentral ng Pilipinas filed a Petition for Certiorari37 where it asserts that Silo
has assumed full responsibility of the cash shortage by admitting that she repeatedly took cash from her
accountabilities for five (5) years without anyone's assistance.38
Silo's affidavit read:
At the [Bangko Sentral ng Pilipinas] for lack of manpower, there was a time that started in March
1996 that I held two (2) positions at the Cash Operations Unit. One was as a Currency Operations
Officer and at the same time as Assistant Cashier. I held the said positions for about four (4) years.
I took advantage of the said situation by unlawfully taking part of my cash accountabilities for my
personal use. I started embezzling the [Bangko Sentral ng Pilipinas]'s funds in my cash accountabilities
from 1996 continuously until 2000 while we were still at the former [Bangko Sentral ng Pilipinas] Office
situated at Don Rufino Alonzo St., Cotabato City which I made alone or without the knowledge or
participation of any of my officemates in the Bank.
I started by taking one wrapper of [P]1000 ([P]100,000.00) a day from my cash accountabilities
kept inside the Cash Vault which I first placed inside a green metal cash box which I could carry outside
the Cash Vault without anybody noticing or minding what the contents thereof were. Thereafter, from
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the said box I transferred the wrapper of [P]1000 into my bag. I was able to take out about five (5)
wrappers of [P]1000 a week or 20 wrappers or [P]2 million a month using the same procedure mostly to
fund the checks that I issued in payment of interests of my loans/obligations from the banks and
individual creditors and accounts payable to all my suppliers of merchandise for my businesses.
I also used the [Bangko Sentral ng Pilipinas]'s funds which I took from my cash accountabilities to
pay for the medical expenses incurred successively and/or simultaneously due to the illnesses suffered
by my sister, mother and brother. My sister had cancer and my mother had a unique kind of decease
(sic) before they eventually died. My son Daniel was electrocuted in 2000. I had to assist them
financially as they ha[d] no enough money to pay for huge amount of medical expenses. My financial
obligations increased as I was swindled in connection with my jewelry business, my receivables from
government agencies (ARMM­-Maguindanao offices) were not collected and I received death threats
from my creditors and debtors to the point that my eldest son was abducted to serve as a warning to
me and my family so as not to pursue collecting my receivables from them.
There was a time when my shortage which then already consisting of five (5) bundles of [P]1,000
currency notes or a total of [P]5 million were not discovered by those who audited my cash
accountabilities. I hid them at the back of the currency stockpiles inside the Cash Vault.
Little by little, I replaced the [P]1000 bundles of currency notes with [P]100 currency notes by
exchanging some of the [P]1000 currency notes in my cash accountabilities with any of the tellers while
we were still at the old [Bangko Sentral ng Pilipinas] Office and even at the present [Bangko Sentral ng
Pilipinas] Office site until I was able to turn the 37 bundles of [P]1000 notes which I took for my
personal use into 37 bundles of [P]100 currency notes with insertions of few pieces of [P]1000 without
any auditor/head of the branch discovering the said shortage except on December 23, 2005 by the
[Commission on Audit] Auditors from Manila.
My cash accountabilities had been audited or supposedly physically or actually counted by the
[Internal Audit Office] Auditors, Branch Special Services Staff Auditors, (Commission on Audit] Auditors
and Heads of Cotabato branch without finding or discovering any shortage therefrom.
I am executing this affidavit to attest to the truth of the foregoing facts, to relieve all my officemates
from any responsibility, obligation or damage that may have been caused the [Bangko Sentral ng
Pilipinas] due to the shortage in my cash accountabilities which I admit to be taken by me for my
personal use.
I truly and sincerely regret what I have done. I apologize for all the damages and inconveniences
that I have caused my officemates and the management.39 (Emphasis in the original)
Petitioner points out that the Office of the Ombudsman has dismissed both administrative and criminal charges
against Yap and Dequita, finding only Silo responsible for the cash shortage.40 Additionally, it emphasizes that the
dismissal of the administrative and criminal charges against Yap and Dequita has become final and executory) since
the Commission on Audit did not elevate them for appeal. Thus, there was no basis for the Commission on Audit's
denial of Yap's request for relief from accountability. Neither is there any basis to hold Dequita or any other officers
from the Bangko Sentral ng Pilipinas, Cotabato Branch jointly and solidarity liable with Yap for the shortage.41
In its Supplemental Petition,42 petitioner underscores that the assailed Decision was issued in response to its
request for opinion on the extinguishment of Yap's liability on the cash shortage. It reiterates that it never filed a case
against Yap before respondent, neither did respondent require the filing of any pleadings or motions before it
rendered the assailed Decision.43
Petitioner maintains that it was only allowed an opportunity to be heard when it filed its Motion for
Reconsideration, which respondent denied, while Yap, Dequita, and the other bank officers were never given the
opportunity to present their own evidence.44
Petitioner asserts that with the Office of the Ombudsman's dismissal of the administrative and criminal charges
against Yap and Dequita, the proper remedy was to appeal the dismissals and not for respondent to render the
assailed Decision.45
In its Resolution46 dated August 5, 2014, this Court required the Commission on Audit to comment on the
petition.
In its Comment,47 respondent Commission on Audit insists that the principle of res judicata is inapplicable in the
case at bar because jurisprudence has consistently held that res judicata does not attach to decisions rendered by
the Office of the Ombudsman.48
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Respondent likewise declares that the administrative and criminal charges before the Office of the Ombudsman
are distinct from its audit proceedings.49
Respondent states that as public officials, Yap and Dequita should be held accountable for the cash shortage
because of their negligence that emboldened Silo to brazenly steal money.50
Respondent further argues that it observed due process because Yap, Dequita, and Bangko Sentral ng Pilipinas
were able to present their side during the proceedings before the Office of the Ombudsman.51
In its Resolution52 dated November 18, 2014, this Court directed petitioner to file a reply. Petitioner then filed its
Reply53 on February 24, 2015, where it denies that it invoked the principle of res judicata as its defense. It clarifies
that what it disputes is the lack of due process with respondent's issuance of the assailed Decision in response to
petitioner's request for opinion:54
5. Public Respondent [Commission on Audit] failed to afford Mr. Dequita and Ms. Yap a reasonable
opportunity to address the "case" against them prior to the issuance of the Assailed Decision.
Public Respondent [Commission on Audit]'s allegations that it afforded Mr. Dequita and Ms. Yap
due process since they "considered their defenses" in their pleadings filed before the
Ombudsman, and that Mr. Dequita and Ms. Yap were later allowed to file their "comprehensive
Motion for Reconsideration" (of the Assailed Decision), do not hold water. It begs the question
on how Mr. Dequita and Ms. Yap could have filed a "comprehensive Motion for Reconsideration"
when they were not parties to the Request for Opinion in the first place, since it was the
[Bangko Sentral ng Pilipinas] that prepared and filed said request. Simply, these allegations are
mere afterthoughts that do not cure the fact that due process was not afforded to Mr. Dequita
and Ms. Yap.55
Petitioner insists that the Commission on Audit erred in treating its request for opinion as a complaint against
Yap and Dequita.56 Furthermore, petitioner underscores that respondent failed to follow its own rules when it issued
the assailed Decision.57
In its Resolution58 dated March 17, 2015, this Court directed the parties to file their respective memoranda. 1aшphi1
In its Memorandum,59 respondent posits that it is irrelevant if it construed the request for opinion from petitioner
as a complaint because petitioner cannot limit or control respondent's constitutional mandate to audit and settle
government accounts.60
Respondent asserts that a formal hearing or presentation of pleadings is not required in exercising its
jurisdiction to act on requests for losses.61 It claims that it followed the requirements of due process because it
studied the records and evidence submitted during the audit proceedings and in the proceedings before the Office of
the Ombudsman.62
Respondent also questions why petitioner is representing Yap, stating, "[Bangko Sentral ng Pilipinas] is bereft
of locus standi to claim non­observance of due process rights. Violation of due process is a personal defense that
can only be asserted by the persons whose rights have been allegedly violated."63
In its Memorandum,64 petitioner reiterates that the assailed Decision was issued in response to a request for
opinion and not a complaint. Moreover, respondent resorted to ex parte proceedings because Yap, Dequita, and the
other bank officers of the Cotabato Branch were denied the chance to present evidence in their behalf and to refute
the allegations against them.65
Petitioner likewise highlights that it took respondent five (5) years to issue its Decision on the request for
opinion, violating the constitutional rights of Yap, Dequita, and the other bank officials to a speedy disposition of
cases.66
The only issue for this Court's resolution is whether or not the Commission on Audit committed grave abuse of
discretion in issuing its assailed April 12, 2013 Decision.
I BE IT RESOLVED FURTHER, that such request for relief shall be accompanied by the documents
Respondent Commission on Audit is the guardian of public funds and the Constitution has vested it with the
mandate to "examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or
uses of funds and property, owned and held in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled corporations with original charters[.]"67
Respondent refers to its constitutional mandate to support its claim that it was well within its power to treat the
request for opinion from the Bangko Sentral ng Pilipinas as a request for relief from accountability:
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31. Indubitably, as a specialized constitutional body, the [Commission on Audit] is effectively clothed
with ample knowledge on auditing and settlement accounts of government funds and properties.
How respondent [Commission on Audit] construed the alleged letter request is a trivial matter,
for as long as it performed its mandated duty of judiciously examining documents and records
prior to arriving at its decision. The authority of the [Commission on Audit] could not be limited or
controlled by petitioner which insists that it was simply seeking guidance on booking of Yap's
accounts receivable.68
While this Court has time and again recognized respondent's mandate,69 this does not give it the authority to
disregard the basic tenets of due process or brush aside its own rules of procedure.
The request for opinion was dated March 24, 2008;70 hence, the 1997 Commission on Audit Rules of Procedure
(1997 Rules) apply. Rule VIII, Section 1 of the 1997 Rules recognizes a money claim as the only original case that
may be directly filed with the Commission Proper:
RULE VIII
Original Cases Filed Directly with the Commission Proper
Section 1. Money Claim. - Cases involving money claim against the Government cognizable by the
Commission Proper may be filed directly with the Commission Secretary.
Rule VIII of the 1997 Rules then lays out in detail the pleadings to be submitted to support a money claim, with
their corresponding periods for compliance. Under the 1997 Rules, the following pleadings are to be submitted for
the proper resolution of an original case filed directly with the Commission Proper; petition,71 answer,72 and reply.73
Respondent does not deny that it treated the request for opinion from Bangko Sentral ng Pilipinas as a request
for relief from accountability for losses,74 which it avers falls under its original jurisdiction in its 2009 Revised Rules
of Procedure (2009 Rules):
RULE VIII
Original Cases Filed Directly with the Commission Proper
Section 1. Original Jurisdiction. - The Commission Proper shall have original jurisdiction over: a)
money claim against the Government; b) request for concurrence in the hiring of legal retainers by
government agency; c) write off of unliquidated cash advances and dormant accounts receivable in
amounts exceeding one million pesos (P1,000,000.00); d) request for relief from accountability for
los[s]es due to acts of man, i.e., theft, robbery, arson, etc., in amounts in excess of Five Million
pesos (P5,000,000.00). (Emphasis supplied)
However, to reiterate, the applicable rules in the case at bar are the 1997 Rules, not the 2009 Rules. The 1997
Rules do not provide a procedure for the filing of a request for relief from accountability; instead, the procedure for a
request for relief from accountability can be found in Commission on Audit Resolution No. 2001-010 dated June 21,
2001, the pertinent portions of which state:
SUBJECT: Amendment of [Commission on Audit] Resolution No. 93-605, dated August
3, 1993, on the delegation of authority of [Commission on Audit] officials to decide
on requests for relief from money and/or property accountability.
WHEREAS, under [Commission on Audit] Resolution No. 93-605, dated August 3, 1993, this
Commission delegated to certain [Commission on Audit] officials the authority to decide/act on request
for relief from money and/or property accountability;
....
BE IT RESOLVED, that all requests for relief from money and/or property accountability shall be
treated like any ordinary case under the jurisdiction and authority of the Central and Regional Directors
or the Unit Auditors to decide.
required under [Commission on Audit] Circular No. 92-386 for accountable officers of local government
units and those required under [Commission on Audit] Memorandum No. 92-751 for accountable
officers in the corporate and national sectors.
BE IT RESOLVED FINALLY, that the Chairman of this Commission be authorized to disseminate
this Resolution for the guidance of all concerned.
This Resolution shall take effect immediately.75 (Emphasis supplied)
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Commission on Audit Memorandum No. 92-751 dated February 24, 1992, in turn, provides:
TO : All [Commission on Audit] Directors/Officers-in­-Charge, Department Auditors,
Heads of Auditing Units and All Others Concerned.
SUBJECT : Documentation on Petitions/Requests for Relief from Accountability.
....
In order, therefore, to ensure or facilitate the evaluation and resolution of applications for relief from
accountability with utmost accuracy and dispatch, and if only to correct or put an end to the commission
of the afore-cited deficiencies, the [Commission on Audit] Director/Officer-in-Charge and/or Unit Head
concerned should, henceforth, see that the following requirements are first duly complied with and that
the documents called for thereunder accompany the pertinent requests for relief to be submitted to the
Commission, to wit:
1. The basic notice of loss to be filed immediately after the discovery of the loss and
the request for relief from accountability which should be filed by the proper
accountable officer within the reglementary period of 30 days from the occurrence
of the loss, with the Auditor concerned or the Commission, as the case may be.
1.1 In case of delay in the filing of the aforesaid notice and request,
satisfactory explanation or the reason(s) for such delay should be
submitted, after which the reasons/explanation given should be
verified or confirmed by the Auditor concerned.
1.2 If the occurrence of the loss has also been reported to other police
agencies, like the [National Bureau of Investigation], [Criminal
Investigation Service], etc., the progress/final investigation report
thereon should be submitted.
2. Copy of the Investigation, Inventory and Inspection report of the proper [Commission
on Audit) personnel on the facts and circumstances surrounding the loss;
3. Affidavit or Sworn Statement of the proper accountable officer on the facts and
circumstances surrounding the said loss, supported by the Affidavit of two (2)
disinterested persons who have personal knowledge of such fact of loss;
4. Comment and/or recommendation of the Agency Head concerned on the request;
5. Comment and/or recommendation of the [Commission on Audit] Director/[Officer-in-
Charge] and/or Unit Head on the propriety of the request, together with a full
statement of material facts;
6. Exact or accurate amount of government cash or book value of the property, subject
of the request for relief;
7. Memorandum Receipts covering the properties subject of the request, if any; and
8. A categorical determination by the Director/Auditor concerned on the absence of
fault or negligence on the part of the accountable officer in the handling,
safekeeping, etc. of the funds and properties under his custody as evidenced by a
recital of the precautionary/security measures adopted to protect or safeguard
them and the like.76 (Emphasis supplied)
Respondent itself prescribed the documentary requirements which should accompany a request for relief from
accountability. Commission on Audit Memorandum No. 92-751 requires the submission of a basic notice of loss
"with the Auditor concerned or the Commission" and a copy of the investigation report by the proper Commission on
Audit Personnel. The accountable officer is also required to submit a sworn statement, while the agency head and
Commission on Audit Director are expected to submit their respective comment or recommendation on the request
for relief. Likewise, documentary evidence on the total missing amount and a categorical determination from the
director or auditor concerned on the lack of negligence on the part of the accountable officer should accompany the
request for relief.
None of these documents accompanied petitioner's request for opinion. Instead, the request for opinion was
meant ''to seek guidance from Public Respondent [Commission on Audit], with regard to the proper booking of the
Accounts Receivable by Ms. Yap, in relation to [the Office of] the Ombudsman's dismissal of the administrative case
against her."77
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Clearly, respondent erred in treating the request for opinion as a request for relief from accountability.
II
Even if this Court agrees with respondent that its 2009 Rules apply in the case at bar and not its 1997 Rules, its
arguments still fail to convince.
The 2009 Rules have expanded the Commission Proper's original jurisdiction provided for under the 1997 Rules
by authorizing it to act not only on money claims but also on several kinds of request. These requests are (a) for
hiring of legal retainers, (b) for write-offs of unliquidated cash advances and dormant amounts, and (c) for relief from
accountability for losses due to acts of man.78 Nonetheless, despite the Commission Proper's expanded jurisdiction,
the Commission on Audit's 2009 Rules still prescribe the proper procedure to be followed for the resolution of the
original case.
Money claims against the government continue to require the submission of a petition and an answer, with the
petitioner having the option to file a reply at his or her discretion.79 On the other hand, a request of a government
agency to hire a legal retainer is to be filed with the Commission on Audit Office of the General Counsel, who shall
then act on the request in respondent's behalf.80
The procedure for requests for write-offs of unliquidated cash advances and dormant accounts and for relief
from accountability for losses due to acts of man can be found in Rule VIII, Section 4, which states:
Section 4. Other Cases. - Requests for write off of accounts receivable or unliquidated cash
advances exceeding P1 million; or relief from accountability for acts of man such as robbery, theft,
arson in excess of P5 million; or approval of private sale of government property; or other matters
within the original jurisdiction of the [Commission Proper], shall be filed with the Commission
Secretary. The Commission Secretary shall refer the case to the Central/Regional Office concerned
for comment and recommendation and thereafter to the Legal Services Sector, for preparation of
the draft decision for consideration of the Commission Proper. (Emphasis supplied)
Respondent claims that there is nothing in Rule VIII, Section 4 of the 2009 Rules that directs it to conduct
adversarial proceedings with the submission of a request for relief from accountability.81 It further claims that its
assailed Decision was arrived at after a careful evaluation of the evidence submitted by the parties in the audit
proceedings and the proceedings before the Office of the Ombudsman.82
Nonetheless, this still does not cure the glaring defect that Yap and Dequita were not parties to the request for
opinion or request for relief from accountability, yet respondent found them liable for the cash shortage. Much worse,
respondent also tried to pin liability on other bank officers who were never part of the request for opinion or of any of
the proceedings before the Office of the Ombudsman.
Respondent insists that Yap and Dequita were not deprived of their right to due process since they filed their
counter-affidavits in the administrative proceedings before the Office of the Ombudsman, while Yap even filed a
reply to respondent's demand letter after the audit was conducted.83 Respondent also highlights that petitioner filed
a "comprehensive Motion for Reconsideration"84 on the assailed Decision. But as respondent itself pointed out,
administrative and criminal proceedings before the Office of the Ombudsman are different from the audit
proceedings before it:
16. There is another reason why the dismissal of administrative and criminal charges against Yap
and Dequita by the Office of the Ombudsman does not necessarily foreclose the possibility of
them being held accountable by the [Commission on Audit]. The administrative and criminal
charges before the Office of the Ombudsman and the [Commission on Audit] audit are distinct
proceedings. The first involves the determination of (1) administrative liability of public officers
and (2) the fact of the commission of a crime. On the other hand, the second relates to the
administrative aspect of the expenditure or use of public funds. As distinct proceedings, they
can proceed independently of each other.85
Yet despite admitting the independent nature of the proceedings before the Office of the Ombudsman from its
own audit proceedings, respondent still contends that its review and evaluation of the counter-affidavits filed by Yap
and Dequita before the Office of the Ombudsman already satisfied the requirements of due process.
This Court is not convinced.
Due process in administrative proceedings does not require the submission of pleadings or a trial-type of
hearing. Due process is satisfied if the party is duly notified of the allegations against him or her and is given a
chance to present his or her defense. Furthermore, due process requires that the proffered defense should have
been considered by the tribunal in arriving at its decision.86
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This finds basis in Ang Tibay v. Court of Industrial Relations,87 which ruled that admini trative due process only
requires the following:

(a) The party should be allowed to present his or her own case and submit supporting evidence;

(b) The deciding tribunal must consider the party's evidence;

(c) There is evidence to support the tribunal's decision;

(d) The evidence supporting the tribunal's decision must be substantial or such "relevant evidence as a
reasonable mind might accept as adequate to support a conclusion";

(e) The tribunal's decision was based on the evidence presented or the records of the case disclosed to
the parties;

(f) The tribunal's decision must be based on the judges' independent consideration of the facts and law
governing the case; and

(g) The tribunal's decision must be rendered such that the issues of the case and the reasons for the
decisions are known to the parties.88

It is beyond dispute that Yap, Dequita, and the other bank officials of the Bangko Sentral ng Pilipinas, Cotabato
Branch were denied due process with the issuance of the assailed Commission on Audit Decision.

Respondent rendered its assailed Decision in blatant disregard to its own rules, treating the request for opinion
as a request for relief from accountability even if the former did not include the required documents and comments
or recommendations needed under either the 1997 Rules or 2009 Rules. Furthermore, the request for opinion was
filed by petitioner alone, yet the assailed Decision found Yap, Dequita, and other bank officers of the Cotabato
Branch jointly and solidarily liable, even if they were never parties to the request for opinion or request for relief from
accountability.

It was an error amounting to grave abuse of discretion to hold Yap liable, and Dequita and the other bank
officers of the Cotabato Branch jointly and solidarity liable with Yap for the cash shortage without an actual complaint
being filed and without giving them the chance to defend themselves. Thus, the assailed Decision violated the basic
tenets of due process and must be annulled and set aside, However, in the absence of a complaint, this Court
cannot grant petitioner's prayer for this Court to render judgment relieving Yap, Dequita, and the other bank officers
from accountability over the cash shortage. Nonetheless, the Office of the Ombudsman has already rendered
judgment on Yap and Dequita's liability by dismissing the administrative and criminal charges against them.

WHEREFORE, the Petition is GRANTED. The Commission on Audit Decision No. 2013-064 dated April 12,
2013 and its En Banc Resolution dated May 6, 2014, holding Evelyn T. Yap, Perry B. Dequita, and the other bank
officers of Bangko Sentral ng Pilipinas, Cotabato Branch jointly and solidarily liable for the cash shortage,
are REVERSED and SET ASIDE.

SO ORDERED.

Sereno, C. J., on official leave.

Carpio, (Acting C. J.), Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Jardeleza, Caguioa,
Martires, and Reyes, Jr., JJ., concur.

Perlas-Bernabe, J., on official business.

Tijam, J., on official business.

Gesmundo, J., on official business.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on September 19, 2017 a Decision/Resolution, copy attached herewith, was rendered by
the Supreme Court in the above-entitled case, the original of which was received by this Office on December 7,
2017 at 2:50 p.m.

Very truly yours,

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2/1/24, 8:12 PM G.R. No. 180745 2/1/24, 8:12 PM G.R. No. 180745

Today is Thursday, February 01, 2024 Baguio Residential Property 1995 [P]2 Million

Baguio Residential Property 1994 [P]2 Million

Dump Trucks 1991 [P]1.6 Million

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive Elf 1991 [P]800,000
Van 1999 [P]680,000

Van 1999 [P]850,000

Car 2002 [P]800,00016

Finally, Atty. Acuña and Pizarro averred that Iglesias made false representations when she dechtred in her letter
to then President Gloria Macapagat-Arroyo that she was taking up Masters in Customs Administration, instead of
Masters in Management.17 They also alleged that Iglesias falsified her Personal Data Sheet when she antedated its
Manila execution.18

THIRD DIVISION They charged Iglesias with the following:

[ G.R. No. 180745. August 30, 2017 ] a) Making untruthful statements in her SAL[N]s a,nd failing to disclose all of her properties in her SAL[N]s
(Article 171(4)19 of the Revised Penal Code);
ALBERTA DE JOYA IGLESIAS, PETITIONER, VS. THE OFFICE OF THE OMBUDSMAN, GEORGE M. JEREOS,
ROBERTO G. GEOTINA, JUAN T. TAN, KRISTINE MORALES, AND ALBERTO LINA, RESPONDENTS. b) Failing to submit her SAL[N]s as required by Sections (sic) 11 in relation to Section 820 of Republic Act No.
6713 and Section 721 of Republic Act No. 3019;
DECISION
c) Engaging in acts of dishonesty and misconduct by making false representations about her education to Her
LEONEN, J.: Excellency, Gloria Macapagal Arroyo and by indicating a false date on her Personal Data Sheet; and

In observing administrative due process, it is essential that the accused be accorded the right to be informed of
the accusations against him or her. Fair play requires that the accused be equipped with the necessary information
for the preparation of his or her defense.
This is a Petition for Review1 under Rule 45 of the Rules of Court, praying that the December 22, 2006
Decision2 and November 21, 2007 Resolution3 of the Court of Appeals in CA-G.R. SP No. 89585 be nullified and set
aside.4 The Court of Appeals affirmed the Office of the Ombudsman February 7, 2005 Resolution5 and the Office of
the Deputy Ombudsman for Luzon February 21, 2005 Joint Order6 in OMB L-C-04-0083-B and OMB­L-A-04-0057-B,
dismissing petitioner Alberta de Joya Iglesias (Iglesias) from service.7 Petitioner prays that judgment be rendered
absolving her of any criminal and administrative liability and reinstating her to her former position as Acting District
Collector in the Port of San Fernando.8
d) [A]cquiring, during her incumbency an amount of property and/or money manifestly out of proportion to her
salary and to her other lawful income (Section 8,22 [Republic Act No.] 3019); and
e) [C]oncealing unlawfully acquired property (Sections 2 and 12 in relation to Section 1(b)(1-3)23 of Republic
Act No. 1379)[.]24
The administrative case was docketed as OMB-L-A-04-0057-B, while the criminal case was docketed as OMB-
L-C-04-0083-B.25
On April 12, 2004, Iglesias filed her Counter-Affidavit with Counter-­Complaint26 in the administrative case. She
produced copies of her filed annual SALNs since 1989 and attached them to her Counter-Affidavit.27

Petitioner Iglesias was employed as Acting District Collector by the Bureau of Customs on October 1, 2002. She
was assigned at the Port of San Fernando, La Union by Commissioner Antonio Bernardo.9
On January 28, 2004, the Department of Finance, through Atty. Leon L. Acuña (Atty. Acuña) and Troy Francis C.
Pizarro (Pizarro), filed a Complaint-Affidavit10 against Iglesias before the Office of the Ombudsman.11 Atty. Acuña
and Pizarro claimed that Iglesias failed to file her Statements of Assets, Liabilities, and Net Worth (SALNs) prior to
the year 2000.12
They also alleged that Iglesias made false entries in her 2000, 2001, and 2002 SALNs with respect to two (2)
real properties in Quezon City and Pangasinan. The Quezon City property's tax declarations revealed that Iglesias
1aшphi1
Iglesias countered that she did not falsify the mode of acquisition of the Pangasinan and Quezon City properties
in her SALNs.28 Iglesias and her sister, Rosario de Joya-Ablang (Rosario), inherited the Quezon City property from
their parents.29 She "merely bought out her sister's share of their joint inherited property[.]"30 Regarding the
Pangasinan property, Iglesias reasoned that she acquired the property through purchase and donation when her
mother, Marina, sold it to her for an amount well below its true value.31
Iglesias explained that she did not declare the three (3) Pangasinan properties because these were classified as
public lands and the Department of Environment and Natural Resources had yet to award the properties to her. She
contended that she was merely considered an applicant for the grant of the public lands.32
On the alleged illegally acquired properties, Iglesias disclosed that she acquired these properties either by

purchased the property on August 1, 1996 from the spouses Rosario and Elpidio Ablang. Likewise, the Pangasinan
property's Transfer Certificate of Title was issued by virtue of a deed of sale showing that she purchased a portion of
this property from Marina Lopez de Joya (Marina). However, in her SALNs, Iglesias indicated that these properties
were acquired through inheritance.13
Atty. Acuña and Pizarro also discovered three (3) real properties in Pangasinan under Iglesias' name that were
not declared in her SALNs.14 They further asserted that Iglesias acquired several real and personal properties from
1999 to 2002 amounting to P15,230,000.00, which was disproportionate to her lawful source of income. They
contended that the following properties were unlawfully acquired:15
purchase or inheritance. She obtained a loan of P9,000,000.00 from Philippine National Bank to buy out Rosario's
share and to purchase the Novaliches and Baguio properties. She also sold a property in Baguio to purchase the
Parañaque property. To pay her obligations, she leased her Quezon City property from July 15, 2000 to January
2004. She acquired another loan of P2,000,000.00 from Philippine National Bank-Dagupan Branch to start her
trucking business.33
Iglesias asserted that the foreclosure of the Quezon City property for non-payment of her loan "belies the false
accusation . . . that [she] is a corrupt government official[.]"34

Iglesias argued that her educational attainment was correctly stated in her resume. She initially took up a
Kind of Property Year Purchased Acquisition Cost master's degree in Customs Administration but was not able to finish the degree and eventually shifted to
Management.35 Lastly, the false date on her Personal Data Sheet was a typographical error.36
Parañaque Residential Property 1999 [P]3 Million

Novaliches Residential Property 1997 [P]3.5 Million

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She claimed that the allegations against her were false and baseless and that Atty. Acuña and Pizarro should be
held "criminally liable for malicious prosecution" and "for making untruthful statements under oath in their Complaint-
Affidavit."37
Iglesias filed a Motion for Extension of Time to File Counter­Affidavit in the criminal case. However, she was still
unable to file her counter-affidavit.38
On April 15, 2004, the Office of the Deputy Ombudsman for Luzon issued an Order39 in connection with the
administrative case, preventively suspending Iglesias for six (6) months while the investigation was on­going.40
On August 27, 2004, the Office of the Deputy Ombudsman for Luzon issued an Order requiring the parties to
present their arguments in their respective position papers. Iglesias submitted her position paper on September 20,
2004 reiterating her arguments. The Department of Finance submitted its position paper on October 5, 2004 and
disclosed new information regarding the business interest of Iglesias in Golden Grove Realty and Development
Corporation. Its position paper also included records of cases filed against lglesias.41
On October 12, 2004, Graft Investigation and Prosecution Officer I Robert C. Reñido (Prosecution Officer
Reñido) of the Office of the Deputy Ombudsman for Luzon issued a Joint Resolution42 resolving the administrative
and criminal cases. Prosecution Officer Reñido considered Iglesias' Counter-Affidavit in the administrative cae as
her counter-affidavit in the criminal case "[f]or purposes of exigency and in the interest of justice and due process."43
Prosecution Officer Reñido found that Atty. Acuña and Pizarro did not conduct an intensive investigation before
they filed the complaint against Iglesias,44 who was able to submit authentic copies of her filed SALNs from 1989 to
1999.45
He gave merit to Iglesias' explanation that the Quezon City and Pangasinan properties were part of her
inheritance from her parents Since Iglesias inherited a great portion of the Quezon City property from her parent,
she did not err in declaring the property as acquired through inheritance.46 Meanwhile, the Pangasinan property was
intended to be donated to Iglesias by her mother. They relied on the credibility of the lawyer who made a deed of
sale instead of a deed of donation to facilitate the transaction.47
Prosecution Officer Reñido held that Iglesias was correct in not declaring the three (3) Pangasinan properties in
her SALNs, as she had not yet acquired them,48 On thalleged illegally acquired properties, he stated that Iglesias
"was able to shed light on how she was able to lawfully acquire [these] assets."49
On the allegation that Iglesias falsified her educational attainment, Prosecution Officer Reñido ruled that Iglesias
had sufficiently proven that she shifted to Management upon learning that the Civil Service Commission did not
require a specific genre of a master's degree.50 He also found that the alleged falsification of Iglesias' Personal Data
Sheet was a mere typographical error.51
Prosecution Officer Reñido recommended the dismissal of both cases.52 Likewise, he recommended that the
preventive suspension be lifted upon the Joint Resolution's approval.53
Director Emilio A. Gonzalez III of the Office of the Deputy Ombudsman for Luzon approved the Joint Resolution.
However, Deputy Ombudsman for Luzon Victor C. Fernandez recommended its disapproval.54
On February 7, 2005, the Office of the Ombudsman issued a Resolution55 reviewing the October 12, 2004 Joint
Resolution. Ombudsman Simeon V. Marcelo (Ombudsman Marcelo) held that Iglesias failed to justify the substantial
increase in her net worth. In just one (1) year, her net worth as declared in her SALN increased from P245,000.00 in
1989 to P1,685,000.00 in 1990.56
Ombudsman Marcelo discovered that Iglesias' cash declaration escalated from P250,000.00 in her 1991 SALN
to P1,770,000.00 in her 1992 SALN. She also acquired the Baguio, Parañaque, and Novaliches properties from
1994 to 2000.57
In examining Iglesias' SALNs, Ombudsman Marcelo found that she obtained housing loans of P14,000,000.00
in 1994, P26,000,000.00 in 1998, and P29,000,000.00 in 1999.58 Since the housing loans were not supported by
evidence, Ombudsman Marcelo considered them "spurious or non-existent, meant only to cover up the rapidly
increasing assets of [Iglesias]."59
According to Ombudsman Marcelo, Iglesias also falsified her Personal Data Sheet "when she denied having
any criminal charges ever filed against her . . . despite evidence to the contrary."60 Iglesias had two (2) pending
estafa cases and three (3) dismissed cases before the lower courts, as stated in the National Bureau of
Investigation's May 22, 2001 Certification.61 She likewise committed falsification when she did not declare the true
value of the Pampanga property and reported its worth at only P50,000.00.62
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As for Iglesias' allegation of leasing her Quezon City property and starting a trucking business, Ombudsman
Marcelo stated that there was np evidence presented to support her claims. She also failed to declare the alleged
trucking business in her SALN.63
Ombudsman Marcelo held that the acts of Iglesias constitute dishonesty and grave misconduct, punishable by
dismissal from service under Rule IV, Section 52(A) of the Uniform Rules on Administrative Cases in the Civil
Service, in relation to Book V, Sections 9 and 22 of the Administrative Code of 1987.64
The dispositive portion of the Resolution read:
WHEREFORE, the 12 October 2004 Joint Resolution is DISAPPROVED. Respondent ALBERTA
DE JOYA-IGLESIAS is hereby found guilty of the administrative offense of DISHONESTY and GRAVE
MISCONDUCT. Thus, she is ordered DISMISSED from the service, with cancellation of eligibility,
forfeiture of leave credits and retirement benefits, and disqualification for reemployment in the
government service.
Moreover, sufficient probable cause exists to hold respondent ALBERTA DE JOYA IGLESIAS liable
for violation of Art. 171 (Falsification) and Art. 183 (Perjury) of the Revised Penal Code. Let the
Informations charging her with the said offenses be forthwith filed against her before the appropriate
court.
Additionally, let a Petition for Forfeiture of Unlawfully Acquired Properties be filed before the proper
court against respondent in view of the herein found accumulation of unexplained wealth.
The Field Investigation Office (FIO) is hereby ordered to investigate the matter regarding the false
valuation made on the Deed of Sale covering the Pampanga property transferred in favor of
respondent and secure the necessary documentary evidence for the purpose of filing a criminal
complaint for Falsification against her.
SO ORDERED.65 (Emphasis in the original)
Iglesias moved for reconsideration,66 which was denied by the Office of the Deputy Ombudsman for Luzon in its
February 21, 2005 Joint Order.67
Iglesias appealed the February 7, 2005 Resolution of the Office of the Ombudsman and the February 21, 2005
Joint Order of the Office of the Deputy Ombudsman for Luzon before the Court of Appeals.68
Iglesias argued that she was denied administrative due process. She claimed that there was failure to meet the
substantial evidence requirement in administrative proceedings.69 Further, she asserted that her defense of denial
and the presence of mitigating circumstances should have been considered by the Office of the Ombudsman and
the Office of the Deputy Ombudsman for Luzon.70
In its December 22, 2006 Decision,71 the Court of Appeals affirmed the assailed February 7, 2005 Resolution
and February 21, 2005 Joint Order.72 It held that there was no denial of due process since Iglesias was able to
explain her side in her Counter-Affidavit and her Motion for Reconsideration of the February 7, 2005 Resolution.73
The Court of Appeals declared that the assailed Resolution and Joint Order rest on substantial evidence; hence,
the Office of the Ombudsman and the Office of the Deputy Ombudsman for Luzon did not commit any grave abuse
of discretion.74 It added that Iglesias' defense of denial and the alleged mitigating circumstances were bereft of
merit.75
Iglesias moved for reconsideration, which was denied76 by the Court of Appeals in its November 21, 2007
Resolution.77
Hence, on January 17, 2008, Iglesias filed this Petition for Review78 with an application for temporary restraining
order against the Office of the Ombudsman and the Department of Finance officers, namely, Commissioner George
M. Jereos (Commissioner Jereos), Deputy Commissioner Roberto G. Geotina (Deputy Commissioner Geotina),
Acting Collector Juan T. Tan (Tan), Acting Disbursement Officer Kristine Morales (Morales), and Commissioner
Alberto Lina (Commissioner Lina) (collectively, respondents).
Petitioner alleges that respondent Tan took her place as Acting District Collector during her preventive
suspension. However, after the termination of her six (6)-month suspension, she was not automatically reinstated to
her position and respondent Tan was confirmed as Acting District Collector. Petitioner claims that she was demoted
as Deputy Collector for Operations without due process.79
Petitioner asserts that respondents Commissioner Jereos and Deputy Commissioner Geotina immediately
implemented the dismissal order while her motion for reconsideration of the February 7, 2005 Resolution was still
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pending before the Office of the Deputy Ombudsman for Luzon. Thus, respondent Morales immediately withheld her
salary and other benefits.80 Respondent Commissioner Lina was included as a nominal party-respondent.81
Petitioner prays that the December 22, 2006 Decision and November 21, 2007 Resolution of the Court of
Appeals be nullified and set aside. Petitioner likewise prays that judgment be rendered absolving her of any criminal
and administrative liability and reinstating her to her former position as Acting District Collector at the Port of San
Fernando.82
Petitioner raises the following issues:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION FOR CERTIORARI
II.
WHETHER OR NOT THE PETITIONER WAS DENIED DUE PROCESS OF LAW
III.
WHETHER PETITIONER WAS DENIED OF HER RIGHT TO BE INFORMED OF THE CHARGES
AGAINST HER83
Petitioner argues that she was not given an opportunity to refute the new accusations and charges against her
which were not stated in the Complaint-Affidavit. Her filing of a Motion for Reconsideration did "not address the fact
that she was never informed of the true allegations against her."84 Thus, she claims that "her right to be informed of
the accusations against her and to be afforded with due process of law has been violated."85
On April 25, 2000, respondents officers of the Department of Finance, through the Office of the Solicitor
General, filed their Comment86 and prayed for the denial of the Petition.87 They assert that petitioner was properly
informed of the charges against her.88 Moreover, her right to due process was not violated since she was given
enough opportunity to counter the allegations:
In this case, petitioner was able to file her Counter-Affidavit dated April 6, 2004 in OMB-L-A-04-
0057-B. She was likewise given the opportunity to file her counter-affidavit in OMB-L-C-04-0083-B
but she failed to do so despite her having filed a Motion for Extension of Time to File Counter-
Affidavit dated March 19, 2004. Based on the Comment dated September 21, 2005 of the Office of
the Ombudsman, the petitioner even filed a Motion for Early Resolution and Lifting of Preventive
Suspension, and a Position Paper. Moreover, she likewise filed her Motion for Reconsideration
dated February 14, 2005.
Clearly, petitioner was given opportunity to explain her side and she moved for reconsideration of the challenged
Resolution dated February 7, 2005. She was never denied her right to due process.89 (Emphasis in the original)
On May 5, 2008, respondent Office of the Ombudsman filed its Comment90 and likewise prayed for the denial of
the Petition. It argues that the Court of Appeals was correct in ruling "that petitioner was afforded due process by the
Office of the Ombudsman and [that] the questioned resolutions were supported by substantial evidence and based
on the records and evidence at hand."91
The Office of the Ombudsman counters that petitioner was not denied due process since "petitioner had the
opportunity to present her side, submit countervailing evidence to refute the Department of Finance's claims and
even move for a reconsideration of the decision."92 Further, it asserts that "petitioner was sufficiently informed of the
charges against her as shown in her Counter-Affidavit, Motion for Early Resolution and Lifting of Preventive
Suspension, Position Paper and the assailed Resolutions of the Office of the Ombudsman."93
On May 14, 2008, petitioner filed her Reply and reiterated that she was denied due process since she was not
informed of the offenses charged against her.94
On July 8, 2009, this Court issued a Resolution95 requiring the parties to submit their respective memoranda.
Petitioner filed her Memorandum96 on September 18, 2009, while respondent Office of the Ombudsman filed its
Memorandum97 on October 1, 2009. Both parties reiterated their arguments in their earlier pleadings. Respondents
officers of the Department of Finance failed to file their memorandum. 1aшphi1
On September 30, 2010, petitioner also filed a Supplement to the Supplemental Memorandum.98
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On October 17, 2011, petitioner again filed a Supplemental Memorandum.99 She stated that Branch 45,
Metropolitan Trial Court of Pasay City issued a Joint Decision100 acquitting her of three (3) counts of perjury in
Criminal Case Nos. 05-1160, 05-1161, and 05-1162.101 The perjury cases alleged that petitioner made untruthful
statements in connection with three (3) real properties on her December 31, 2000 SALN.102 Petitioner contends that
since she was able to counter the anomalies in her statements, she "should only be held liable for simple neglect of
duty."103
On January 21, 2015, petitioner filed her last Supplemental Memorandum.104 Petitioner informed this Court that
the other falsification and perjury cases related to the present case were dismissed by the trial courts, particularly:
a. Criminal Case No. Q-05-137 (pending before the Regional Trial Court of Quezon City, Branch 77) -
dismissed on 30 January 2008;
b. Criminal Cases (sic) Nos. 05-1160 to 1162 (For Perjury, pending before the Metropolitan Trial Court
of Pasay City, Branch 45) - acquitting the accused on 21 June 2011[;]
c. Criminal Case Nos. (sic) 421447-62-CR (For Perjury, pending before the Metropolitan Trial Court of
Manila, Branch 1) - acquitting the accused on 30 April 2014[;]
d. Criminal Case No. 05-238700 (For Falsification of Public Document, pending before the Metropolitan
Trial Court of Manila, Branch 30) ­acquitting the accused on 23 July 2014[;] [and]
e. Criminal Case Nos. 40970 to 72 (For Perjury, pending before the Municipal Trial Court in Cities of
San Fernando City, La Union) - acquitting the accused on 17 October 2014.105
This Court resolves the main issue of whether or not petitioner was denied of administrative due process when
the Resolution dismissing her appeal was based on allegations that were not contained in the Complaint. Resolving
this main issue will pass on the issues of whether or not petitioner was denied of her right to be informed of the
charges against her and whether or not petitioner was denied of her right to due process. Since these issues are
interrelated, they will be addressed jointly.
Petitioner's contention has no merit.
Administrative due process demands that the party being charged is given an opportunity to be heard.106 Due
process is complied with "if the party who is properly notified of allegations against him or her is given an opportunity
to defend himself or herself against those allegations, and such defense was considered by the tribunal in arriving at
its own independent conclusions."107
In F/O Ledesma v. Court of Appeals:108
Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain
or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him constitute the minimum requirements of due process. The
essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain
one's side, or an opportunity to seek a reconsideration of the action or ruling complained of.109
An important component of due process is the right of the accused to be informed of the nature of the charges
against him or her.110 A proper appraisal of the accusations would give the accused an opportunity to adequately
prepare for his or her defense. Otherwise, substantial justice would be undermined.111
In this case, petitioner insists that the February 7, 2005 Resolution of the Office of the Ombudsman was based
on new accusations that were not included in the Complaint Affidavit filed by Atty. Acuña and Pizarro. She anchors
her argument on the findings of the Ombudsman:
"In her first year in the government service, respondent reported a net worth of P245,000.00 in her
1989 SALN, which swiftly grew to P1,685,000.00 during her second year (1990 SALN). The additional
P1,440,000.00 accumulated by respondent is a 60% jump from her 1989 net worth. During that same
period, respondent was able to purchase a property in Paco, Manila, in the amount of P800,000.00,
acquired additional jewelry worth P250,000.00, and maintained cash in the bank in the amount of
P400,000.00. This sudden upsurge in respondent's net worth, within the short period of one (1) year, is
unjustified considering that she had no other employment, business activity or financial interests from
which the acquisitions can be funded other than her employment in the Bureau of Customs.
"Respondent's 1991 and 1992 SALN likewise reflected the meteoric rise of her assets. From the
declared cash of P250,000.00 in 1991, the same soared high to the amount of P1,770,000.00 which
was not sufficiently justified or explained by her income from the government, or her reported total new
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loans of P610,000.00, consisting of jewelry loan in the amount of P110,000.00 and an agricultural loan
in the amount of P500,000.00.
"Apart from the properties in New Manila, Quezon City, and Pampanga which respondent justified
as to have been inherited by her from her parents, respondent is likewise the owner of several
properties located in Baguio City, Parañaque City, and Novaliches, Quezon City, which she acquired
beginning 1994 to 2000."112 (Emphasis in the original)
Considering the above, this Court finds that there was a violation of due process with respect to the other
charges which were not in the original complaint. This Court sternly reminds the Ombudsman that he cannot add
new findings which were not part of the original complaint. To do so would violate the right of the accused to due
process.
However, there were charges in the original complaint which should prosper. A reading of the Office of the
Ombudsman Resolution reveals that she was dismissed from service not solely on the irregularities found in her
1989 to 1999 SALNs but also because of anomalies found in her 2000 to 2002 SALNs, which she was informed of
and was given the opportunity to refute. Petitioner conveniently left out in her pleadings the following findings of the
Office of the Ombudsman:
It should be noted, however, that respondent has two (2) Baguio properties indicated in her 2000-
2002 SALNs. The first Baguio property was acquired in 1995, thus, its declaration in her 1996 SALN.
From 1996-1999, she had been maintaining that same property. However, as evidenced by her 2000
SALN, she acquired another property in Baguio. Presuming that, as claimed by respondent, the PNB
loan paid for the acquisition of the first Baguio property, with what funds did she acquire the second
Baguio property?
Moreover, on the same year, respondent also acquired the Para[ñ]aque property. Although
respondent claims that she sold one of the Baguio properties to buy the Para[ñ]aque property, she
continued to declare the Baguio properties as her own in her SALN for 2000-2002. This, therefore,
would belie any assertion of sale . . .
Incidentally, it should be noted that during the years 2000-2002, respondent was no longer
declaring any cash in bank as part of her assets. She did not declare the proceeds received from the
sale of the Baguio property to Mario Nicolas despite her admission that she was given the initial
payment of P1,100,000.00. Granted that she used P1,000,000.00 thereof to make the [down payment]
on the Para[ñ]aque property, this would still leave her with P100,000.00 cash in hand, not to forget the
balance of P1,100,000.00 still owing her, which should have been declared as part of her assets.
As for the monthly amortization for the Para[ñ]aque property that had to be paid to BPI, the claim
that the rentals on the New Manila property answered for it does not seem to hold water. First,
respondent claims that in view of the fact that she has defaulted on the payments on the PNB loan, the
PNB has since foreclosed the property. The inscription at the back of the title states that the property
was foreclosed in 1999. This, thus, precludes respondent from having the place rented. Second,
assuming that the said foreclosure is being contested and is now the subject of pending litigation, it is a
puzzle how the lease was effected and why it was made for a lengthy period of time. Third, respondent
did not specify how much the lease rental was and if it were sufficient to pay for the monthly mortgage
owing BPI, and, most importantly, respondent failed to present evidence to substantiate the claim of
lease by JIM-Mar Enterprises.
....
As for the trucks and vans, respondent justifies that the same were acquired by virtue of a loan
from PNB-Dagupan Branch in the amount of Two Million Pesos (P2,000,000.00). She claims that the
same loan was used to buy the dump trucks, van, and other equipment, and as operating capital for
her trucking business. Respondent, however, failed to present evidence regarding the said loan and the
security used to obtain it. She also did not present any evidence regarding the trucking business. Also,
she did not disclose this in her SALN as one of her business interests.
Further, respondent admitted to committing another act of falsification. In explaining the
classification of the Pampanga property as an inheritance/donation inter vivos, respondent admitted
that she misdeclared the true value of the said land as merely P50,000.00 in the Deed of Sale
conveying the said property in her favor. This scheme was obviously resorted to in order to evade the
payment of higher taxes.113 (Emph[lsis supplied)
Even if the findings in relation to petitioner's 1989 to 1999 SALNs were disregarded, petitioner would still be
liable for the discrepancies in her 2000 to 2002 SALNs. These discrepancies were stated in the Complaint Affidavit
and were given clarification by petitioner in her Counter-Affidavit and Position Paper. Moreover, she was able to
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move for reconsideration of the Office of the Ombudsman February 7, 2005 Resolution. These circumstances
preclude petitioner from claiming that she was denied her right to due process.
On a final note, this Court endeavors to strike a balance between the accountability of public officers as a result
of public office being a privilege, on the one hand, and their right to privacy as protected in the Bill of Rights, on the
other. Although this Court has held that the requirement of submitting a SALN does not violate the right to privacy of
public officers,114 it does not mean that they should completely shed this right. Therefore, minor or explainable errors
in the SALN, which cannot be related to an attempt to conceal illicit activities should not be punishable. This Court
may relax the rule on strictly complying with the SALN in cases where minor errors were committed since these may
simply be used to harass and obstruct public officers in the performance of their duties. However, the errors in this
case were so substantial and glaring that they should not escape prosecution.
WHEREFORE, the Decision dated December 22, 2006 and the Resolution dated November 21, 2007 of the
Court of Appeals in CA G.R. SP No. 89585 are AFFIRMED with MODIFICATION.
Petitioner Alberta de Joya Iglesias is GUILTY of DISHONESTY and GRAVE MISCONDUCT based on the
anomalies found in her 2000 to 2002 Statements of Assets, Liabilities, and Net Worth. Thus, she
is DISMISSED from service, which includes the accessory penalties of cancellation of eligibility, forfeiture of leave
credits and retirement benefits, and disqualification for re-employment in the government service.
Accordingly, the criminal case against petitioner Alberta de Joya Iglesias shall proceed on the basis of the
anomalies found in her 2000 to 2002 Statements of Assets, Liabilities, and Net Worth.
This is without prejudice to other administrative and criminal charges that may be filed against her.
SO ORDERED.
Velasco, Jr., (Chairperson), Bersamin, Martires, and Gesmundo, JJ., concur.
NOTICE OF JUDGMENT
November 29, 2017
Sirs / Mesdames:
Please take notice that on August 30, 2017 a Decision, copy attached hereto, was rendered by the Supreme
Court in the above-entitled case, the original of which was received by this Office on November 29, 2017 at 2:20
p.m.
Very truly yours,
(SGD)
WILFREDO V. LAPITAN
Division Clerk of Court
Footnotes
1
Rollo, pp. 9-22.
2
Id. at 188-206. The Decision wape1med by Associate Justice Aurora Santiago Lagman and concurred in by
Associate Justices Juan Q. Enriquez, Jr. and Regalado E. Maambong of the Special Fifteenth Division, Court
of Appeals, Manila.
3
Id. at 24-33. The Resolution was penned by Associate Justice Aurora Santiago-Lagman and concurred in by
Associate Justices Juan Q. Enriquez, Jr. and Normandie B. Pizarro of the Former Special Fifteenth Division,
Court of Appeals, Manila.
4
Id. at 19, Petition.
5
Id. at 100-113. The Resolution was penned by Ombudsman Simeon V. Marcelo.
6
Id. at 114-124. The Joint Order was penned by Graft Investigation and Prosecution Officer II Adoracion A.
Agbada, concurred in by Director Joaquin F. Salazar, and recommended for approval by Deputy Ombudsman
for Luzon Victor C. Fernandez. Ombudsman Simeon V. Marcelo approved the Joint Order.
7/13 https://lawphil.net/judjuris/juri2017/aug2017/gr_180745_2017.html 8/13
2/1/24, 8:05 PM G.R. No. 204757
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
EN BANC
March 17, 2015
G.R. No. 204757
ATTY. JANET D. NACION, Petitioner,
vs.
COMMISSION ON AUDIT, MA. GRACIA PULIDO-TAN, JUANITO ESPINO and HEIDI MENDOZA, Respondents.
RESOLUTION
REYES, J.:
This resolves the Petition for Certiorari1 filed by petitioner Atty. Janet D. Nacion (Nacion) to assail the Decision2
dated June 14, 2012 and Resolution3 dated November 5, 2012 of respondent Commission on Audit (COA), finding
her guilty of grave misconduct and violation of reasonable office rules and regulations.
From October 16, 2001 to September 15, 2003, Nacion was assigned by the COA to the Metropolitan Waterworks
Sewerage System (MWSS) as State Auditor V.4 On June 27, 2011, when Nacion was already holding the position of
Director IV of COA, National Government Sector, a formal charge5 against her was issued by COA Chairperson Ma.
Gracia M. Pulido Tan (Chairperson Tan) for acts found to be committed when she was still with the MWSS. The
pertinent portions of the charge read:
The Administrative Case Evaluation Report dated June 21, 2011 of the Fraud Audit and Investigation Office (FAIO),
Legal Services Sector (LSS) as well as the Investigation Report submitted by the Team from the FAIO disclosed the
following reprehensible actions:
1.Receiving benefits and/or bonuses from MWSS in the total amount of P73,542.00 from 1999-2003[;]
2.Availing of the MWSS Housing Project;
3.Availing of the Multi-Purpose Loan Program – Car Loan.
Based thereon and upon the recommendation of the Director, FAIO-LSS, this Office finds sufficient basis to
administratively charge you with Grave Misconduct and Violation of Reasonable Office Rules and Regulations which
are grounds for administrative action under the Civil Service Law, Rules and Regulations.
WHEREFORE, you are hereby formally charged with the aforementioned offenses and required to submit to the
Office of the General Counsel, LSS your answer in writing and under oath, within five (5) days from receipt hereof, x
x x.6
Attached to the formal charge, which was docketed as Administrative Case No. 2011-002, were investigation reports
based on MWSS journal vouchers, disbursement vouchers and claims control index. COA’s investigation of its
personnel assigned to MWSS was prompted by its receipt of a letter from then MWSS Administrator Diosdado Jose
M. Allado, who complained of unrecorded checks and irregularly issued disbursement vouchers that were traced to
refer to bonuses and other benefits of the COA MWSS personnel.7
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In her Affidavit/Answer to Formal Charge,8 Nacion admitted that she availed of the MWSS Housing Project and thus,
was awarded a 300-square-meter lot at the MWSS Employees Corporate Office Housing Project in Novaliches,
Quezon City. This was covered by an Individual Notice of Award9 dated April 8, 2003 issued by the MWSS
Corporate Office Multi-Purpose Cooperative Housing Project. The cost of the lot was 500.00 per sq m or a total of
150,000.00, exclusive of development cost and miscellaneous expenses. Nacion invoked an honest belief that she
could avail of the benefit given the absence of any prohibition thereon upon COA personnel. COA Resolution No.
2004-005, which prohibited COA employees from availing of all forms of loan, monetary benefits or any form of
credit assistance from agencies under their audit jurisdiction, was issued only on July 27, 2004.10
Nacion admitted that she also availed of the MWSS Multi-Purpose Loan Program – Car Loan, upon an honest belief
that she was not prohibited from doing so. She emphasized that her car purchase was not subsidized. She was
obligated to pay in full the principal amount of the loan, plus interest and incidental expenses like registration fees
and insurance premiums.11
Nacion, however, denied having received bonuses and benefits from MWSS. She argued that the MWSS claims
control index and journal vouchers upon which the charge was based were not conclusive proof of her receipt of the
benefits, absent payrolls showing her signature. In any case, as a sign of good faith, Nacion offered to, first, restitute
the full amount of 73,542.00 to save government time and expenses in hearing the case and put to rest the issues
that arose from it, and second, give up her right over the MWSS lot provided she would get back her investment on
the property.12
Ruling of the COA
On June 14, 2012, the COA rendered its Decision13 finding Nacion guilty of grave misconduct and violation of
reasonable rules and regulations. It cited Section 18 of Republic Act (R.A.) No. 6758, otherwise known as the
Compensation and Position Classification Act of 1989, which specifically prohibits COA personnel from receiving
salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local government unit,
government-owned and -controlled corporations and government financial institutions, except those compensation
paid directly by the COA out of its appropriations and contributions. The COA emphasized that even the availment of
all forms of loan was already prohibited prior to the issuance of COA Resolution No. 2004-005, being already
proscribed by Executive Order No. 29214 and the Code of Ethics for Government Auditors.15
Although grave misconduct is a grave offense that is punishable by the extreme penalty of dismissal from service,
Nacion was only meted out a penalty of one year suspension without pay, after the COA considered as mitigating
the following circumstances:
Director Nacion did not request for a formal investigation, hence, has saved this Commission from the
inconvenience and cost of such proceeding. She also admitted availing both the Housing Project and MPLP Car
1âwphi1
Loan. Her long years in service [are] also worth considering as she has spent her productive years in the public
service. x x x.16
In addition to the suspension, Nacion was ordered to refund the amount of 73,542.0017 and return the lot which she
acquired under the MWSS housing program. The dispositive portion of the COA decision then reads:
WHEREFORE, premises considered, this Commission finds Director Janet D. Nacion GUILTY of Grave Misconduct
and Violation of Reasonable Office Rules and Regulations proceeding from the same act of receiving unauthorized
allowances and other fringe benefits. Accordingly, she is meted the penalty of one (1) year suspension without pay
effective upon receipt of this Decision, immediate refund of the amount of P73,542.00, and return of the lot she
obtained under the MWSS Employees Housing Project, with a stern warning that repetition of the same or similar
infraction shall be dealt with more severely.
Let a copy of this Decision form part of the respondent’s personal (201) File in this Commission. The Chief
Executive Staff, Office of the Chairperson and the Assistant Commissioner, Administration Sector, shall enforce this
Decision and report compliance thereof to the Commission Proper.18
Unyielding, Nacion moved to reconsider, but her plea was denied by the COA in a Resolution dated November 5,
2012.19 Hence, this petition.
The Present Petition
The core issue for the Court’s resolution is: whether or not the COA committed grave abuse of discretion in finding
Nacion guilty of grave misconduct and violation of reasonable office rules and regulations.
To support her petition against the COA, Nacion invokes due process as she argues that the records during her
tenure with the MWSS should not have been included by the audit team in its investigations, as no office order
covering it was issued by the COA Chairman. Furthermore, the documentary evidence considered by the Fraud
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Audit and Investigation Office (FAIO) did not constitute substantial evidence to prove the commission of the offenses
with which she was charged.
Ruling of the Court
The petition is bereft of merit. At the outset, the Court reiterates:
The concept is well-entrenched: grave abuse of discretion exists when there is an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is
not based on law and evidence but on caprice, whim, and despotism. Not every error in the proceedings, or every
erroneous conclusion of law or fact, constitutes grave abuse of discretion. The abuse of discretion to be qualified as
"grave" must be so patent or gross as to constitute an evasion of a positive duty or a virtual refusal to perform the
duty or to act at all in contemplation of law.20 (Citations omitted)
Thus, the Court emphasized in Dycoco v. Court of Appeals21 that "[a]n act of a court or tribunal can only be
considered as with grave abuse of discretion when such act is done in a ‘capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction.’"22
Upon review, the Court holds that no such grave abuse of discretion may be attributed to the COA for the procedure
it observed, its factual findings and conclusions in Nacion’s case.
Due Process in Administrative Proceedings
In administrative proceedings, the essence of due process is the opportunity to explain one’s side or seek a
reconsideration of the action or ruling complained of, and to submit any evidence he may have in support of his
defense. The demands of due process are sufficiently met when the parties are given the opportunity to be heard
before judgment is rendered.23 Given this and the circumstances under which the rulings of the COA were issued,
the Court finds no violation of Nacion’s right to due process. As the Office of the Solicitor General correctly argued,
the constitution of a separate fact-finding team specifically for Nacion’s case was not necessary for the satisfaction
of such right.
It bears stressing that Nacion was formally charged by Chairperson Tan, following evidence that pointed to
irregularities committed while she was with the MWSS. Being the COA Chairperson who, under the law, could
initiate administrative proceedings motu proprio, no written complaint against Nacion from another person was
necessary. Section 2 of the COA Memorandum No. 76-48,24 which Nacion herself invokes, provides:
Sec. 2. How commenced. –
(1) Administrative proceedings may be commenced against a subordinate official or employee of the Commission by
the Chairman motu proprio, or upon sworn, written complaint of any other person. (Sec. 38 [a], PD 807).
x x x x (Emphasis ours)
The power of the COA to discipline its officials then could not be limited by the procedure being insisted upon by
Nacion. Neither is the authority of the Chairperson to commence the action through the issuance of the formal
charge restricted by the requirement of a prior written complaint. As may be gleaned from the cited provision, a
written complaint under oath is demanded only when the administrative case is commenced by a person other than
the COA Chairperson.
Contrary to Nacion’s claim, the COA also did not act beyond its jurisdiction when her case was considered by the
FAIO investigating team, notwithstanding the fact that the office order which commanded an inquiry upon MWSS
personnel merely referred to alleged unauthorized receipt of bonuses and benefits from the agency by Atty. Norberto
Cabibihan (Atty. Cabibihan) and his staff. Since Nacion’s stint in MWSS was before Atty. Cabibihan’s, she argued
that the team should not have looked into the records and circumstances during her term. In including benefits
received during her term, Nacion claimed that the investigating team acted beyond its jurisdiction and deprived her
of the right to due process.
The contention fails to persuade; a separate office order was not necessary for the audit team’s investigation of
Nacion’s case. It should be emphasized that prior to the issuance of the formal charge, the investigations conducted
by the team were merely fact-finding. The crucial point was the COA’s observance of the demands of due process
prior to its finding or decision that Nacion was administratively liable. The formation of a separate fact-finding team
that should look specifically into Nacion’s acts was not necessary to satisfy the requirement. The formal charge was
as yet to be issued by the COA Chairperson, and Nacion’s formal investigation commenced only after she had filed
her answer to the charge. It was undisputed that Nacion, despite a chance, did not request for such formal
investigation, a circumstance which the COA later considered as mitigating. In any case, she was still accorded
before the COA a reasonable opportunity to present her defenses, through her answer to the formal charge and
eventually, motion for reconsideration of the COA’s decision. 1âwphi1
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Substantial Evidence in Administrative Case
The Court also finds no grave abuse of discretion on the part of the COA in holding Nacion administratively liable for
the offenses with which she was charged.
In administrative cases, the quantum of evidence that is necessary to declare a person administratively liable is
mere substantial evidence.25 This is defined under Section 5, Rule 133 of the Rules of Court, to wit:
Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion. (Emphasis ours)
It is settled that the factual findings of administrative bodies are controlling when supported by such substantial
evidence.26 In resolving the present petition, the Court finds no compelling reason to deviate from this general rule.
Three separate acts were found to have been committed by Nacion, all sufficient to support the COA’s finding of
grave misconduct and violation of reasonable office rules and regulations.
Nacion’s receipt of the prohibited benefits and allowances were duly proved by documentary evidence. The
presentation of documents bearing Nacion’s signature to prove her receipt of the money was not indispensable.
Recipients of unauthorized sums would, after all, ordinarily evade traces of their receipt of such amounts. Resort to
other documents from which such fact could be deduced was then appropriate. In this case, the claims control
indices considered by the COA were supported by journal vouchers and entries, which constitute public records. No
evidence that could sufficiently challenge the correctness of the contents thereof and the COA’s conclusions
therefrom was presented by Nacion. On the contrary, the COA correctly elucidated that:
For the receipt of allowances and bonuses amounting to P73,542.00, which she denied receiving for lack of
conclusive proof, it must be emphasized that administrative offenses only require substantial, not conclusive,
evidence. The MWSS Claims Control Index is used to record payments made to each employee, supplier and other
agency internal and external creditors. Its preparation and maintenance are not discretionary upon the agency as
COA itself has established the use of it to serve as an effective tool for internal control. The various other recordings
that were gathered to support the entries in the index of payment established that allowances and benefits have
indeed been extended to Atty. Nacion. It was not a stroke of accident that her name appeared on these documents.
Auditors can certainly explain the appearance of specific names in the indices of payment and other documents
presented herein. x x x.27
Nacion’s availment of the housing and car programs was undisputed. She claimed though to have availed of these
benefits upon an honest belief that she was not prohibited from doing so. Her alleged good faith, nonetheless, could
not support exoneration. Even her claim that officials from other agencies availed of the same benefits from MWSS
could neither qualify as a valid defense nor be treated as a confirmation of good faith. A prohibited act could not be
justified by the mere fact that other government officers were doing it, especially since given Nacion’s office and
distinctive functions, the other officers might not be similarly situated and covered by similar prohibitions.28
Clearly, the acts of Nacion were prohibited under the law. Among those covering the matter is R.A. No. 6758,
specifically Section 18 thereof which provides:
Section 18. Additional Compensation of Commission on Audit Personnel and of Other Agencies. – In order to
preserve the independence and integrity of the Commission on Audit (COA), its officials and employees are
prohibited from receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity,
local government unit, and government-owned and controlled corporations, and government financial institution,
except those compensation paid directly by the COA out of its appropriations and contributions.
xxxx
An observance of the prohibition is mandatory given its purpose vis-à-vis the roles which COA personnel are
required to perform. Given their mandate to look after compliance with laws and standards in the handling of funds
by the government agencies where they are assigned to, COA personnel must prevent any act that may influence
them in the discharge of their duties. In the present case, the receipt of the subject benefits and allowances was
evidently in violation of the prohibition under the aforequoted Section 18. Nacion should have been wary of her
actions and the prohibitions pertinent to her functions, especially as they affected the expenditure of MWSS funds
which she was duty-bound to eventually examine.
The availment of the loans likewise merited administrative sanctions. Nacion herself cited in her pleadings before
the COA some past cases that involved COA officials, who were disciplined for availing of car plans in other offices.
Nacion was also covered by COA Resolution No. 86-50, also known as the Code of Ethics for Government Auditors,
which demanded from her a high degree of integrity and professionalism, the avoidance of conflict of interest, and
resistance to temptations that might be prejudicial to the discharge of her duties and to public interest. Otherwise,
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she would be placed in an odd situation requiring her review of transactions and expenditures from which she had
directly benefited from.

While she vehemently denied it, Nacion benefited from the subject car and housing programs. Her acquisition of the
1âwphi1

car might not be subsidized by MWSS, but the low three-tier interest rates ranging from 0-6%29 extended to her by
the agency was clearly to her advantage. She was also able to avail of MWSS’ housing program even when she
was not an employee of the agency. Nacion’s availment of the benefits of the car and housing programs led to the
same results that the prohibition on additional compensation sought to avoid, and defied the rationale for the laws
that sought to fortify COA independence. In Villareña v. The Commission on Audit,30 the Court emphasized:

The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of
government funds. To be able properly to perform their constitutional mandate, COA officials need to be insulated
from unwarranted influences, so that they can act with independence and integrity. x x x The removal of the
temptation and enticement the extra emoluments may provide is designed to be an effective way of vigorously and
aggressively enforcing the Constitutional provision mandating the COA to prevent or disallow irregular, unnecessary,
excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.

Stated otherwise, the COA personnel who have nothing to look forward to or expect from their assigned offices in
terms of extra benefits, would have no reason to accord special treatment to the latter by closing their eyes to
irregular or unlawful expenditures or use of funds or property, or conducting a perfunctory audit. The law realizes
that such extra benefits could diminish the personnel’s seriousness and dedication in the pursuit of their assigned
tasks, affect their impartiality and provide a continuing temptation to ingratiate themselves to the government entity,
local government unit, government-owned and controlled corporations and government financial institutions, as the
case may be. In the end, they would become ineffective auditors.31 (Citations omitted)

Anent her availment of the MWSS housing project, Nacion insists, as an additional defense, that the lot was
awarded to her by a private entity that was separate and distinct from MWSS, i.e., the MWSS Corporate Office
Multi-Purpose Cooperative Housing Project.32 It is clear, however, that taking into account the rationale for the
prohibition upon government auditors against receipt of additional benefits and personal gains, the MWSS
Employees Housing Project could not be wholly separated from the MWSS and its officers. If Nacion’s participation
in the housing project were to be allowed, then the influence and conflict of interest which the law aims to thwart
would hardly be prevented. When it denied Nacion’s motion to reconsider, the COA then correctly explained the
following, taking into account the existing structure of the cooperative vis-à-vis the MWSS:

It must be emphasized that the conceptualization of the MWSS Employees Housing Project, the utilization of the
MWSS real property as the site of the MWSS housing project, and the guidelines in the implementation of the
housing project were all approved by the MWSS Board of Trustees, as evidenced by the minutes of meetings and
resolutions issued by the same Board. It is therefore hard to escape the fact that MWSS officials govern the conduct
of official affairs of the cooperative. More so, officials of the cooperative are likewise officials of MWSS. Thus, the
cooperative's affairs being controlled by the MWSS, such arrangement makes the cooperative conduit or adjunct of
the MWSS. x x x.33

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

(On official leave)

MARIA LOURDES P.A. SERENO*
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

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 3aepublic of tbe ~bilippines
~upreme <!Court
~aguio <!itp

EN BANC

FERDINAND R. VILLANUEVA, G.R. No. 211833

Presiding Judge, MCTC,
Compostela-New Bataan, Present:
Compostela Valley Province,
Petitioner, SERENO, CJ.,*
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
- versus - VILLARAMA, JR., **
PEREZ,
MENDOZA,
REYES,
PERLAS-BERNABE ***
'
LEONEN, and
JARDELEZA, JJ. *

JUDICIAL AND BAR COUNCIL, Promulgated:

Respondent. April 7, 2015
x---------------------------------------------------------------------

DECISION

REYES, J.:

Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to

this Court via a Petition for Prohibition, Mandamus, and Certiorari, and
Declaratory Relief1 under Rules 65 and 63 of the Rules of Court,
respectively, with prayer for the issuance of a temporary restraining order

No part .
•• On Official Leave .
••• On Leave.
Rollo, pp. 3-19.

A
Decision 2 G.R. No. 211833

and/or writ of preliminary injunction, to assail the policy of the Judicial and
Bar Council (JBC), requiring five years of service as judges of first-level
courts before they can qualify as applicant to second-level courts, on the
ground that it is unconstitutional, and was issued with grave abuse of
discretion.

The Facts

The petitioner was appointed on September 18, 2012 as the Presiding

Judge of the Municipal Circuit Trial Court, Compostela-New Bataan,
Poblacion, Compostela Valley Province, Region XI, which is a first-level
court. On September 27, 2013, he applied for the vacant position of
Presiding Judge in the following Regional Trial Courts (RTCs): Branch 31,
Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad, Agusan
Del Sur.

In a letter2 dated December 18, 2013, JBC’s Office of Recruitment,

Selection and Nomination, informed the petitioner that he was not included
in the list of candidates for the said stations. On the same date, the petitioner
sent a letter, through electronic mail, seeking reconsideration of his
non-inclusion in the list of considered applicants and protesting the inclusion
of applicants who did not pass the prejudicature examination.

The petitioner was informed by the JBC Executive Officer, through a

3
letter dated February 3, 2014, that his protest and reconsideration was duly
noted by the JBC en banc. However, its decision not to include his name in
the list of applicants was upheld due to the JBC’s long-standing policy of
opening the chance for promotion to second-level courts to, among others,
incumbent judges who have served in their current position for at least five
years, and since the petitioner has been a judge only for more than a year, he
was excluded from the list. This caused the petitioner to take recourse to
this Court.

In his petition, he argued that: (1) the Constitution already prescribed

the qualifications of an RTC judge, and the JBC could add no more; (2) the
JBC’s five-year requirement violates the equal protection and due process
clauses of the Constitution; and (3) the JBC’s five-year requirement violates
the constitutional provision on Social Justice and Human Rights for Equal
Opportunity of Employment. The petitioner also asserted that the
requirement of the Prejudicature Program mandated by Section 104 of

2
Id. at 70.
3
Id. at 6.
4
Section 10. As soon as PHILJA shall have been fully organized with the composition of its Corps
of Professorial Lecturers and other personnel, only participants who have completed the programs
prescribed by the Academy and have satisfactorily complied with all the requirements incident thereto may
be appointed or promoted to any position or vacancy in the Judiciary.
Decision 3 G.R. No. 211833

Republic Act (R.A.) No. 85575 should not be merely directory and should be
fully implemented. He further alleged that he has all the qualifications for
the position prescribed by the Constitution and by Congress, since he has
already complied with the requirement of 10 years of practice of law.

In compliance with the Court’s Resolution6 dated April 22, 2014, the
JBC7 and the Office of the Solicitor General (OSG)8 separately submitted
their Comments. Summing up the arguments of the JBC and the OSG, they
essentially stated that the petition is procedurally infirm and that the assailed
policy does not violate the equal protection and due process clauses. They
posited that: (1) the writ of certiorari and prohibition cannot issue to prevent
the JBC from performing its principal function under the Constitution to
recommend appointees to the Judiciary because the JBC is not a tribunal
exercising judicial or quasi-judicial function; (2) the remedy of mandamus
and declaratory relief will not lie because the petitioner has no clear legal
right that needs to be protected; (3) the equal protection clause is not
violated because the classification of lower court judges who have served at
least five years and those who have served less than five years is valid as it
is performance and experience based; and (4) there is no violation of due
process as the policy is merely internal in nature.

The Issue

The crux of this petition is whether or not the policy of JBC requiring
five years of service as judges of first-level courts before they can qualify as
applicant to second-level courts is constitutional.

Ruling of the Court

Procedural Issues:

Before resolving the substantive issues, the Court considers it

necessary to first determine whether or not the action for certiorari,
prohibition and mandamus, and declaratory relief commenced by the
petitioner was proper.

One. The remedies of certiorari and prohibition are tenable. “The

present Rules of Court uses two special civil actions for determining and
correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. These are the special civil actions for certiorari and

5
AN ACT ESTABLISHING THE PHILIPPINE JUDICIAL ACADEMY, DEFINING ITS
POWERS AND FUNCTIONS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER
PURPOSES
6
Rollo, p. 28.
7
Id. at 40-60.
8
Id. at 68-95.
Decision 4 G.R. No. 211833

prohibition, and both are governed by Rule 65.”9 As discussed in the case of
Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C. Aquino III, etc.,
et al.,10 this Court explained that:

With respect to the Court, however, the remedies of certiorari and

prohibition are necessarily broader in scope and reach, and the writ of
certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the
second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate

remedies to raise constitutional issues and to review and/or prohibit or
nullify the acts of legislative and executive officials.11 (Citation omitted)

In this case, it is clear that the JBC does not fall within the scope of a
tribunal, board, or officer exercising judicial or quasi-judicial functions. In
the process of selecting and screening applicants, the JBC neither acted in
any judicial or quasi-judicial capacity nor assumed unto itself any
performance of judicial or quasi-judicial prerogative. However, since the
formulation of guidelines and criteria, including the policy that the petitioner
now assails, is necessary and incidental to the exercise of the JBC’s
constitutional mandate, a determination must be made on whether the JBC
has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing and enforcing the said policy.

Besides, the Court can appropriately take cognizance of this case by

virtue of the Court’s power of supervision over the JBC. Jurisprudence
provides that the power of supervision is the power of oversight, or the
authority to see that subordinate officers perform their duties. It ensures that
the laws and the rules governing the conduct of a government entity are
observed and complied with. Supervising officials see to it that rules are
followed, but they themselves do not lay down such rules, nor do they have
the discretion to modify or replace them. If the rules are not observed, they
may order the work done or redone, but only to conform to such rules. They
may not prescribe their own manner of execution of the act. They have no
discretion on this matter except to see to it that the rules are followed.12

9
Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C. Aquino III, etc., et al., G.R. No.
209287, July 1, 2014.
10
G.R. No. 209287, July 1, 2014.
11
Id.
12
Francis H. Jardeleza v. Chief Justice Maria Lourdes P. A. Sereno, the Judicial and Bar Council
and Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 213181, August 19, 2014.
Decision 5 G.R. No. 211833

Following this definition, the supervisory authority of the Court over

the JBC is to see to it that the JBC complies with its own rules and
procedures. Thus, when the policies of the JBC are being attacked, then the
Court, through its supervisory authority over the JBC, has the duty to inquire
about the matter and ensure that the JBC complies with its own rules.

Two. The remedy of mandamus cannot be availed of by the petitioner

in assailing JBC’s policy. The petitioner insisted that mandamus is proper
because his right was violated when he was not included in the list of
candidates for the RTC courts he applied for. He said that his non-inclusion
in the list of candidates for these stations has caused him direct injury.

It is essential to the issuance of a writ of mandamus that the applicant

should have a clear legal right to the thing demanded and it must be the
imperative duty of the respondent to perform the act required.13 The
petitioner bears the burden to show that there is such a clear legal right to the
performance of the act, and a corresponding compelling duty on the part of
the respondent to perform the act. The remedy of mandamus, as an
extraordinary writ, lies only to compel an officer to perform a ministerial
duty, not a discretionary one.14 Clearly, the use of discretion and the
performance of a ministerial act are mutually exclusive.

The writ of mandamus does not issue to control or review the exercise
of discretion or to compel a course of conduct, which, it quickly seems to us,
was what the petitioner would have the JBC do in his favor. The function
of the JBC to select and recommend nominees for vacant judicial positions
is discretionary, not ministerial. Moreso, the petitioner cannot claim any
legal right to be included in the list of nominees for judicial vacancies.
Possession of the constitutional and statutory qualifications for appointment
to the judiciary may not be used to legally demand that one’s name be
included in the list of candidates for a judicial vacancy. One’s inclusion in
the list of the candidates depends on the discretion of the JBC, thus:

The fact that an individual possesses the constitutional and

statutory qualifications for appointment to the Judiciary does not
create an entitlement or expectation that his or her name be included in
the list of candidates for a judicial vacancy. By submitting an
application or accepting a recommendation, one submits to the
authority of the JBC to subject the former to the search, screening, and
selection process, and to use its discretion in deciding whether or not
one should be included in the list. Indeed, assuming that if one has the
legal right to be included in the list of candidates simply because he or
she possesses the constitutional and statutory qualifications, then the
13
Star Special Watchman and Detective Agency, Inc., Celso A. Fernandez and Manuel V. Fernandez
v. Puerto Princesa City, Mayor Edward Hagedorn and City Council of Puerto Princesa City, G.R. No.
181792, April 21, 2014.
14
Special People, Inc. Foundation v. Canda, G.R. No. 160932, January 14, 2013, 688 SCRA 403,
424.
Decision 6 G.R. No. 211833

application process would then be reduced to a mere mechanical

function of the JBC; and the search, screening, and selection process
would not only be unnecessary, but also improper. However, this is
clearly not the constitutional intent. One’s inclusion in the list of
candidates is subject to the discretion of the JBC over the selection
of nominees for a particular judicial post. Such candidate’s
inclusion is not, therefore, a legally demandable right, but simply a
privilege the conferment of which is subject to the JBC’s sound
discretion.

Moreover, petitioner is essentially seeking a promotional

appointment, that is, a promotion from a first-level court to a second
level court. There is no law, however, that grants him the right to
a promotion to second-level courts.15 (Emphasis in the original)

Clearly, to be included as an applicant to second-level judge is not

properly compellable by mandamus inasmuch as it involves the exercise of
sound discretion by the JBC.

Three. The petition for declaratory relief is improper. “An action for
declaratory relief should be filed by a person interested under a deed, a will,
a contract or other written instrument, and whose rights are affected by a
statute, an executive order, a regulation or an ordinance. The relief sought
under this remedy includes the interpretation and determination of the
validity of the written instrument and the judicial declaration of the parties’
rights or duties thereunder.”16 “[T]he purpose of the action is to secure an
authoritative statement of the rights and obligations of the parties under a
statute, deed, contract, etc., for their guidance in its enforcement or
compliance and not to settle issues arising from its alleged breach.”17

In this case, the petition for declaratory relief did not involve an
unsound policy. Rather, the petition specifically sought a judicial
declaration that the petitioner has the right to be included in the list of
applicants although he failed to meet JBC’s five-year requirement policy.
Again, the Court reiterates that no person possesses a legal right under the
Constitution to be included in the list of nominees for vacant judicial
positions. The opportunity of appointment to judicial office is a mere
privilege, and not a judicially enforceable right that may be properly claimed
by any person. The inclusion in the list of candidates, which is one of the
incidents of such appointment, is not a right either. Thus, the petitioner
cannot claim any right that could have been affected by the assailed policy.

15
Rollo, pp. 57-58.
16
Malana, et al. v. Tappa, et al., 616 Phil. 177, 186 (2009).
17
Hon. Quisumbing, et al. v. Gov. Garcia, et al., 593 Phil. 655, 674 (2008).
Decision 7 G.R. No. 211833

Furthermore, the instant petition must necessarily fail because this

Court does not have original jurisdiction over a petition for declaratory relief
even if only questions of law are involved.18 The special civil action of
declaratory relief falls under the exclusive jurisdiction of the appropriate
RTC pursuant to Section 1919 of Batas Pambansa Blg. 129, as amended by
R.A. No. 7691.20

Therefore, by virtue of the Court’s supervisory duty over the JBC and
in the exercise of its expanded judicial power, the Court assumes jurisdiction
over the present petition. But in any event, even if the Court will set aside
procedural infirmities, the instant petition should still be dismissed.

Substantive Issues

As an offspring of the 1987 Constitution, the JBC is mandated to

recommend appointees to the judiciary and only those nominated by the JBC
in a list officially transmitted to the President may be appointed by the latter
as justice or judge in the judiciary. Thus, the JBC is burdened with a great
responsibility that is imbued with public interest as it determines the men
and women who will sit on the judicial bench. While the 1987 Constitution
has provided the qualifications of members of the judiciary, this does not
preclude the JBC from having its own set of rules and procedures and
providing policies to effectively ensure its mandate.

The functions of searching, screening, and selecting are necessary and

incidental to the JBC’s principal function of choosing and recommending
nominees for vacancies in the judiciary for appointment by the President.
However, the Constitution did not lay down in precise terms the process that
the JBC shall follow in determining applicants’ qualifications. In carrying
out its main function, the JBC has the authority to set the standards/criteria
in choosing its nominees for every vacancy in the judiciary, subject only to
the minimum qualifications required by the Constitution and law for every
position. The search for these long held qualities necessarily requires a
degree of flexibility in order to determine who is most fit among the

18
See Bankers Association of the Philippines v. Commission on Elections, G.R. No. 206794,
November 27, 2013, 710 SCRA 608, 618.
19
Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall exercise exclusive original
jurisdiction:
(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;
xxxx
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial
functions;
xxxx
20
AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS, AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR
THE PURPOSE BATAS PAMBANSA, BLG. 129, OTHERWISE KNOWN AS THE “JUDICIARY
REORGANIZATION ACT OF 1980”. Approved on March 25, 1994.
Decision 8 G.R. No. 211833

applicants. Thus, the JBC has sufficient but not unbridled license to act in
performing its duties.

JBC’s ultimate goal is to recommend nominees and not simply to fill

up judicial vacancies in order to promote an effective and efficient
administration of justice. Given this pragmatic situation, the JBC had to
establish a set of uniform criteria in order to ascertain whether an applicant
meets the minimum constitutional qualifications and possesses the qualities
expected of him and his office. Thus, the adoption of the five-year
requirement policy applied by JBC to the petitioner’s case is necessary and
incidental to the function conferred by the Constitution to the JBC.

Equal Protection

There is no question that JBC employs standards to have a rational

basis to screen applicants who cannot be all accommodated and appointed to
a vacancy in the judiciary, to determine who is best qualified among the
applicants, and not to discriminate against any particular individual or class.

The equal protection clause of the Constitution does not require the
universal application of the laws to all persons or things without distinction;
what it requires is simply equality among equals as determined according to
a valid classification. Hence, the Court has affirmed that if a law neither
burdens a fundamental right nor targets a suspect class, the classification
stands as long as it bears a rational relationship to some legitimate
government end.21

“The equal protection clause, therefore, does not preclude

classification of individuals who may be accorded different treatment under
the law as long as the classification is reasonable and not arbitrary.”22 “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.”23

That is the situation here. In issuing the assailed policy, the JBC
merely exercised its discretion in accordance with the constitutional
requirement and its rules that a member of the Judiciary must be of proven
competence, integrity, probity and independence.24 “To ensure the

21
Supra note 10.
22
National Power Corporation v. Pinatubo Commercial, 630 Phil. 599, 609 (2010).
23
Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 419.
24
CONSTITUTION, Article VIII, Section 7(3) states:
3. A Member of the Judiciary must be a person of proven competence, integrity, probity,
and independence.
Decision 9 G.R. No. 211833

fulfillment of these standards in every member of the Judiciary, the JBC has
been tasked to screen aspiring judges and justices, among others, making
certain that the nominees submitted to the President are all qualified and
suitably best for appointment. In this way, the appointing process itself is
shielded from the possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to the ineligible or
disqualified.”25

Consideration of experience by JBC as one factor in choosing

recommended appointees does not constitute a violation of the equal
protection clause. The JBC does not discriminate when it employs number
of years of service to screen and differentiate applicants from the
competition. The number of years of service provides a relevant basis to
determine proven competence which may be measured by experience,
among other factors. The difference in treatment between lower court
judges who have served at least five years and those who have served less
than five years, on the other hand, was rationalized by JBC as follows:

Formulating policies which streamline the selection process falls

squarely under the purview of the JBC. No other constitutional body is
bestowed with the mandate and competency to set criteria for applicants
that refer to the more general categories of probity, integrity and
independence.

The assailed criterion or consideration for promotion to a

second-level court, which is five years experience as judge of a first-level
court, is a direct adherence to the qualities prescribed by the Constitution.
Placing a premium on many years of judicial experience, the JBC is
merely applying one of the stringent constitutional standards requiring that
a member of the judiciary be of “proven competence.” In determining
competence, the JBC considers, among other qualifications, experience
and performance.

Based on the JBC’s collective judgment, those who have been

judges of first-level courts for five (5) years are better qualified for
promotion to second-level courts. It deems length of experience as a
judge as indicative of conversance with the law and court procedure. Five
years is considered as a sufficient span of time for one to acquire
professional skills for the next level court, declog the dockets, put in place
improved procedures and an efficient case management system, adjust to
the work environment, and gain extensive experience in the judicial
process.

A five-year stint in the Judiciary can also provide evidence of the

integrity, probity, and independence of judges seeking promotion. To
merit JBC’s nomination for their promotion, they must have had a “record
of, and reputation for, honesty, integrity, incorruptibility, irreproachable
conduct, and fidelity to sound moral and ethical standards.” Likewise,
their decisions must be reflective of the soundness of their judgment,
courage, rectitude, cold neutrality and strength of character.
25
Supra note 12.
Decision 10 G.R. No. 211833

Hence, for the purpose of determining whether judges are worthy

of promotion to the next level court, it would be premature or difficult to
assess their merit if they have had less than one year of service on the
bench.26 (Citations omitted and emphasis in the original)

At any rate, five years of service as a lower court judge is not the only
factor that determines the selection of candidates for RTC judge to be
appointed by the President. Persons with this qualification are neither
automatically selected nor do they automatically become nominees. The
applicants are chosen based on an array of factors and are evaluated based
on their individual merits. Thus, it cannot be said that the questioned policy
was arbitrary, capricious, or made without any basis.

Clearly, the classification created by the challenged policy satisfies

the rational basis test. The foregoing shows that substantial distinctions do
exist between lower court judges with five year experience and those with
less than five years of experience, like the petitioner, and the classification
enshrined in the assailed policy is reasonable and relevant to its legitimate
purpose. The Court, thus, rules that the questioned policy does not infringe
on the equal protection clause as it is based on reasonable classification
intended to gauge the proven competence of the applicants. Therefore, the
said policy is valid and constitutional.

Due Process

The petitioner averred that the assailed policy violates procedural due
process for lack of publication and non-submission to the University of the
Philippines Law Center Office of the National Administrative Register
(ONAR). The petitioner said that the assailed policy will affect all applying
judges, thus, the said policy should have been published.

Contrary to the petitioner’s contention, the assailed JBC policy need

not be filed in the ONAR because the publication requirement in the ONAR
is confined to issuances of administrative agencies under the Executive
branch of the government.27 Since the JBC is a body under the supervision
of the Supreme Court,28 it is not covered by the publication requirements of
the Administrative Code.

26
Rollo, pp. 48-49.
27
Administrative Code, Book VII (Administrative Procedure) provides:
Section 1. Scope. – This Book shall be applicable to all agencies as defined in the next succeeding
section, except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all
matters relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state
universities and colleges.
28
1987 CONSTITUTION, Article VIII, Judicial Department states:
Section 8. – A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court x x x.
Decision 11 G.R. No. 211833

Nevertheless, the assailed JBC policy requiring five years of service

as judges of first-level courts before they can qualify as applicants to
second-level courts should have been published. As a general rule,
publication is indispensable in order that all statutes, including
administrative rules that are intended to enforce or implement existing laws,
attain binding force and effect. There are, however, several exceptions to
the requirement of publication, such as interpretative regulations and those
merely internal in nature, which regulate only the personnel of the
administrative agency and not the public. Neither is publication required of
the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.29

Here, the assailed JBC policy does not fall within the administrative
rules and regulations exempted from the publication requirement. The
assailed policy involves a qualification standard by which the JBC shall
determine proven competence of an applicant. It is not an internal
regulation, because if it were, it would regulate and affect only the members
of the JBC and their staff. Notably, the selection process involves a call to
lawyers who meet the qualifications in the Constitution and are willing to
serve in the Judiciary to apply to these vacant positions. Thus, it is but a
natural consequence thereof that potential applicants be informed of the
requirements to the judicial positions, so that they would be able to prepare
for and comply with them.

The Court also noted the fact that in JBC-009, otherwise known as the
Rules of the Judicial and Bar Council, the JBC had put its criteria in writing
and listed the guidelines in determining competence, independence, integrity
and probity. Section 1, Paragraph 1 of Rule 9 expressly provides that
applicants for the Court of Appeals and the Sandiganbayan, should, as a
general rule, have at least five years of experience as an RTC judge, thus:

RULE 9 – SPECIAL GUIDELINES FOR NOMINATION TO A

VACANCY IN THE COURT OF APPEALS AND SANDIGANBAYAN

Section 1. Additional criteria for nomination to the Court of Appeals and

the Sandiganbayan. – In addition to the foregoing guidelines the Council
should consider the following in evaluating the merits of applicants for a
vacancy in the Court of Appeals and Sandiganbayan:

1. As a general rule, he must have at least five years of experience

as a judge of Regional Trial Court, except when he has in his favor
outstanding credentials, as evidenced by, inter alia, impressive scholastic
or educational record and performance in the Bar examinations, excellent
reputation for honesty, integrity, probity and independence of mind; at

29
Tañada v. Hon. Tuvera, 230 Phil. 528, 535 (1986).
Decision 12 G.R. No. 211833

least very satisfactory performance rating for three (3) years preceding the
filing of his application for nomination; and excellent potentials for
appellate judgeship.

x x x x (Emphasis ours)

The express declaration of these guidelines in JBC-009, which have

been duly published on the website of the JBC and in a newspaper of general
circulation suggests that the JBC is aware that these are not mere internal
rules, but are rules implementing the Constitution that should be published.
Thus, if the JBC were so-minded to add special guidelines for determining
competence of applicants for RTC judges, then it could and should have
amended its rules and published the same. This, the JBC did not do
as JBC-009 and its amendatory rule do not have special guidelines for
applicants to the RTC.

Moreover, jurisprudence has held that rules implementing a statute

should be published. Thus, by analogy, publication is also required for the
five-year requirement because it seeks to implement a constitutional
provision requiring proven competence from members of the judiciary.

Nonetheless, the JBC’s failure to publish the assailed policy has not
prejudiced the petitioner’s private interest. At the risk of being repetitive,
the petitioner has no legal right to be included in the list of nominees for
judicial vacancies since the possession of the constitutional and statutory
qualifications for appointment to the Judiciary may not be used to legally
demand that one’s name be included in the list of candidates for a judicial
vacancy. One’s inclusion in the shortlist is strictly within the discretion of
the JBC.30

As to the issue that the JBC failed or refused to implement the

completion of the prejudicature program as a requirement for appointment or
promotion in the judiciary under R.A. No. 8557, this ground of the petition,
being unsubstantiated, was unfounded. Clearly, it cannot be said that JBC
unlawfully neglects the performance of a duty enjoined by law.

Finally, the petitioner argued but failed to establish that the assailed
policy violates the constitutional provision under social justice and human
rights for equal opportunity of employment. The OSG explained:

30
Supra note 12.
Decision 13 G.R. No. 211833

[T]he questioned policy does not violate equality of employment

opportunities. The constitutional provision does not call for appointment
to the Judiciary of all who might, for any number of reasons, wish to
apply. As with all professions, it is regulated by the State. The office of a
judge is no ordinary office. It is imbued with public interest and is central
in the administration of justice x x x. Applicants who meet the
constitutional and legal qualifications must vie and withstand the
competition and rigorous screening and selection process. They must
submit themselves to the selection criteria, processes and discretion of
respondent JBC, which has the constitutional mandate of screening and
selecting candidates whose names will be in the list to be submitted to the
President. So long as a fair opportunity is available for all applicants who
are evaluated on the basis of their individual merits and abilities, the
questioned policy cannot be struck down as unconstitutional.31 (Citations
omitted)

From the foregoing, it is apparent that the petitioner has not

established a clear legal right to justify the issuance of a preliminary
injunction. The petitioner has merely filed an application with the JBC for
the position of RTC judge, and he has no clear legal right to be nominated
for that office nor to be selected and included in the list to be submitted to
the President which is subject to the discretion of the JBC. The JBC has the
power to determine who shall be recommended to the judicial post. To be
included in the list of applicants is a privilege as one can only be chosen
under existing criteria imposed by the JBC itself. As such, prospective
applicants, including the petitioner, cannot claim any demandable right to
take part in it if they fail to meet these criteria. Hence, in the absence of a
clear legal right, the issuance of an injunctive writ is not justified.

As the constitutional body granted with the power of searching for,

screening, and selecting applicants relative to recommending appointees to
the Judiciary, the JBC has the authority to determine how best to perform
such constitutional mandate. Pursuant to this authority, the JBC issues
various policies setting forth the guidelines to be observed in the evaluation
of applicants, and formulates rules and guidelines in order to ensure that the
rules are updated to respond to existing circumstances. Its discretion is freed
from legislative, executive or judicial intervention to ensure that the JBC is
shielded from any outside pressure and improper influence. Limiting
qualified applicants in this case to those judges with five years of experience
was an exercise of discretion by the JBC. The potential applicants, however,
should have been informed of the requirements to the judicial positions, so
that they could properly prepare for and comply with them. Hence, unless
there are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of JBC’s powers, and will respect the initiative
and independence inherent in the latter.

31
Rollo, pp. 86-87.
 Decision 14 G.R. No. 211833

WHEREFORE, premises considered, the petition is DISMISSED.

The Court, however, DIRECTS that the Judicial and Bar Council comply
with the publication requirement of ( 1) the assailed policy requiring five
years of experience as judges of first-level courts before they can qualify as
applicant to the Regional Trial Court, and (2) other special guidelines that .
the Judicial and Bar Council is or will be implementing.

SO ORDERED.

JENVENIDO L. REYES
Associate Justice

WE CONCUR:

(No Part)
MARIA LOURDES P.A. SERENO
Chief Justice

Q,C.} .,,,

ANTONIO T. CARPIO PRESBITE~J. VELASCO, JR.

Associate Justice As ciate Justice

R ~"""" ~ ~ . ~ . -5"~· . ~""' rtq {)i1 rn'w.

eJ.L~O~ARD~D~~ l@WotP.ru~
Associate Justice Associate Justice
Decision 15 G.R. No. 211833

(On official Leave)

MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

JOSEC

(On Leave)
ESTELA M. PERLAS-BERN ,,.
Associate Justice Associate Justice

(No Part)
FRANCIS H. JARDELEZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that

the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

Associate Justice
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KABATAAN PARTY-LIST, G.R. No. 221318

REPRESENTED BY
REPRESENTATIVE JAMES
MARK TERRY L. RIDON Present:
AND MARJOHARA S.
TUCAY; SARAH JANE I. SERENO, C.J,
ELAGO, PRESIDENT OF THE CARPIO,
NATIONAL UNION OF VELASCO, JR.,
STUDENTS OF THE LEONARDO-DE CASTRO,
PHILIPPINES; VENCER BRION,
MARI E. CRISOSTOMO, PERALTA,
CHAIRPERSON OF THE BERSAMIN,
ANAKBAYAN; MARC LINO J. DEL CASTILLO,
ABILA, NATIONAL VILLARAMA, JR.,
PRESIDENT OF THE PEREZ,
COLLEGE EDITORS GUILD MENDOZA,
OF THE PHILIPPINES; REYES,
EINSTEIN Z. RECEDES, PERLAS-BERNABE,
DEPUTY SECRETARY- LEONEN, and
GENERAL OF ANAKBAYAN; JARDELEZA, JJ
CHARISSE BERNADINE I.
BANEZ, CHAIRPERSON OF
THE LEAGUE OF FILIPINO
STUDENTS; ARLENE Promulgated:
CLARISSE Y. JULVE,
MEMBER OF ALYANSA NG December 16, 2015
MGA GRUPONG HALIGI NG
AGHAM AT TEKNOLOHIYA ~~~~-~
PARA SA MAMAMAYAN
(AGHAM); and SINING
MARIA ROSAL. MARFORI,
Petitioners,

- versus -

COMMISSION ON
ELECTIONS,
Respondent.

~
 ~
r
Decision 2 G.R. No. 221318

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

DECISION
'', ~ . "
'i :.

. PERLAS-BERNABE, J.:

Rights beget responsibilities; progress begets change.

Before the Court is a petition for certiorari and prohibition 1 filed by

herein petitioners Kabataan Party-List, represented by Representative James
Mark Terry L. Ridon and National President Marjohara S. Tucay; Sarah Jane
I. Elago, President of the National Union of Students of the Philippines;
V encer Mari E. Crisostomo and Einstein Z. Recedes, Chairperson and
Deputy Secretary-General of Anakbayan, respectively; Marc Lino J. Abila,
National President of the College Editors Guild of the Philippines; Charisse
Bernadine I. Bafiez, Chairperson of the League of Filipino Students; Arlene
Clarisse Y. Julve, member of Alyansa ng mga Grupong Haligi ng Agham at
Teknolohiya para sa Mamamayan (AGRAM); and Sining Maria Rosa L.
Marfori (petitioners) assailing the constitutionality of Republic Act No.
(RA) 10367, entitled "An Act Providing for Mandatory Biometrics Voter
Registration," 2 as well as respondent Commission on Elections'
(COMELEC) Resolution Nos. 9721, 3 9863, 4 and 10013, 5 all related thereto.

The Facts

On February 15, 2013, President Benigno S. Aquino III signed into

law RA 10367, which is a consolidation of House Bill No. 3469 and Senate
Bill No. 1030, passed by the House of Representatives and the Senate on
December 11, 2012 and December 12, 2012, 6 respectively. Essentially, RA
10367 mandates the COMELEC to implement a mandatory biometrics
registration system for new voters 7 in order to establish a clean, complete,
permanent, and updated list of voters through the adoption of biometric

With application for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining
Order. Rollo, pp. 3-34.
Approved on February 15, 2013.
Entitled "RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT 10367, OTHERWISE KNOWN AS 'AN
ACT PROVIDING FOR MANDATORY BIOMETRICS VOTER REGISTRATION,"' signed by then Chairman
Sixto S. Brillantes, Jr., and Commissioners Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S.
Lim, Maria Gracia Cielo M. Padaca, Al A. Parreno, and Luie Tito F. Guia on June 26, 2013. Rollo, pp.
45-49.
Entitled "IN THE MATTER OF 1) AMENDING SECTIONS 28 AND 38 OF RESOLUTION No. 9853, DATED
FEBRUARY 19, 2013 AND 2) GUIDELINES ON DEACTIVATION OF VOTERS REGISTRATION RECORDS,"
dated April I, 2014. Id. at 50-54.
Entitled "IN THE MATTER OF DEACTIVATING THE REGISTRATION RECORDS OF VOTERS WITHOUT
BIOMETRICS DATA IN THE VOTERS' REGISTRATION SYSTEM FOR FAILURE TO VALIDATE PURSUANT TO
REPUBLIC ACT No. 10367," signed by Chairman Juan Andres D. Bautista, and Commissioners
Christian Robert S. Lim, Al A. Parreno, Luie Tito F. Guia, Arthur D. Lim, Ma. Rowena Amelia V.
Guanzon, and SheriffM. Ahas. Id. at 55-58.
6
Id. at 13.
See Section lOofRA 10367.

~
Decision 3 G.R. No. 221318

technology. 8 RA 10367 was duly published on February 22, 2013, 9 and took
effect fifteen ( 15) days after. 10

RA 10367 likewise directs that "[r]egistered voters whose

biometrics have not been captured shall submit themselves for
11
validation." "Voters who fail to submit for validation on or before the
last day of filing of application for registration for purposes of the May 2016
[E]lections shall be deactivated x x x." 12 Nonetheless, voters may have
their records reactivated after the May 2016 Elections, provided that they
comply with the procedure found in Section 28 13 of RA 8189, 14 also known
as "The Voter's Registration Act of 1996." 15

On June 26, 2013, the COMELEC issued Resolution No. 9721 16

which serves as the implementing rules and regulations of RA 10367, thus,
prescribing the procedure for validation, 17 deactivation, 18 and reactivation of
voters' registration records (VRRs ). 19 Among others, the said Resolution
provides that: (a) "[t]he registration records of voters without biometrics
data who failed to submit for validation on or before the last day of
filing of applications for registration for the purpose of the May 9/2016
National and Local Elections shall be deactivated in the last [Election
Registration Board (ERB)] hearing to be conducted prior to said
elections"; 20 (b) "[t]he following registered voters shall have their
biometrics data validated: [(1)] Those who do not have BIOMETRICS
data appearing in the Voter['s] Registration System (YRS); and [(2)]
Those who have incomplete BIOMETRICS data appearing in the

See Section 1 of RA 10367.

9
RA 10367 was published in the February 22, 2013 issues of the Manila Bulletin and the Philippine
Star.
10
See Section 15 of RA 10367.
11
See Section 3 of RA 10367; emphasis supplied.
12
See Section 7 of RA 10367; emphases supplied.
13
Section 28. Reactivation of Registration. - Any voter whose registration has been deactivated
pursuant to the preceding Section may file with the Election Officer a sworn application for
reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation
no longer exist any time but not later than one hundred twenty (120) days before a regular elect,ion and
ninety (90) days before a special election. ·

The Election Officer shall submit said application to the Election Registration Board for
appropriate action.

In case the application is approved, the Election Officer shall retrieve the registration record from
the inactive file and include the same in the corresponding precinct book of voters. Local heads or
representatives of political parties shall be properly notified on approved applications.
14
Entitled "AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF
CONTINUING REGISTRATION, PRESCRIBING THE PROCEDURES THEREOF AND AUTHORIZING THE
APPROPRIATION OF FUNDS THEREFOR" (approved on June 11, 1996).
15
See Section 8 of RA 10367.
16
Rollo, pp. 45-49.
17
See Section 6 of Resolution No. 9721; id. at 47-48.
18
See Section 8 of Resolution No. 9721; id.
19
See Section 9 ofResolution No. 9721; id.
20
See Section 8 of Resolution No. 9721; id., emphasis supplied.

I
Decision 4 G.R. No. 221318

VRS"; 21 (c) "[d]eactivated voters shall not be allowed to vote"; 22 and

(d) "[d]eactivation x x x shall comply with the requirements on posting,
ERB hearing and service of individual notices to the deactivated
23
voters." Resolution No. 9721 further states that, as of the last day of
registration and validation for the 2013 Elections on October 31, 2012, a
total of 9,018,256 registered voters were without biometrics data. 24
Accordingly, all Election Officers (EOs) were directed to "conduct [an]
information campaign on the conduct of validation." 25

On July 1, 2013, the COMELEC, pursuant to the aforesaid

Resolution, commenced the mandatory biometric system of registration. To
make biometric registration convenient and accessible to the voting public,
aside from the COMELEC offices in every local government unit, it
likewise established satellite registration offices in barangays and malls'. 26

On April 1, 2014, the COMELEC issued Resolution No. 9863 27

which amended certain portions 28 of Resolution No. 9853 29 dated February
19, 2014, by stating that ERBs shall deactivate the VRRs of those who
"failed to submit for validation despite notice on or before October 31,
2015," and that the "[ d]eactivation for cases falling under this ground shall
be made during the November 16, 2015 Board hearing." 30

A month later, or in May 2014, the COMELEC launched the NoBio-

NoBoto public information campaign which ran concurrently with the
period of continuing registration. 31

On November 3, 2015, the COMELEC issued Resolution No.

32
10013 which provides for the "procedures in the deactivation of [VRRs]
who do not have biometrics data in the [VRS] after the October 31,~2015
deadline of registration and validation." 33 Among others, the said Resolution
directed the EOs to: (a) "[p]ost the lists of voters without biometrics data
in the bulletin boards of the City/Municipal hall, Office of the Election
Officer and in the barangay hall along with the notice of ERB hearing;" and

21
See Section 2 of Resolution No. 9721; id. at 45-46, emphases supplied.
22
See Section 8 of Resolution No. 9721; id. at 48, emphasis supplied.
23
See Section 8 of Resolution No. 9721; id., emphasis supplied.
24
See second Whereas clause of Resolution No. 9721; id. at 45.
25
See Section 12 of Resolution No. 9721; id. at 49, emphasis supplied.
26
See id. at 79.
27
Id. at 50-54.
28
Particularly amending Sections 28 and 38 ofCOMELEC Resolution No. 9853, see id. at 78.
29
Entitled "RULES AND REGULATIONS ON THE RESUMPTION OF THE SYSTEM OF CONTINUING
REGISTRATION OF VOTERS, VALIDATION AND UPDATING OF REGISTRATION RECORDS FOR THE MAY 9,
2016 SYNCHRONIZED NATIONAL, LOCAL AND ARMM REGIONAL ELECTIONS AND OTHER
REGISTRATION POLICIES," signed by then Chairman Sixto S. Brillantes, Jr., and Commissioners
Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim, Maria Gracia Cielo M. Padaca, Al A.
Parreno, and Luie Tito F. Guia.
30
See Item B (2a) (7) of Resolution No. 9863; rollo, p. 53.
31
See id. at 71.
32
Id. at 55-58.
33
See id. at 56.

{
 Decision 5 G.R. No. 221318

(b) "[s]end individual notices to the affected voters included in the

generated list of voters without biometrics data." 34 It also provides that
"[a]ny opposition/objection to the deactivation of records shall be filed not
later than November 9, 2015 in accordance with the period prescribed in
Section 4, 35 [Chapter I,] Resolution No. 9853." 36 During the ERB hearing,
which proceedings are summary in nature, 37 "the ERBs shall, based on the
list of voters without biometrics data, order the deactivation of registration
records on the ground of 'failure to validate. "'38 Thereafter, EOs were
required to "[ s]end individual notices to the deactivated voters within five
( 5) days from the last day of ERB hearing. " 39 Moreover, Resolution No.
10013 clarified that the "[ r]egistration records of voters with incomplete
biometrics data and those corrupted data (biometrics) in the database
shall not be deactivated and be allowed to vote in the May 9, 2016
Synchronized National, Local and [Autonomous Region on Muslim
Mindanao (ARMM)] Regional Elections."40

On November 25, 2015, herein petitioners filed the instant petition

with application for temporary restraining order (TRO) and/or writ of
preliminary mandatory injunction (WPI) assailing the constitutionality of the
biometrics validation requirement imposed under RA 10367, as well as
COMELEC Resolution Nos. 9721, 9863, and 10013, all related thereto.
They contend that: (a) biometrics validation rises to the level @f an
additional, substantial qualification where there is penalty of deactivation; 41
( b) biometrics deactivation is not the disqualification by law contemplated

34
See Items A (3) and (4) of Resolution No. 10013; id. at 57.
35
Section 4. Hearing and approval/disapproval of applications. - The applications shall be heard by
the Election Registration Board (Board) at the [Office of the Election Officer (OEO)], in accordance
with the following schedule:

Period to file Last day to post Last day to file Hearing and
applications Notice of Hearing opposition to Approval/
with Lists of applications Disapproval of
Annlicant aoolications
May 6 to June 30, July 7, 2014 July 14, 2014 July 21, 2014
2014
July 1 to September October 6, 2014 October 13, 2014 October 20, 2014
30,2014
October 1 to January 5, 2015 January 12, 2015 January 19, 2015
December 20, 2014
January 5 to March 31, April 6, 2015 April 13, 2015 April 20, 2015
2015
April I to June 30, July 6, 2015 July 13, 2015 July 20, 2015
2015
July I to September October 5, 20 I 5 October 12, 2015 October 19, 2015
30,2015
October I to 31, 2015 November 4, 20 I 5 November9, November 16, 2015
2015

If the last day to post notice, file oppositions and hearing for approval/disapproval falls on a
holiday or a non-working day, the same shall be done on the next working day.
36
See Item A (5) of Resolution No. 10013; id. at 57.
37
See Item B (3) of Resolution No. 10013; id.
38
See Item B (1) of Resolution No. 10013; id.
39
See Ite:n C (4) of Resolution No. 10013; id. at 58.
40
See Item A (2) of Resolution No. 10013; id. at 57.
41
See id. at 19-20.

~
 !
Decision 6 G.R. No. 221318

by the 1987 Constitution; 42 (c) biometrics validation gravely violates the

Constitution, considering that, applying the strict scrutiny test, it is not
poised with a compelling reason for state regulation and hence, an
unreasonable deprivation of the right to suffrage; 43 (d) voters to be
deactivated are not afforded due process; 44 and (e) poor experience with
biometrics should serve as warning against exacting adherence to the
system. 45 Albeit already subject of a prior petition46 filed before this Court,
petitioners also raise herein the argument that deactivation by November 16,
2015 would result in the premature termination of the registration period
47
contrary to Section 8 of RA 8189. 48 Ultimately, petitioners pray that this
Court declare RA 10367, as well as COMELEC Resolution Nos. 9721,
9863, and 10013, unconstitutional and that the COMELEC be commanded
to desist from deactivating registered voters without biometric information,
to reinstate voters who are compliant with the requisites of RA 8189 but
have already been delisted, and to extend the system of contihuing
registration and capture of biometric information of voters until January 8,
2016. 49

On December 1, 2015, the Court required the COMELEC to file its

comment to the petition. Meanwhile, it issued a TRO requiring the
COMELEC to desist from deactivating the registration records of voters
without biometric information, pending resolution of the case at hand. 50

On December 7, 2015, COMELEC Chairman Juan Andres D.

Bautista, through a letter51 addressed to the Court En Banc, urgently
appealed for the immediate lifting of the above-mentioned TRO, stating that
the COMELEC is set to finalize the Project of Precincts (POP) on December
15, 2015, and that the TRO issued in this case has the effect of including the
2.4 Million deactivated voters in the list of voters, which, in tum, would
require revisions to the POP and consequently, adversely affect the tim~lines
of all other interrelated preparatory activities to the prejudice of the
successful implementation of the Automated Election System (AES) for the
2016 Elections. 52

42
See id. at 20-21.
43
See id. at 22-24.
44
See id. at 26-28.
45
See id. at 28-31.
46
Filed by the same parties against the COMELEC on October 29, 2015 docketed as G.R. No. 220918;
rollo, p. 7.
47
Section 8. System of Continuing Registration of Voters. - The personal filing of application of
registration of voters shall be conducted daily in the office of the Election Officer during regular office
hours. No registration shall, however, be conducted during the period starting one hundred twenty
(120) days before a regular election and ninety (90) days before a special election.
48
Rollo, p. 12.
49
Id. at 33.
50
See TRO and Notice of Resolution dated December 1, 2015; id. at 70-A to 70-0.
51
Id. at 71-75.
52
See id. at 74-75.

;
 Decision 7 G.R. No. 221318

On December 11, 2015, the COMELEC, through the Office of the

Solicitor General, filed its comment53 to the instant petition. On even date,
petitioners filed a manifestation 54 asking the Court to continue the TRO
against the deactivation of voters without biometric information. 55

With no further pleadings required of the parties, the case was

submitted for resolution.

The Issue Before the Court

The core issue in this case is whether or not RA 10367, as well as

COMELEC Resolution Nos. 9721, 9863, and 10013, all related thereto, are
unconstitutional.

The Ruling of the Court

The petition is bereft of merit.

I.

At the outset, the Court passes upon the procedural objections raised
in this case. In particular, the COMELEC claims that petitioners: (a) failed
to implead the Congress, the Office of the President, and the ERB which it
purports are indispensable parties to the case; 56 ( b) did not have the legal
standing to institute the instant petition; 57 and (c) erroneously availed of
certiorari and prohibition as a mode of questioning the constitutionality of
RA 10367 and the assailed COMELEC Resolutions. 58

The submissions do not hold.

Recognizing that the petition is hinged on an important constitutional

issue pertaining to the right of suffrage, the Court views the matter as one of
transcendental public importance and of compelling significance.
Consequently, it deems it proper to brush aside the foregoing procedural
barriers and instead, resolve the case on its merits. As resonated in the case
of Pabillo v. COMELEC, 59 citing Capalla v. COMELEc6° and Guingona, Jr.
v. COMELEC: 61

53
See Consolidated Comment and Manifestation Ad Cautelam; id. at 77-101.
54
See id. at 102-109.
55
Id. at 108.
56
Id. at 81-83.
57
Id. at 83-84.
58
Id. at 84-85.
59
See G.R. Nos. 216098 and 216562, April 21, 2015.
60
G.R. Nos. 201112, 201121, 201127, and 201413, June 13, 2012, 673 SCRA I, 47-48.
61
634 Phil. 516, 529 (20 I 0).

j
Decision 8 G.R. No. 221318

There can be no doubt that the coming 10 May 2010

[in this case, the May 2016] elections is a matter of great
public concern. On election day, the country's registered
voters will come out to exercise the sacred right of
suffrage. Not only is it an exercise that ensures the
preservation of our democracy, the coming elections also
embodies our people's last ounce of hope for a better
future. It is the final opportunity, patiently awaited by our
people, for the peaceful transition of power to the next
chosen leaders of our country. If there is anything capable
of directly affecting the lives of ordinary Filipinos so as
to come within the ambit of a public concern, it is the
coming elections, [xx x.]

Thus, in view of the compelling significance and transcending

public importance of the issues raised by petitioners, the technicalities r
raised by respondents should not be allowed to stand in the way, if the
ends of justice would not be subserved by a rigid adherence to the rules of
procedure. (Emphasis and underscoring supplied)

Furthermore, the issue on whether or not the policy on biometrics

validation, as provided under RA 10367 and fleshed out in the assailed
COMELEC Resolutions, should be upheld is one that demands immediate
adjudication in view of the critical preparatory activities that are currently
being undertaken by the COMELEC with regard to the impending May 2016
Elections. Thus, it would best subserve the ends of justice to settle this
controversy not only in order to enlighten the citizenry, but also so as not to
stymy the operations of a co-constitutional body. As pronounced in Roque,
62
Jr. v. COMELEC:

[T]he bottom line is that the Court may except a particular case from the
operations of its rules when the demands of justice so require. Put a bit
differently, rules of procedure are merely tools designed to facilitate the r
attainment of justice. Accordingly, technicalities and procedural barriers
should not be allowed to stand in the way, if the ends of justice would not
be subserved by a rigid adherence to the rules of procedure. 63

That being said, the Court now proceeds to resolve the substantive
issues in this case.

II.

Essentially, the present petition is a constitutional challenge against

the biometrics validation requirement imposed under RA 10367, including
COMELEC Resolution Nos. 9721, 9863, and 10013. As non-compliance
with the same results in the penalty of deactivation, petitioners posit that it
has risen to the level of an unconstitutional substantive requirement in the
exercise of the right of suffrage. 64 They submit that the statutory requirement
62
615 Phil. 149 (2009).
63
Id. at 200.
64
Rollo, p. 19.

{
Decision 9 G.R. No. 221318

of biometric validation is no different from the unconstitutional requirement

of literacy and property because mere non-validation already absolutely
curtails the exercise of the right of suffrage through deactivation. 65 Further,
they advance the argument that deactivation is not the disqualification by
law contemplated as a valid limitation to the exercise of suffrage under the
1987 Constitution. 66 !

The contestation is untenable.

As early as the 1936 case of The People of the Philippine Islands v.

Corral, 67 it has been recognized that "[t]he right to vote is not a natural right
but is a right created by law. Suffrage is a privilege granted by the State
to such persons or classes as are most likely to exercise it for the public
good. In the early stages of the evolution of the representative system of
government, the exercise of the right of suffrage was limited to a small
portion of the inhabitants. But with the spread of democratic ideas, the
enjoyment of the franchise in the modem states has come to embrace the
mass of the audit classes of persons are excluded from the franchise." 68

Section 1, Article V of the 1987 Constitution delineates the current

parameters for the exercise of suffrage:

Section I. Suffrage may be exercised by all citizens of the Philippines

not otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months immediately preceding the election.
No literacy, property, or other substantive requirement shall be imposed on the
exercise of suffrage.

Dissecting the provision, one must meet the following qualifications

in order to exercise the right of suffrage: first, he must be a Filipino citizen;
second, he must not be disqualified by law; and third, he must have resided
in the Philippines for at least one ( 1) year and in the place wherein he
proposes to vote for at least six (6) months immediately preceding the
election.

The second item more prominently reflects the franchised nattlre of

the right of suffrage. The State may therefore regulate said right by imposing
statutory disqualifications, with the restriction, however, that the same do
not amount to, as per the second sentence of the provision, a "literacy,
property or other substantive requirement." Based on its genesis, it may be
gleaned that the limitation is geared towards the elimination of irrelevant
standards that are purely based on socio-economic considerations that have

65
Id. at 20.
66
Id. at 20-21.
67
62 Phil. 945, 948 (1936).
68
See id.

~
 Decision 10 G.R. No. 221318

no bearing on the right of a citizen to intelligently cast his vote and to further
the public good.

To contextualize, the first Philippine Election Law, Act No. 1582,

which took effect on January 15, 1907, mandated that only men who were at
least twenty-three (23) years old and "comprised within one of the following
three classes" were allowed to vote: (a) those who prior to the 13th of
August, 1898, held the office of municipal captain, governadorcillo, alcalde,
lieutenant, cabeza de barangay, or member of any ayuntamiento; (b) those
who own real property to the value of P500.00, or who annually pay P30.00
or more of the established taxes; and (c) those, who speak, read, and write
English or Spanish.

When the 1935 Constitution was adopted, the minimum voting age
was lowered to twenty-one (21) and the foregoing class qualification and
property requirements were removed. 69 However, the literacy requirement
was retained and only men who were able to read and write were given the
right to vote. 70 It also made women's right to vote dependent on a plebiscite
held for such purpose. 71

!
During the 1971 Constitutional Convention, the delegates decided to
remove the literacy and property requirements to broaden the political base
and discontinue the exclusion of millions of citizens from the political
systems: 72

Sponsorship Speech of Delegate Manglapus

DELEGATE MANGLAPUS: Mr. President, the draft proposal, the

subject matter of Report No. 11 contains amendments that are designed to
improve Article V on suffrage and to broaden the electoral base of our
country. The three main points that are taken up in this draft which will be
developed in the sponsorship speeches that will follow might need
explanatory remarks. x x x.

xx xx

(2) The present requirement, reading and writing, is

eliminated and instead a provision is introduced which
says, "No literacy, property, or other substantive

69
Section I. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified
by law, who are twenty-one years of age or over and are able to read and write, and who shall have
resided in the Philippines for one year and in the municipality wherein they propose to vote for at least
six months preceding the election. The National Assembly shall extend the right of suffrage to women,
if in a plebiscite which shall be held for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women possessing the necessary qualifications shall
vote affirmatively on the question. (Emphasis supplied)
70 Id.
71 Id.
72
Journal of the 1971 Constitutional Convention, Session No. 116, February 25, 1972, pp. 13-14.

r
Decision 11 G.R. No. 221318

requirement shall be imposed on the exercise of

suffrage;"

xx xx

The draft before us is in keeping with the trend towards the

broadening of the electoral base already begun with the lowering of
the voting age to 18, and it is in keeping further with the Committee's
desire to discontinue the alienation and exclusion of millions of
citizens from the political system and from participation in the
political life of the country. The requirement of literacy for voting is
eliminated for it is noted that there are very few countries left in the world
where literacy remains a condition for voting. There is no Southeast Asian
country that imposes this requirement. The United States Supreme Court
only a few months ago declared unconstitutional any state law that would
continue to impose this requirement for voting.

xx xx

It is to be noted that all those who testified before the Committee

favoured the elimination of the literacy requirement. It must be
stressed that those witnesses represented all levels of society x x x.

Sponsorship Speech of Delegate Ordonez

x x x in the process, as we evolve, many and more of our people

were left to the sidelines because they could no longer participate in the
process of government simply because their ability to read and write had
become inadequate. This, however, did not mean that they were no longer
responsive to the demands of the times, that they were unsensible to what
was happening among them. And so in the process as years went on,
conscious efforts were made to liberate, to free these persons who were
formerly entitled in the course of election by means of whittling away the
requirements for the exercise of the right to vote. First of all, was the
property requirement. There were times in the English constitutional
history that it was common to say as an answer to a question, "Who are
entitled to vote?" that the following cannot vote - - criminals, paupers,
members of the House of Lords. They were landed together at the same
figurative category.

Eventually, with the wisdom of the times, property requirement

was eliminated but the last remaining vestige which bound the members
of the community to ignorance, which was the persistence of this r
requirement of literacy remained. And this is again preserved in our
Constitution, in our Election Code, which provides that those who cannot
prepare their ballots themselves shall not be qualified to vote.

xx xx

Unless you remove this literacy test, the cultural minorities,

the underprivileged, the urban guerrillas will forever be outcasts of
our society, irresponsive of what is happening. And if this condition
were to continue, my friends, we cannot fully claim that we have
representative democracy. Let us reverse the cycle. Let us eliminate the
social imbalance by granting to these persons who are very responsible

I
Decision 12 G.R. No. 221318

the right to participate in the choice of the persons who are to make their
laws for them. (Emphases supplied)

As clarified on interpellation, the phrase "other substantive

requirement" carries the same tack as the other standards alienating
particular classes based on socio-economic considerations irrelevant to
suffrage, such as the payment of taxes. Moreover, as particularly noted and
as will be later elaborated on, the phrase did not contemplate any restriction
on procedural requirements, such as that of registration:

DELEGATE DE LOS REYES: On page 2, Line 3, the following appears:

"For other substantive requirement, no literacy[,]

property, or other substantive requirement shall be imposed
on the exercise of suffrage."

just what is contemplated in the phrase, "substantive

requirement?"

DELEGATE OCCENA: I can answer that, but it belongs to the sphere of !

someone else in the Committee. We use this term as distinguished from

procedural requirements. For instance, the law cannot come in and say
that those who should be allowed to vote should have paid certain
taxes. That would be a substantial requirement in addition to what is
provided for in the Constitution. But the law can step in as far as certain
procedural requirements are concerned like requiring registration,
and also step in as far as these classifications are concerned. 73
(Emphases supplied)

As it finally turned out, the imposition of literacy, property, or other

substantive requirement was proscribed and the following provision on
suffrage was adopted74 in the 1973 Constitution:

Section 1. Suffrage shall be exercised by citizens of the Philippines

not otherwise disqualified by law, who are eighteen years of age or over,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months preceding r
the election. No literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage. The Batasang Pambansa
shall provide a system for the purpose of securing the secrecy and sanctity
of the vote. (Emphasis supplied)

73
Journal ofthe 1971 Constitutional Convention, Session No. 116, February 25, 1972, p. 52.
74
After a voting of 40 in favor, 2 against, and 1 abstention, the Commission approved the exclusion of
literacy requirements from the limitations. (See Deliberations of the Constitutional Commission, dated
July 22, 1986, Vol. II, p.10 I.)

(
 Decision 13 G.R. No. 221318

After deliberating on and eventually, striking down a proposal to

exclude literacy requirements from the limitation, 75 the exact proyision
prohibiting the imposition of "literacy, property, or other substantive
requirement[s]" in the 1973 Constitution was fully adopted in the 1987
Constitution.

Along the contours of this limitation then, Congress, pursuant to

Section 118 of Batas Pambansa Bilang 881, or the Omnibus Election Code,
among others, imposed the following legal disqualifications:

Section 118. Disqualifications. - The following shall be

disqualified from voting:

(a) Any person who has been sentenced by final judgment to suffer
imprisonment for not less than one year, such disability not having
been removed by plenary pardon or granted amnesty: Provided,
however, That any person disqualified to vote under this paragraph
shall automatically reacquire the right to vote upon expiration of five
years after service of sentence.

(b) Any person who has been adjudged by final judgment by

competent court or tribunal of having committed any crime involving
disloyalty to the duly constituted government such as rebellion,
sedition, violation of the anti-subversion and firearms laws, or any
crime against national security, unless restored to his full civil and
political rights in accordance with law: Provided, That he shall regain
his right to vote automatically upon expiration of five years after
service of sentence.

(c) Insane or incompetent persons as declared by competent authority.

A "qualification" is loosely defined as "the possession of qualities,

properties (such as fitness or capacity) inherently or legally necessary to
make one eligible for a position or office, or to perform a public duty or
function." 76

75
The 1987 Constitution retained the proscription on the imposition of literacy, property, or other
substantive requirements, but during the deliberations, Commissioner Rama, proposed the restoration
of the literacy requirement on the argument that for a strong electoral system, what was needed was not
number, but intelligence of voters. He also pointed out that illiterates were manipulated by
unscrupulous politicians and that their participation in the elections is inherently flawed because they
cannot keep their votes secret as they need to be assisted in casting their votes. (See Deliberations of
the Constitutional Commission, dated July 19, 1986, Vol. II, pp.8-9.)

This proposition, however, was opposed by the majority, including Commissioner Bernas on the
reason that reading and writing were not the only vehicles to acquire information and that the right of
suffrage should not be held back from those who are unfortunate as to be unable to read and write. He
further stated that illiteracy shows government's neglect of education and disenfranchising the illiterate
would only aggravate the illiteracy because their voices will not be heard. (See Deliberations of the
Constitutional Commission, dated July 19, 1986, Vol. II, pp.15-16.)
76
Black's Law Dictionary, gth Ed., p. 1275.

~
 Decision 14 G.R. No. 221318

Properly speaking, the concept of a "qualification", at least insofar as

the discourse on suffrage is concerned, should be distinguished from the
concept of "registration", which is jurisprudentially regarded as only the
means by which a person's qualifications to vote is determined. In Yra v.
Abano, 77 citing Meffert v. Brown, 78 it was stated that "[t]he act of registering
is only one step towards voting, and it is not one of the elements that makes
the citizen a qualified voter [and] one may be a qualified voter without
exercising the right to vote." 79 In said case, this Court definitively
characterized registration as a form of regulation and not as a qualification
for the right of suffrage:

Registration regulates the exercise of the right of suffrage. It is not a

qualification for such right. 80 (Emphasis supplied)

As a form of regulation, compliance with the registration procedure is

dutifully enjoined. Section 115 of the Omnibus Election Code provides:

Section 115. Necessity of Registration - In order that a qualified

elector may vote in any election, plebiscite or referendum, he must be
registered in the permanent list of voters for the city or municipality in
which he resides. (Emphasis supplied)

Thus, although one is deemed to be a "qualified elector," he must

nonetheless still comply with the registration procedure in order to vote.

As the deliberations on the 1973 Constitution made clear, registration

is a mere procedural requirement which does not fall under the limitation
that "[n]o literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage." This was echoed in AKBAYAN-Youth
v. COMELEC81 (AKBAYAN-Youth), wherein the Court pronounced that the
process of registration is a procedural limitation on the right to vote. Albeit
procedural, the right of a citizen to vote nevertheless remains conditioned
upon it:

Needless to say, the exercise of the right of suffrage, as in the enjoyment

of all other rights, is subject to existing substantive and procedural
requirements embodied in our Constitution, statute books and other
repositories of law. Thus, as to the substantive aspect, Section 1, Article V r
of the Constitution provides:

xx xx

As to the procedural limitation, the right of a citizen to vote is

necessarily conditioned upon certain procedural requirements he
must undergo: among others, the process of registration. Specifically,

77
52 Phil. 380 (1928).
78
132 Ky. 201; 116 S.W. 779; 1909 Ky. LEXIS 133.
79
Yra v. Abano, supra note 77, at 384.
80
Id. at 385.
81
407 Phil. 618 (2001 ).

,J
Decision 15 G.R. No. 2r21318

a citizen in order to be qualified to exercise his right to vote, in addition to

the minimum requirements set by the fundamental charter, is obliged by
law to register, at present, under the provisions of Republic Act No. 8189,
otherwise known as the Voters Registration Act of 1996. 82 (Emphasis and
underscoring supplied)

RA 8189 primarily governs the process of registration. It defines

"registration" as "the act of accomplishing and filing of a sworn application
for registration by a qualified voter before the election officer of the city or
municipality wherein he resides and including the same in the book of
registered voters upon approval by the [ERB]." 83 As stated in Section 2
thereof, RA 8189 was passed in order "to systematize the present method of
registration in order to establish a clean, complete, permanent and updated
list of voters."

To complement RA 8189 in light of the advances in modem

technology, RA 10367, or the assailed Biometrics Law, was signed into law
in February 2013. It built on the policy considerations behind RA 8189 as it
institutionalized biometrics validation as part of the registration process:

Section 1. Declaration of Policy. - It is the policy of the State to

establish a clean, complete, permanent and updated list of voters through
the adoption of biometric technology.

"Biometrics refers to a quantitative analysis that provides a positive

identification of an individual such as voice, photograph, fingerprint,
signature, iris, and/or such other identifiable features." 84

Sections 3 and 10 of RA 10367 respectively require registered and

new voters to submit themselves for biometrics validation:

Section 3. Who Shall Submit for Validation. - Registered voters

whose biometrics have not been captured shall submit themselves for
validation.

Section 10. Mandatory Biometrics Registration. - The

Commission shall implement a mandatory biometrics registration system
for new voters.

Under Section 2 (d) of RA 10367, "validation" is defined as "the

process of taking the biometrics of registered voters whose biometrics have
not yet been captured."

82
Id. at 635-636.
83
Section 3 (a), RA 8189.
84
Section 2 (b), RA 10367.

I
Decision 16 G.R. No. 221318
!

The consequence of non-compliance is "deactivation," which "refers

to the removal of the registration record of the registered voter from the
corresponding precinct book of voters for failure to comply with the
validation process as required by [RA 10367]."85 Section 7 states:

Section 7. Deactivation. - Voters who fail to submit for

validation on or before the last day of filing of application for registration
for purposes of the May 2016 elections shall be deactivated pursuant to
this Act. (Emphases supplied)

Notably, the penalty of deactivation, as well as the requirement of

validation, neutrally applies to all voters. Thus, petitioners' argument that
the law creates artificial class of voters 86 is more imagined than real. There is
no favor accorded to an "obedient group." If anything, non-compliance by
the "disobedient" only rightfully results into prescribed consequences. r
Surely, this is beyond the intended mantle of the equal protection of the
laws, which only works "against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality." 87

It should also be pointed out that deactivation is not novel to RA

10367. RA 8189 already provides for certain grounds for deactivation, of
which not only the disqualifications under the Constitution or the Omnibus
Election are listed.

Section 27. Deactivation of Registration. The board shall

deactivate the registration and remove the registration records of the
following persons from the corresponding precinct book of voters and
place the same, properly marked and dated in indelible ink, in the inactive
file after entering the cause or causes of deactivation:

a) Any person who has been sentenced by final judgment to suffer

imprisonment for not less than one (1) year, such disability not having
been removed by plenary pardon or amnesty: Provided, however, That any r
person disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five (5) years after service of
sentence as certified by the clerks of courts of the Municipal/Municipal
Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan;

b) Any person who has been adjudged by final judgment by a competent

court or tribunal of having caused/committed any crime involving
disloyalty to the duly constituted government such as rebellion, sedition,
violation of the anti-subversion and firearms laws, or any crime against
national security, unless restored to his full civil and political rights in
accordance with law; Provided, That he shall regain his right to vote
automatically upon expiration of five (5) years after service of sentence;

c) Any person declared by competent authority to be insane or

incompetent unless such disqualification has been subsequently removed

85
Section 2 (e), RA 10367.
86
Rollo, pp. 22-23.
87
See lchong v. Hernandez, I 01 Phil. 1155, 1164 ( 1957).

rl
 Decision 17 G.R. No. 221318

by a declaration of a proper authority that such person is no longer insane

or incompetent;

d) Any person who did not vote in the two (2) successive preceding
regular elections as shown by their voting records. For this purpose,
regular elections do not include the Sangguniang Kabataan (SK)
elections;

e) Any person whose registration has been ordered excluded by the Court;
and

f) Any person who has lost his Filipino citizenship.

For this purpose, the clerks of court for the Municipal/Municipal 1

Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan shall
furnish the Election Officer of the city or municipality concerned at the
end of each month a certified list of persons who are disqualified under
paragraph (a) hereof, with their addresses. The Commission may request a
certified list of persons who have lost their Filipino Citizenship or
declared as insane or incompetent with their addresses from other
government agencies.

The Election Officer shall post in the bulletin board of his office a
certified list of those persons whose registration were deactivated and the
reasons therefor, and furnish copies thereof to the local heads of political
parties, the national central file, provincial file, and the voter concerned.

With these considerations in mind, petitioners' claim that biometrics

validation imposed under RA 10367, and implemented under COMELEC
Resolution Nos. 9721, 9863, and 10013, must perforce fail. To reiterate, this
requirement is not a "qualification" to the exercise of the right of suffrage,
but a mere aspect of the registration procedure, of which the State has the
right to reasonably regulate. It was institutionalized conformant to the
limitations of the 1987 Constitution and is a mere complement to the
existing Voter's Registration Act of 1996. Petitioners would do well to be
reminded of this Court's pronouncement in AKBAYAN-Youth, wherein it
was held that:

[T]he act of registration is an indispensable precondition to the right of

suffrage. For registration is part and parcel of the right to vote and an
indispensable element in the election process. Thus, contrary to
petitioners' argument, registration cannot and should not be denigrated to
the lowly stature of a mere statutory requirement. Proceeding from the
significance of registration as a necessary requisite to the right to vote,
the State undoubtedly, in the exercise of its inherent police power,
may then enact laws to safeguard and regulate the act of voter's
registration for the ultimate purpose of conducting honest, orderly
and peaceful election, to the incidental yet generally important end, that
even pre-election activities could be performed by the duly constituted
authorities in a realistic and orderly manner - one which is not indifferent r
and so far removed from the pressing order of the day and the prevalent
88
circumstances of the times. (Emphasis and underscoring supplied)

88
Akbayan-Youth v. COMELEC, Supra note 81, at 636.

,)
Decision 18 G.R. No. 221318

Thus, unless it is shown that a registration requirement rises to the

level of a literacy, property or other substantive requirement as contemplated
by the Framers of the Constitution - that is, one which propagates a socio-
economic standard which is bereft of any rational basis to a person's ability
to intelligently cast his vote and to further the public good - the same cannot
be struck down as unconstitutional, as in this case.

III.

For another, petitioners assert that biometrics validation gravely

violates the Constitution, considering that, applying the strict scrutiny test, it
is not poised with a compelling reason for state regulation and hence, an
unreasonable deprivation of the right to suffrage. 89 They cite the case of
White Light Corp. v. City of Manila 90 (White Light), wherein the Court stated
that the scope of the strict scrutiny test covers the protection of the right of
suffrage. 91

Contrary to petitioners' assertion, the regulation passes the strict

scrutiny test.

In terms of judicial review of statutes or ordinances, strict scrutiny

refers to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental
freedoms. Strict scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental
rights as expansion from its earlier applications to equal protection. 92 As
pointed out by petitioners, the United States Supreme Court has expanded
the scope of strict scrutiny to protect fundamental rights such as suffrage,
93
judicial access, and interstate travel.

Applying strict scrutiny, the focus is on the presence of compelling,

rather than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest, 94 and the burden befalls upon
95
the State to prove the same.

In this case, respondents have shown that the biometrics validation

requirement under RA 10367 advances a compelling state interest. It was
precisely designed to facilitate the conduct of orderly, honest, and credible

89
Rollo, pp. 22-24.
90
596 Phil. 444 (2009).
91
Id. at 463.
92 Id.
93 Id.
94 Id.
95
See Concurring Opinion of Justice Teresita J. Leonardo-De Castro in Garcia v. Drilon, G.R. No.
179267, June 25, 2013, 699 SCRA 352, 450. See also Separate Concurring Opinion of Chief Justice
Reynato S. Puno in Ang Lad/ad LGBT Party v. COMELEC, 632 Phil. 32, 106 (2010).

~
Decision 19 G.R. No. 221318

elections by containing - if not eliminating, the perennial problem of having

flying voters, as well as dead and multiple registrants. According to the
sponsorship speech of Senator Aquilino L. Pimentel III, the objective of the
law was to cleanse the national voter registry so as to eliminate electoral
fraud and ensure that the results of the elections were truly reflective of the
genuine will of the people. 96 The foregoing consideration is unquestionably
a compelling state interest.

Also, it was shown that the regulation is the least restrictive means for
achieving the above-said interest. Section 697 of Resolution No. 9721 sets
the procedure for biometrics validation, whereby the registered voter is only
required to: (a) personally appear before the Office of the Election Officer;
( b) present a competent evidence of identity; and (c) have his photo,
signature, and fingerprints recorded. It is, in effect, a manner of updating
one's registration for those already registered under RA 8189, or a first-time
registration for new registrants. The re-registration process is amply justified
by the fact that the government is adopting a novel technology like
biometrics in order to address the bane of electoral fraud that has enduringly
plagued the electoral exercises in this country. While registrants may be
inconvenienced by waiting in long lines or by not being accommodated on
certain days due to heavy volume of work, these are typical burdens of
voting that are remedied by bureaucratic improvements to be implemented
by the COMELEC as an administrative institution. By and large, the
COMELEC has not turned a blind eye to these realities. It has tried to

96
See Sponsorship Speech of Senator Aquilino L. Pimentel III in Senate Bill 1030. Records of the
Senate, Vol. Ill, No. 26, October 16, 2012, p. 64.
97
Section 6. Procedure for validation.
a. The voter shall personally appear before the GEO/satellite office.
b. Based on the list of voters without or with incomplete biometrics, the EO shall conduct an initial
interview on the personal circumstances and in order to establish the identity of the voter shall require
him to present any of the following documents:
1. Current employees identification card (ID), with the signature of the employer or authorized
representative;
2. Postal ID;
3. Students ID or library card, signed by the school authority;
4. Senior Citizens ID;
5. Drivers license;
6. NBI/PNP clearance;
7. Passport;
8. SSS/GSIS ID;
9. Integrated Bar of the Philippines (IBP) ID;
I 0. License issued by the Professional Regulatory Commission (PRC) and;
I I. Any other valid ID.
c. The identity of the voter having been established, the EO shall verify in the database his record
whether he has no/incomplete BIOMETRICS data. If the applicant has no or incomplete
BIOMETRICS data, the EO shall record in the logbook the following data: I) date and time; 2) the
name of the voter; and 3) VRR number. After which, the EO shall direct the voter to the VRM
Operator. The VRM Operator shall:
I. Click "Select File", then click" Other Application" then click "List of Records." ,
2. Type the last name and/or first name and/or maternal name in the space provided arid click
SEARCH button.
3. Right-click in the record of the voter and select VALIDATION from the list of application type.
4. Click on the BIOMETRICS tab.
5. Capture the photo, signature and fingerprints of the voter.
6. Save the record.
d. The voter shall be instructed to affix his signature in the logbook. (See rollo, pp. 47-48.)

~
Decision 20 G.R. No. 221318

account for the exigencies by holding continuous registration as early as

May 6, 2014 until October 31, 2015, or for over a period of 18 months. To
make the validation process as convenient as possible, the COMELEC even
went to the extent of setting up off-site and satellite biometrics registration
in shopping malls and conducted the same on Sundays. 98 Moreover, it
deserves mentioning that RA 10367 and Resolution No. 9721 did not
mandate registered voters to submit themselves to validation every time
there is an election. In fact, it only required the voter to undergo the
validation process one ( 1) time, which shall remain effective in succeeding
elections, provided that he remains an active voter. To add, the failure to
validate did not preclude deactivated voters from exercising their right to
vote in the succeeding elections. To rectify such status, they could still apply
for reactivation99 following the procedure laid down in Section 28 100 of RA
8189.

That being said, the assailed regulation on the right to suffrage was
sufficiently justified as it was indeed narrowly tailored to achieve the
compelling state interest of establishing a clean, complete, permanent and
updated list of voters, and was demonstrably the least restrictive means in
promoting that interest. IOI

IV.

Petitioners further aver that RA 10367 and the COMELEC Resolution

Nos. 9721, 9863, and 10013 violate the tenets of procedural due process
because of the short periods of time between hearings and notice, and the
. . procee d.mgs. Io2
summary nature o f the deactivation

Petitioners are mistaken.

98
ld.at71-75.
99
Section 8 of RA 10367 reads:
Section 8. Reactivation. - Those deactivated under the preceding section may apply for reactivation
after the May 2016 elections following the procedure provided in Section 28 of Republic Act No.
8189.
Joo Section 28 of RA 8189 reads:
Section 28. Reactivation of Registration. - Any voter whose registration has been deactivated pursuant
to the preceding Section may file with the Election Officer a sworn application for reactivation of his
registration in the form of an affidavit stating that the grounds for the deactivation no longer exist any
time but not later than one hundred twenty ( 120) days before a regular election and ninety (90) days
before a special election.
The Election Officer shall submit said application to the Election Registration Board for
appropriate action.
In case the application is approved, the Election Officer shall retrieve the registration record from
the inactive file and include the same in the corresponding precinct book of voters. Local heads or
representatives of political parties shall be properly notified on approved applications.
Joi See Social Weather Stations, Inc. v. COMELEC, G.R. No. 208062, April 7, 2015.
JOl See Rollo, pp. 26-28.

rJ
 Decision 21 G.R. No. 221318

At the outset, it should be pointed out that the COMELEC, through

Resolution No. 10013, had directed EOs to: (a) "[p]ost the lists of voters
without biometrics data in the bulletin boards of the City/Municipal hall,
Office of the Election Officer and in the barangay hall along with the notice
of ERB hearing;" and (b) "[s]end individual notices to the affected voters
included in the generated list of voters without biometrics data." 103 The same
Resolution also accords concerned individuals the opportunity to file their
opposition/objection to the deactivation ofVRRs not later than November 9,
2015 in accordance with the period prescribed in Section 4, 104 Chapter I,
Resolution No. 9853. Meanwhile, Resolution Nos. 9721 and 9863
respectively state that "[ d]eactivation x x x shall comply with the
requirements on posting, ERB hearing and service of individual notices to
105
the deactivated voters," and that the "[d]eactivation for cases falling under
this ground shall be made during the November 16, 2015 Board hearing." 106
While the proceedings are summary in nature, the urgency of finalizing the
voters' list for the upcoming May 2016 Elections calls for swift and
immediate action on the deactivation of VRRs of voters who fail to comply
with the mandate of RA 10367. After all, in the preparation for the, May
2016 National and Local Elections, time is of the essence. The summary
nature of the proceedings does not depart from the fact that petitioners were
given the opportunity to be heard.

Relatedly, it deserves emphasis that the public has been sufficiently

informed of the implementation of RA 10367 and its deactivation feature.
RA 10367 was duly published as early as February 22, 2013, 107 and took

103
Se Item A (3) and (5) of Resolution No. 10013; id. at 57.
104
Section 4. Hearing and approval/disapproval of applications. - The applications shall be heard by the
Election Registration Board (Board) at the [Office of the Election Officer (OEO)], in accordance with
the following schedule:

Period to file Last day to post Last day to file Hearing and
applications Notice of Hearing opposition to Approval/
with Lists of applications Disapproval of
Aoolicant aonlications,
May 6 to June 30, July 7, 2014 July 14, 2014 July 21, 2014
2014
July 1 to September October 6, 2014 October 13, 2014 October 20, 2014
30,2014
October I to January 5, 2015 January 12, 2015 January 19, 2015
December 20, 2014
January 5 to March 31, April 6, 2015 April 13, 2015 April 20, 2015
2015
April I to June 30, July 6, 2015 July 13, 2015 July 20, 2015
2015
July 1 to September October 5, 2015 October 12, 2015 October 19, 2015
,__ 30,2015
October I to 31, 2015 November 4, 2015 November9, November 16, 2015
2015

If the last day to post notice, file oppositions and hearing for approval/disapproval falls on a
holiday or a non-working day, the same shall be done on the next working day.
105
See Section 8 of Resolution No. 9721; rollo, p. 48.
106
See Item B (2) (a.7) of Resolution No. 9863; id. at 53.
107
RA 10367 was published in the February 22, 2013 issues of Manila Bulletin and Philippine Star.

,J
Decision 22 G.R. No. 221318

effect fifteen (15) days after. 108 Accordingly, dating to the day of its
publications, all are bound to know the terms of its provisions, including the
consequences of non-compliance. As implemented, the process of
biometrics validation commenced on July 1, 2013, or approximately two and
a half (2Yz) years before the October 31, 2015 deadline. To add, the
COMELEC conducted a massive public information campaign, i.e., NoBio-
NoBoto, from May 2014 until October 31, 2015, or a period of eighteen (18)
months, whereby voters were reminded to update and validate their
registration records. On top of that, the COMELEC exerted efforts to make
the validation process more convenient for the public as it enlisteu the
assistance of malls across Metro Manila to serve as satellite registration
centers and declared Sundays as working days for COMELEC offices within
the National Capital Region and in highly urbanized cities. 109 Considering
these steps, the Court finds that the public has been sufficiently apprised of
the implementation of RA 10367, and its penalty of deactivation in case of
failure to comply. Thus, there was no violation of procedural due process.

v.

Petitioners aver that the poor experience of other countries - i.e.,

Guatemala, Britain, Cote d'Ivoire, Uganda, and Kenya - in implementing
biometrics registration should serve as warning in adhering to the system.
They highlighted the inherent difficulties in launching the same such as
environmental and geographical challenges, lack of training and skills,
mechanical breakdown, and the need for re-registration. They even adrpitted
that while biometrics may address electoral fraud caused by multiple
registrants, it does not, however, solve other election-related problems such
as vote-buymg. an d source-co de mampu. 1at10n.
. 110

Aside from treading on mere speculation, the insinuations are

improper. Clearly, petitioners' submissions principally assail the wisdom of
the legislature in adopting the biometrics registration system in curbing
electoral fraud. In this relation, it is significant to point out that questions
relating to the wisdom, morality, or practicability of statutes are policy
matters that should not be addressed to the judiciary. As elucidated in the
case of Farinas v. The Executive Secretary: 111

[P]olicy matters are not the concern of the Court. Government policy is
within the exclusive dominion of the political branches of the government.
It is not for this Court to look into the wisdom or propriety of
legislative determination. Indeed, whether an enactment is wise or
unwise, whether it is based on sound economic theory, whether it is the r
best means to achieve the desired results, whether, in short, the legislative
discretion within its prescribed limits should be exercised in a particular

108
See Section 15 of RA 10367.
109
Rollo, p. 79.
110
Id. at 28-3 1.
111
See 463 Phil. 179 ( 2003).

rl
Decision 23 G.R. No. 221318

manner are matters for the judgment of the legislature, and the serious r
conflict of opinions does not suffice to bring them within the range of
judicial cognizance. 112 (Emphases and underscoring supplied)

In the exercise of its legislative power, Congress has a wide latitude of

discretion to enact laws, such as RA 10367, to combat electoral fraud which,
in this case, was through the establishment of an updated voter registry. In
making such choices to achieve its desired result, Congress has necessarily
sifted through the policy's wisdom, which this Court has no authority to
review, much less reverse. 113 Whether RA 10367 was wise or unwise, or was
the best means in curtailing electoral fraud is a question that does not present
a justiciable issue cognizable by the courts. Indeed, the reason behind the
legislature's choice of adopting biometrics registration notwithstanding the
experience of foreign countries, the difficulties in its implementation, or its
concomitant failure to address equally pressing election problems, is
essentially a policy question and, hence, beyond the pale of judicial scrutiny.

VI.

Finally, petitioners' proffer that Resolution No. 9863 which fixed the
deadline for validation on October 31, 2015 violates Section 8 of RA 8189
which states:

Section 8. System of Continuing Registration of Voters. - The

personal filing of application of registration of voters shall be conducted
daily in the office of the Election Officer during regular office hours. No
registration shall, however, be conducted during the period starting
one hundred twenty (120) days before a regular election and ninety
(90) days before a special election. (Emphasis added.)

The position is, once more, wrong.

Aside from committing forum shopping by raising this issue despite

already being subject of a prior petition filed before this Court, i.e., G.R. No.
220918, 114 petitioners fail to consider that the 120- and 90-day periods stated
therein refer to the prohibitive period beyond which voter registration may
no longer be conducted. As already resolved in this Court's Resolution dated
December 8, 2015 in G.R. No. 220918, the subject provision does not
mandate COMELEC to conduct voter registration up to such time; rather, it
only provides a period which may not be reduced, but may be extended
115
depending on the administrative necessities and other exigencies. Verily,
as the constitutional body tasked to enforce and implement election laws, the
COMELEC has the power to promulgate the necessary rules and regulations

112
Id. at 204.
113
See Magtajas v. Pryce Properties Corporation, G.R. No. 111097, July 20, 1994, 234 SCRA 255, 268.
114
Entitled "Kabataan Party/isl v. COMELEC."
115
See Notice of Resolution in Kabataan Partylist v. COMELEC, G.R. No. 220918, December 8, 2015,
citing AKLATv. COMELEC, 471 Phil. 730, 738 (2004).

ti
Decision 24 G.R. No. 221318

to fulfil its mandate. 116 Perforce, this power includes the determination of the
periods to accomplish certain pre-election acts, 117 such as voter registration.

At this conclusory juncture, this Court reiterates that voter registration

does not begin and end with the filing of applications which, in reality, is
just the initial phase that must be followed by the approval of applications by
the ERB. 118 Thereafter, the process of filing petitions for inclusion and
exclusion follows. These steps are necessary for the generation of ther final
list of voters which, in tum, is a pre-requisite for the preparation and
completion of the Project of Precincts (POP) that is vital for the actual
elections. The POP contains the number of registered voters in each precinct
and clustered precinct, the names of the barangays, municipalities, cities,
provinces, legislative districts, and regions included in the precincts, and the
names and locations of polling centers where each precinct and clustered
precinct are assigned. 119 The POP is necessary to determine the total number
of boards of election inspectors to be constituted, the allocation of forms and
supplies to be procured for the election day, the number of vote counting
machines and other paraphernalia to be deployed, and the budget needed.
More importantly, the POP will be used as the basis for the finalization of
the Election Management System (EMS) which generates the templates of
the official ballots and determines the voting jurisdiction of legislative
districts, cities, municipalities, and provinces. 120 The EMS determines the
configuration of the canvassing and consolidation system for each voting
jurisdiction. Accordingly, as the constitutional body specifically charged I
with the enforcement and administration of all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum, and recall, 121
the COMELEC should be given sufficient leeway in accounting for the
exigencies of the upcoming elections. In fine, its measures therefor should
be respected, unless it is clearly shown that the same are devoid of any
reasonable justification.

WHEREFORE, the petition is DISMISSED due to lack of merit.

The temporary restraining order issued by this Court on December 1, 2015 is
consequently DISSOLVED.

SO ORDERED.
AiA~~ ,
ESTELA ~l.- PERLAS-BERNABE
Associate Justice

116 Id.
111 Id.
118
See Notice of Resolution in Kabataan Party-List v. COMELEC, G.R. No. 220918, December 8, 2015.
119
See rollo, p. 72.
120
See id. at 73.
121
See Section 2 (!),Article lX-C of the 1987 Constitution.
 Decision 25 G.R. No. 221318

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

Qz:j~ ......

PRESBI:;pERO J. VELASCO, r
JR.
Associate Justice Associate Justice ·

~~'-'~
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
{J~gD~~
Associate Justice

$~
MARIANO c. DEL CAsfi?Lo ~ 'JR.
Associate Justice Associate Just
1

J z

Asscciate Justice Associate Justice

Associate Justice
Decision 26 G.R. No. 221318

CERTIFICATION

I certify that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the opinion of
the Court.

MARIA LOURDES P. A. SERENO

Chief Justice
2/1/24, 8:10 PM G.R. No. 230642
Today is Thursday, February 01, 2024
Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive
G.R. No. 230642, September 10, 2019,
♦ Decision, J. Reyes, Jr., [J]
♦ Separate Concurring Opinion, Perlas-Bernabe, [J]
♦ Separate Concurring & Dissenting Opinion, Leonen, [J]
♦ Concurring & Dissenting Opinion, Jardeleza, [J]
♦ Separate Concurring Opinion, Caguioa, [J]
♦ Concurring Opinion, A. Reyes, Jr., [J]
♦ Separate Concurring & Dissenting Opinion, Gesmundo, [J]
♦ Concurring & Dissenting Opinion, Lazaro-Javier, [J]
EN BANC
[ G.R. No. 230642, September 10, 2019 ]
OSCAR B. PIMENTEL, ERROL B. COMAFAY, JR., RENE B. GOROSPE, EDWIN R. SANDOVAL, VICTORIA B.
LOANZON, ELGIN MICHAEL C. PEREZ, ARNOLD E. CACHO, AL CONRAD B. ESPALDON, ED VINCENT S.
ALBANO, LEIGHTON R. SIAZON, ARIANNE C. ARTUGUE, CLARABEL ANNE R. LACSINA, KRISTINE JANE R.
LIU, ALYANNA MARL C. BUENVIAJE, IANA PATRICIA DULA T. NICOLAS, IRENE A. TOLENTINO AND AUREA
I. GRUYAL, PETITIONERS, VS. LEGAL EDUCATION BOARD, AS REPRESENTED BY ITS CHAIRPERSON,
HON. EMERSON B. AQUENDE, AND LEB MEMBER HON. ZENAIDA N. ELEPAÑO, RESPONDENTS;
ATTYS. ANTHONY D. BENGZON, FERDINAND M. NEGRE, MICHAEL Z. UNTALAN; JONATHAN Q. PEREZ,
SAMANTHA WESLEY K. ROSALES, ERIKA M. ALFONSO, KRYS VALEN O. MARTINEZ, RYAN CEAZAR P.
ROMANO, AND KENNETH C. VARONA, RESPONDENTS-IN-INTERVENTION;
APRIL D. CABALLERO, JEREY C. CASTARDO, MC WELLROE P. BRINGAS, RHUFFY D. FEDERE, CONRAD
THEODORE A. MATUTINO AND NUMEROUS OTHERS SIMILARLY SITUATED, ST. THOMAS MORE SCHOOL
OF LAW AND BUSINESS, INC., REPRESENTED BY ITS PRESIDENT RODOLFO C. RAPISTA, FOR HIMSELF
AND AS FOUNDER, DEAN AND PROFESSOR, OF THE COLLEGE OF LAW, JUDY MARIE RAPISTA-TAN,
LYNNART WALFORD A. TAN, IAN M. ENTERINA, NEIL JOHN VILLARICO AS LAW PROFESSORS AND AS
CONCERNED CITIZENS, PETITIONERS-INTERVENORS;
[G.R. No. 242954]
FRANCIS JOSE LEAN L. ABAYATA,GRETCHEN M. VASQUEZ, SHEENAH S. ILUSTRISMO, RALPH LOUIE
SALAÑO, AIREEN MONICA B. GUZMAN, DELFINO ODIAS, DARYL DELA CRUZ, CLAIRE SUICO, AIVIE S.
PESCADERO, NIÑA CHRISTINE DELA PAZ, SHEMARK K. QUENIAHAN, AL JAY T. MEJOS, ROCELLYN L.
DAÑO,* MICHAEL ADOLFO, RONALD A. ATIG, LYNNETTE C. LUMAYAG, MARY CHRIS LAGERA, TIMOTHY B.
FRANCISCO, SHEILA MARIE C. DANDAN, MADELINE C. DELA PEÑA, DARLIN R. VILLAMOR, LORENZANA
L. LLORICO, AND JAN IVAN M. SANTAMARIA, PETITIONERS, VS. HON. SALVADOR MEDIALDEA,
EXECUTIVE SECRETARY, AND LEGAL EDUCATION BOARD, HEREIN REPRESENTED BY ITS
CHAIRPERSON, EMERSON B. AQUENDE, RESPONDENTS.
DECISION
REYES, J. JR., J.:
On the principal grounds of encroachment upon the rule-making power of the Court concerning the practice of law,
violation of institutional academic freedom and violation of a law school aspirant's right to education, these
consolidated Petitions for Prohibition (G.R. No. 230642) and Certiorari and Prohibition (G.R. No. 242954) under
Rule 65 of the Rules of Court assail as unconstitutional Republic Act (R.A.) No. 7662,1 or the Legal Education
Reform Act of 1993, which created the Legal Education Board (LEB). On the same principal grounds, these petitions
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also particularly seek to declare as unconstitutional the LEB issuances establishing and implementing the
nationwide law school aptitude test known as the Philippine Law School Admission Test or the PhiLSAT.
The Antecedents
Prompted by clamors for the improvement of the system of legal education on account of the poor performance of
law students and law schools in the bar examinations,2 the Congress, on December 23, 1993, passed into law R.A.
No. 7662 with the following policy statement:
SEC. 2. Declaration of Policies. - It is hereby declared the policy of the State to uplift the standards of
legal education in order to prepare law students for advocacy, counselling, problem-solving, and
decision-making, to infuse in them the ethics of the legal profession; to impress on them the
importance, nobility and dignity of the legal profession as an equal and indispensable partner of the
Bench in the administration of justice and to develop social competence.
Towards this end, the State shall undertake appropriate reforms in the legal education system, require
proper selection of law students, maintain quality among law schools, and require legal apprenticeship
and continuing legal education.
R.A. No. 7662 identifies the general and specific objectives of legal education in this manner:
SEC. 3. General and Specific Objective of Legal Education. -
(a) Legal education in the Philippines is geared to attain the following objectives:
(1) to prepare students for the practice of law;
(2) to increase awareness among members of the legal profession of the needs of the poor,
deprived and oppressed sectors of society;
(3) to train persons for leadership;
(4) to contribute towards the promotion and advancement of justice and the improvement of its
administration, the legal system and legal institutions in the light of the historical and
contemporary development of law in the Philippines and in other countries.
(b) Legal education shall aim to accomplish the following specific objectives:
(1) to impart among law students a broad knowledge of law and its various fields and of legal
institutions;
(2) to enhance their legal research abilities to enable them to analyze, articulate and apply the
law effectively, as well as to allow them to have a holistic approach to legal problems and Issues;
(3) to prepare law students for advocacy, [counseling], problem­-solving and decision-making,
and to develop their ability to deal with recognized legal problems of the present and the future;
(4) to develop competence in any field of law as is necessary for gainful employment or sufficient
as a foundation for future training beyond the basic professional degree, and to develop in them
the desire and capacity for continuing study and self­improvement;
(5) to inculcate in them the ethics and responsibilities of the legal profession; and
(6) to produce lawyers who conscientiously pursue the lofty goals of their profession and to fully
adhere to its ethical norms.
For these purposes, R.A. No. 7662 created the LEB, an executive agency which was made separate from the
Department of Education, Culture and Sports (DECS), but attached thereto solely for budgetary purposes and
administrative support.3 The Chairman and regular members of the LEB are to be appointed by the President for a
term of five years, without reappointment, from a list of at least three nominees prepared, with prior authorization
from the Court, by the Judicial and Bar Council (JBC).4
Section 7 of R.A. No. 7662 enumerates the powers and functions of the LEB as follows:
SEC. 7. Powers and Functions. - For the purpose of achieving the objectives of this Act, the Board shall
have the following powers and functions:
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(a) to administer the legal education system in the country in a manner consistent with the
provisions of this Act;
(b) to supervise the law schools in the country, consistent with its powers and functions as herein
enumerated;
(c) to set the standards of accreditation for law schools taking into account, among others, the
size of enrollment, the qualifications of the members of the faculty, the library and other facilities,
without encroaching upon the academic freedom of institutions of higher learning;
(d) to accredit law schools that meet the standards of accreditation;
(e) to prescribe minimum standards for law admission and minimum qualifications and
compensation to faculty members;
(f) to prescribe the basic curricula for the course of study aligned to the requirements for
admission to the Bar, law practice and social consciousness, and such other courses of study as
may be prescribed by the law schools and colleges under the different levels of accreditation
status;
(g) to establish a law practice internship as a requirement for taking the Bar which a law student
shall undergo with any duly accredited private or public law office or firm or legal assistance
group anytime during the law course for a specific period that the Board may decide, but not to
exceed a total of twelve (12) months. For this purpose, the Board shall prescribe the necessary
guidelines for such accreditation and the specifications of such internship which shall include the
actual work of a new member of the Bar[;]
(h) to adopt a system of continuing legal education. For this purpose, the Board may provide for
the mandatory attendance of practicing lawyers in such courses and for such duration as the
Board may deem necessary; and
(i) to perform such other functions and prescribe such rules and regulations necessary for the
attainment of the policies and objectives of this Act.
On the matter of accreditation of law schools, R.A. No. 7662 further elaborates:
SEC. 8. Accreditation of Law Schools. - Educational institutions may not operate a law school unless
accredited by the Board. Accreditation of law schools may be granted only to educational institutions
recognized by the Government.
SEC. 9. Withdrawal or Downgrading of Accreditation. - The [LEB] may withdraw or downgrade the
accreditation status of a law school if it fails to maintain the standards set for its accreditation status.
SEC. 10. Effectivity of Withdrawal or Downgrading of Accreditation. - The withdrawal or downgrading of
accreditation status shall be effective after the lapse of the semester or trimester following the receipt
by the school of the notice of withdrawal or downgrading unless, in the meantime, the school meets
and/or upgrades the standards or corrects the deficiencies upon which the withdrawal or downgrading
of the accreditation status is based.
Bar Matter No. 979-B
Re: Legal Education
In July 2001, the Court's Committee on Legal Education and Bar Matters (CLEBM), through its Chairperson, Justice
Jose C. Vitug, noted several objectionable provisions of R.A. No. 7662 which "go beyond the ambit of education of
aspiring lawyers and into the sphere of education of persons duly licensed to practice the law profession."5
In particular, the CLEBM observed:
x x x [U]nder the declaration of policies in Section 2 of [R.A. No. 7662, the State "shall x x x require
apprenticeship and continuing legal education." The concept of continuing legal education
encompasses education not only of law students but also of members of the legal profession. [This]
implies that the [LEB] shall have jurisdiction over the education of persons who have finished the law
course and are already licensed to practice law[, in violation of the Supreme Court's power over the
Integrated Bar of the Philippines].
x x x Section 3 provides as one of the objectives of legal education increasing "awareness among
members of the legal profession of the needs of the poor, deprived and oppressed sectors of the
society." Such objective should not find a place in the law that primarily aims to upgrade the standard of
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schools of ·law as they perform the task of educating aspiring lawyers. Section 5, paragraph 5 of Article
VIII of the Constitution also provides that the Supreme Court shall have the power to promulgate rules
on "legal assistance to the underprivileged" and hence, implementation of [R.A. No. 7662 might give
rise to infringement of a constitutionally mandated power.
x x x [Section 7(e) giving the LEB the power to prescribe minimum standards for law admission and
Section 7(h) giving the LEB the power to adopt a system of continuing legal education and for this
purpose, the LEB may provide for the mandatory attendance of practicing lawyers in such courses and
for such duration as the LEB may deem necessary] encroach upon the Supreme Court's powers under
Section 5, paragraph 5 of Article VIII of the Constitution. Aside from its power over the Integrated Bar of
the Philippines, the Supreme Court is constitutionally mandated to promulgate rules concerning
admission to the practice of law.6
While the CLEBM saw the need for the LEB to oversee the system of legal education, it cautioned that the law's
objectionable provisions, for reasons above-cited, must be removed.7
Relative to the foregoing observations, the CLEBM proposed the following amendments to R.A. No. 7662:
SEC. 2. Declaration of Policies. - It is hereby declared the policy of the State to uplift the standards of
legal education in order to prepare law students for advocacy, counseling, problem-solving, and
decision­-making; to infuse in them the ethics of the legal profession; to impress upon them the
importance, nobility and dignity of the legal profession as an equal and indispensable partner of the
Bench in the administration of justice; and, to develop socially-committed lawyers with integrity and
competence.
Towards this end, the State shall undertake appropriate reforms in the legal education system, require
proper selection of law students, provide for legal apprenticeship, and maintain quality among law
schools.
xxxx
SEC. 3. General and Specific Objectives of Legal Education. x x x
xxxx
2.) to increase awareness among law students of the needs of the poor, deprived and oppressed
sectors of society;
xxxx
SEC. 7. Power and functions. - x x x
(a) to regulate the legal education system in accordance with its powers and functions herein
enumerated;
(b) to establish standards of accreditation for law schools, consistent with academic freedom and
pursuant to the declaration of policy set forth in Section 2 hereof;
(c) to accredit law schools that meet the standards of accreditation;
(d) to prescribe minimum standards for admission to law schools including a system of law
aptitude examination;
(e) to provide for minimum qualifications for faculty members of law schools;
(f) to prescribe guidelines for law practice internship which the law schools may establish as part
of the curriculum; and
(g) to perform such other administrative functions as may be necessary for the attainment of the
policies and objectives of this Act.8 (Underscoring supplied)
xxxx
In a Resolution9 dated September 4, 2001, the Court approved the CLEBM's explanatory note and draft
amendments to R.A. No. 7662. The Senate and the House of Representatives were formally furnished with a copy
of said Resolution. This, notwithstanding, R.A. No. 7662 remained unaltered.
LEB Issuances
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In 2003, the Court issued a resolution authorizing the JBC to commence the nomination process for the members of LEBMO No. 18-2018 Guidelines on Cancellation or Suspension of
the LEB. In 2009, the LEB was constituted with the appointment of Retired Court of Appeals Justice Hilarion L. Classes in All Law Schools
Aquino as the first Chairperson and followed by the appointment of LEB members, namely, Dean Eulogia M. Cueva,
Justice Eloy R. Bello, Jr., Dean Venicio S. Flores and Commission on Higher Education (CHED) Director Felizardo LEBMO No. 19-2018 Migration of the Basic Law Course to Juris Doctor
Y. Francisco. Despite the passage of the enabling law in 1993, the LEB became fully operational only in June 2010.
LEBMO No. 20-2019 Discretionary Admission in the AY 2019-2020 of
Acting pursuant to its authority to prescribe the minimum standards for law schools, the LEB issued Memorandum Examinees Who Rated Below the Cut-off/Passing
Order No. 1, Series of 2011 (LEBMO No. 1-2011) providing for the Policies and Standards of Legal Education and Score but Not Less than 45% in the Philippine
Manual of Regulation for Law Schools. Law School Admission Test Administered on April
7, 2019
Since then, the LEB had issued several orders, circulars, resolutions, and other issuances which are made available
through their website:
B. Memorandum Circulars
A. Orders
Number Title/Subject
Number Title/Subject LEBMC No. 1 New Regulatory Issuances
LEBMO No. 2 Additional Rules in the Operation of the Law LEBMC No. 2 Submission of Schedule of Tuition and Other
Program School Fees
LEBMO No. 3-2016 Policies, Standards and, Guidelines for the LEBMC No. 3 Submission of Law School Information Report
Accreditation of Law Schools to Offer and
Operate Refresher Courses LEBMC No. 4 Reminder to Submit Duly Accomplished LSIR
Form
LEBMO No. 4-2016 Supplemental to [LEBMO] No. 3, Series of 2016
LEBMC No. 5 Offering of the Refresher Course for AY 2017-
LEBMO No. 5-2016 Guidelines for the [Prerequisite] Subjects in the 2018
Basic Law Courses
LEBMC No. 6 Applications for LEB Certification Numbers
LEBMO No. 6-2016 Reportorial Requirements for Law Schools
LEBMC No. 7 Application of Transitory Provision Under
LEBMO No. 7-2016 Policies and Regulations for the Administration of [LEBMO] No. 7 Series of 2017 and [LEBMO] No.
a Nationwide Uniform Law School Admission Test 11, Series of 2017 in the Admission of Freshmen
for Applicants to the Basic Law Courses in All Law Law Students in Basic Law Courses in Academic
Schools in the Country Year 2017-2018
LEBMO No. 8-2016 Policies, Guidelines and Procedures Governing LEBMC No. 8 Guidelines for Compliance with the Reportorial
Increases in Tuition and Other School Fees, and, Requirements Under [LEBMO] No. 7, Series of
Introduction of New Fees by Higher, Education 2016 for Purposes of the Academic Year 2017-
Institutions for the Law Program 2018
LEBMO No. 9-2017 Policies and Guidelines on the Conferment of LEBMC No. 9 Observance of Law Day and Philippine National
Honorary Doctor of Laws Degrees Law Week
LEBMO No. 10-2017 Guidelines on the Adoption of Academic/School LEBMC No. 10 September 21, 2017 Suspension of Classes
Calendar
LEBMC No. 11 Law Schools Authorized to Offer the Refresher
LEBMO No. 11-2017 Additional Transition Provisions to [LEBMO] No. Course in the Academic Year 2016-2017
7, Series of 2016, on PhiLSAT
LEBMC No. 12 Law Schools Authorized to Offer the Refresher
LEBMO No. 12-2018 LEB Service/Transaction Fees Course in the Academic Year 2017-2018
LEBMO No. 13-2018 Guidelines in the Conduct of Summer Classes LEBMC No. 13 Legal Research Seminar of the Philippine Group
LEBMO No. 14-2018 Policy and Regulations in Offering Elective of Law Librarians on April 4-6, 2018
Subjects LEBMC No. 14 CSC Memorandum Circular No. 22, s.2016
LEBMO No. 15-2018 Validation of the Licenses of, and the Law LEBMC No. 15 Law Schools Authorized to Offer the Refresher
Curriculum/Curricula for the Basic Law Courses in Course in the Academic Year 2018-2019
use by Law Schools and Graduate Schools of
Law LEBMC No. 16 Clarification to [LEBMO] No. 3, Series of 2016
LEBMO No. 16-2018 Policies, Standards and Guidelines for the LEBMC No. 17 Updated List of Law Schools Authorized to Offer
Academic Law Libraries of Law Schools the Refresher Course in the Academic Year 2018-
2019
LEBMO No. 17-2018 Supplemental Regulations on the Minimum
Academic Requirement of Master of Laws Degree LEBMC No. 18 PHILSAT Eligibility Requirement for Freshmen in
for Deans and Law the Academic Year 2018-2019
Professors/Lecturers/Instructors in Law Schools

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LEBMC No. 19 Guidelines for the Limited Conditional
Admission/Enrollment in the 1st Semester of the
Academic Year 2018-2019 Allowed for Those
Who Have Not Taken the PhiLSAT
LEBMC No. 20 Updated List of Law Schools Authorized to Offer
the Refresher Course in the Academic Year 2018-
2019
LEBMC No. 21 Adjustments/Corrections to the Requirements for
Law Schools to be Qualified to Conditionally
Admit/Enroll Freshmen Law Students in AY 2018-
2019
LEBMC No. 22 Advisory on who should take the September 23,
2018 PhiLSAT
LEBMC No. 23 Collection of the PhiLSAT Certificate of
Eligibility/Exemption by Law Schools from
Applicants for Admission
LEBMC No. 24 Observance of the Philippine National Law Week
LEBMC No. 25 Competition Law
LEBMC No. 26 Scholarship Opportunity for Graduate Studies for
Law Deans, Faculty Members and Law
Graduates with the 2020-2021 Philippine
Fulbright Graduate Student Program
LEBMC No. 27 Advisory on April 7, 2019 PhiLSAT and
Conditional [Enrollment] for Incoming
Freshmen/1st Year Law Students
LEBMC No. 28 April 25-26, 2019 Competition Law Training
Program
LEBMC No. 29 Detailed Guidelines for Conditional Enrollment
Permit Application
LEBMC No. 30 Law Schools Authorized to Offer Refresher
Course in AY 2019-2020
LEBMC No. 31 Law Schools Authorized to Offer Refresher
Course in AY 2019-2020
LEBMC No. 40 Reminders concerning Conditionally Enrolled
Freshmen Law Students in AY 2019-2020
C. Resolutions and Other Issuances
Number Title/Subject
Resolution No. 16 Reportorial Requirement for Law Schools with
Small Students Population
Resolution No.7, Series of 2010 Declaring a 3-Year Moratorium in the Opening of
New Law Schools
Resolution No. 8, Series of 2010 Administrative Sanctions
Resolution No. 2011-21 A Resolution Providing for Supplementary Rules
to the Provisions of LEBMO No. 1 in regard to
Curriculum and Degrees Ad Eundem
Resolution No. 2012-02 A Resolution Eliminating the Requirement of
Special, Orders for Graduates of the Basic Law
Degrees and Graduate Law Degrees and
Replacing them with a Per Law School
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Certification Approved by the Legal Education
Board
Resolution No. 2013-01 Ethical Standards of Conduct for Law Professors
Resolution No. 2014-02 Prescribing Rules on the Ll.M. Staggered
Compliance Schedule and the Exemption from
the Ll.M. Requirement
Resolution No. 2015-08 Prescribing the Policy and Rules in the
Establishment of a Legal Aid Clinic in Law
Schools
Order Annual Law Publication Requirements
Chairman Memorandum Restorative Justice to be Added as Elective
Subject
The PhiLSAT under LEBMO No.
7-2016, LEBMO No. 11-2017,
LEBMC No. 18-2018, and related
issuances
As above-enumerated, among the orders issued by the LEB was Memorandum Order No. 7, Series of
2016 (LEBMO No. 7-2016) pursuant to its power to "prescribe the minimum standards for law admission" under
Section 7(e) of R.A. No. 7662.
The policy and rationale of LEBMO No. 7-2016 is to improve the quality of legal education by requiring all those
seeking admission to the basic law course to take and pass a nationwide uniform law school admission test, known
as the PhiLSAT.10
The PhiLSAT is essentially an aptitude test measuring the examinee's communications and language proficiency,
critical thinking, verbal and quantitative reasoning.11 It was designed to measure the academic potential of the
examinee to pursue the study of law.12 Exempted from the PhiLSAT requirement were honor graduates who were
granted professional civil service eligibility and who are enrolling within two years from their college graduation.13
Synthesizing, the key provisions of LEBMO No. 7-2016 are as follows:
(1) The policy and rationale of requiring PhiLSAT is to improve the quality of legal education. The PhiLSAT
shall be administered under the control and supervision of the LEB;14
(2) The PhiLSAT is an aptitude test that measures the academic potential of the examinee to pursue the study
of law;15
(3) A qualified examinee is either a graduate of a four-­year bachelor's degree; expecting to graduate with a
four-year bachelor's degree at the end of the academic year when the PhiLSAT was administered; or a
graduate from foreign higher education institutions with a degree equivalent to a four-year bachelor's degree.
There is no limit as to the number of times a qualified examinee may take the PhiLSAT;16
(4) The LEB may designate an independent third-party testing administrator;17
(5) The PhiLSAT shall be administered at least once a year, on or before April 16, in testing centers;18
(6) The testing fee shall not exceed the amount of P1,500.00 per examination;19
(7) The cut-off or passing score shall be 55% correct answers, or such percentile score as may be prescribed
by the LEB;20
(8) Those who passed shall be issued a Certificate of Eligibility while those who failed shall be issued a
Certificate of Grade;21
(9) Passing the PhiLSAT is required for admission to any law school. No applicant shall be admitted for
enrollment as a first year student in the basic law course leading to a degree of either Bachelor of Laws or
Juris Doctor unless he has passed the PhiLSAT taken within two years before the start of the study;22
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(10) Honor graduates granted professional civil service eligibility who are enrolling within two years from
college graduation are exempted from taking and passing the PhiLSAT for purposes of admission to the basic
law course;23
(11) Law schools, in the exercise of academic freedom, can prescribe additional requirements for admission;24
(12) Law schools shall submit to LEB reports of first year students admitted and enrolled, and their PhiLSAT
scores, as well as the subjects enrolled and the final grades received by every first year student;25
(13) Beginning academic year 2018-2019, the general average requirement (not less than 80% or 2.5) for
admission to basic law course under Section 23 of LEBMO No. 1-2011 is removed;26
(14) In academic year 2017-2018, the PhiLSAT passing score shall not be enforced and the law schools shall
have the discretion to admit in the basic law course, applicants who scored less than 55% in the PhiLSAT,
provided that the law dean shall submit a justification for the admission and the required report;27 and
(15) Law schools, in violation of LEBMO No. 7-2016, shall be administratively sanctioned as prescribed in
Section 3228 of LEBMO No. 2-201329 and/or fined up to P10,000.00.30
Effective for the academic year 2017 to 2018, no applicant to law school was allowed admission without having
taken and passed the PhiLSAT. The first PhiLSAT examination was held on April 16, 2017 in seven pilot sites:
Baguio City, Metro Manila, Legazpi City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro. A total of 6,575 out
of 8,074 examinees passed the first-ever PhiLSAT. For the first PhiLSAT, the passing grade was adjusted by the
LEB from 55% to 45% by way of consideration.
Since the PhiLSAT was implemented for the first time and considering further that there were applicants who failed
to take the PhiLSAT because of the inclement weather last April 16, 2017, the LEB issued Memorandum Order No.
11, Series of 2017 (LEBMO No. 11-2017).
Under LEBMO No. 11-2017, those who failed to take the first PhiLSAT were allowed to be admitted to law schools
for the first semester of academic year 2017 to 2018 for justifiable or meritorious reasons and conditioned under the
following terms:
2. Conditions - x x x
a. The student shall take the next scheduled PhiLSAT;
b. If the student fails to take the next scheduled PhiLSAT for any reason, his/her conditional
admission in the law school shall be automatically revoked and barred from enrolling in the
following semester;
c. If the student takes the next scheduled PhiLSAT but scores below the passing or cut-off score,
his/her conditional admission shall also be revoked and barred from enrolling in the following
semester, unless the law school expressly admits him/her in the exercise of the discretion given
under Section/Paragraph 14 of LEBMO No. 7, Series of 2016, subject to the requirements of the
same provision;
d. The student whose conditional admission and enrol[l]ment is subsequently revoked shall not
be entitled to the reversal of the school fees assessed and/or refund of the school fees paid; and
e. The student shall execute under oath, and file with his/her application for a Permit for
Conditional Admission/Enrol[l]ment, an UNDERTAKING expressly agreeing to the foregoing
conditions.31
The conditional admission and enrollment under LEBMO No. 11-2017 and the transitory provision provided in
LEBMO No. 7-2016 were subsequently clarified by the LEB through its Memorandum Circular No. 7, Series of
2017 (LEBMC No. 7-2017).
On September 24, 2017 and April 8, 2018, the second and third PhiLSATs were respectively held.
On October 26, 2017, the LEB issued a Memorandum reminding law schools, law students, and other interested
persons that the passing of the PhiLSAT is required to be eligible for admission/enrollment in the basic law course
for academic year 2017 to 2018. It was also therein clarified that the discretion given to law schools to admit those
who failed the PhiLSAT during the initial year of implementation is only up to the second semester of academic year
2017-2018.
Because of the confusion as to whether conditional admission for academic year 2018 to 2019 may still be allowed,
the LEB issued Memorandum Circular No. 18, Series of 2018 (LEBMC No. 18-2018). Under LEBMC No. 18-2018, it
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was clarified that the conditional admission was permitted only in academic year 2017 to 2018 as part of the
transition adjustments in the initial year of the PhiLSAT implementation. As such, by virtue of LEBMC No. 18-2018,
the conditional admission of students previously allowed under LEBMO No. 11-2017 was discontinued.
Nevertheless, on July 25, 2018, the LEB issued Memorandum Circular No. 19, Series of 2018 (LEBMC No. 19-
2018) allowing limited conditional admission/enrollment in the first semester of academic year 2018 to 2019 for
those applicants who have never previously taken the PhiLSAT. Those who have taken the PhiLSAT and scored
below the cut-off score were disqualified. In addition, only those law schools with a passing rate of not less than
25%, are updated in the reportorial requirement and signified its intention to conditionally admit applicants were
allowed to do so. The limited enrollment was subject to the condition that the admitted student shall take and pass
the next PhiLSAT on September 23, 2018, otherwise the conditional enrollment shall be nullified. Non-compliance
with said circular was considered a violation of the minimum standards for the law program for which law schools
may be administratively penalized.
The fourth PhiLSAT then pushed through on September 23, 2018.
The Petitions
Days before the scheduled conduct of the first-ever PhiLSAT on April 16, 2017, petitioners Oscar B. Pimentel
(Pimentel), Errol B. Comafay (Comafay), Rene B. Gorospe (Gorospe), Edwin R. Sandoval (Sandoval), Victoria B.
Loanzon (Loanzon), Elgin Michael C. Perez (Perez), Arnold E. Cacho (Cacho), Al Conrad B. Espaldon (Espaldon)
and Ed Vincent S. Albano (Albano) [as citizens, lawyers, taxpayers and law professors], with their co-petitioners
Leighton R. Siazon (Siazon), Arianne C. Artugue (Artugue), Clarabel Anne R. Lacsina (Lacsina) and Kristine Jane R.
Liu (Liu) [as citizens, lawyers and taxpayers], Alyanna Mari C. Buenviaje (Buenviaje) and Iana Patricia Dula T.
Nicolas (Nicolas) [as citizens intending to take up law] and Irene A. Tolentino (Tolentino) and Aurea I. Gruyal
(Gruyal) [as citizens and taxpayers] filed their Petition for Prohibition,32 docketed as G.R. No. 230642, principally
seeking that R.A. No. 7662 be declared unconstitutional and that the creation of the LEB be invalidated together
with all its issuances, most especially the PhiLSAT, for encroaching upon the rule-making power of the Court
concerning admissions to the practice of law;33 They prayed for the issuance of a temporary restraining order (TRO)
to prevent the LEB from conducting the PhiLSAT.
Respondents-in-intervention Attys. Anthony D. Bengzon (Bengzon), Ferdinand M. Negre (Negre), Michael Z.
Untalan (Untalan), Jonathan Q. Perez (Perez), Samantha Wesley K. Rosales (Rosales), Erika M. Alfonso (Alfonso),
Krys Valen O. Martinez (Martinez), Ryan Ceazar P. Romano (Romano), and Kenneth C. Varona (Varona) [as
citizens and lawyers] moved to intervene and prayed for the dismissal of the Petition for Prohibition.34
On February 12, 2018, petitioners-in-intervention April D. Caballero (Caballero), Jerey C. Castardo (Castardo), MC
Wellroe P. Bringas (Bringas), Rhuffy D. Federe (Federe) and Conrad Theodore A. Matutino (Matutino) [as graduates
of four-year college course and applicants as first year law students], St. Thomas More School of Law and
Business, Inc., [as an educational stock corporation] and Rodolfo C. Rapista (Rapista), Judy Marie Rapista-Tan
(Rapista-Tan), Lynnart Walford A. Tan (Tan), Ian M. Enterina (Enterina) and Neil John Villarico (Villarico) [as citizens
and law professors] intervened and joined the Petition for Prohibition of Pimentel, et al., seeking to declare R.A. No.
7662 and the PhiLSAT as unconstitutional.35
Thereafter, a Petition for Certiorari and Prohibition, docketed as G.R. No. 242954, was filed by petitioners Francis
Jose Lean L. Abayata (Abayata), Gretchen M. Vasquez (Vasquez), Sheenah S. Ilustrismo (Ilustrismo), Ralph Louie
Salaño (Solaño), Aireen Monica B. Guzman (Guzman) and Delfino Odias (Odias) [as law students who failed to
pass the PhiLSAT], Daryl Dela Cruz (Dela Cruz), Claire Suico (Suico), Aivie S. Pescadero (Pescadero), Niña
Christine Dela Paz (Dela Paz), Shemark K. Queniahan (Queniahan), Al Jay T. Mejos (Mejos), Rocellyn L. Daño
(Daño), Michael Adolfo (Adolfo), Ronald A. Atig (Atig), Lynette C. Lumayag (Lumayag), Mary Chris Lagera (Lagera),
Timothy B. Francisco (Francisco), Sheila Marie C. Dandan (Dandan), Madeline C. Dela Peña (Dela Peña), Darlin R.
Villamor (Villamor), Lorenzana Llorico (Llorico) and Jan Ivan M. Santamaria (Santamaria) [as current law students
who failed to take the PhiLSAT] seeking to invalidate R.A. No. 7662 or, in the alternative, to declare as
unconstitutional the PhiLSAT. They also sought the issuance of a TRO to defer the holding of the aptitude test.36
These Petitions were later on consolidated by the Court and oral arguments thereon were held on March 5, 2019.
Temporary Restraining Order
On March 12, 2019, the Court issued a TRO37 enjoining the LEB from implementing LEBMC No. 18-2018 and, thus,
allowing those who have not taken the PhiLSAT prior to the academic year 2018 to 2019, or who have taken the
PhiLSAT, but did not pass, or who are honor graduates in college with no PhiLSAT Exemption Certificate, or honor
graduates with expired PhiLSAT Exemption Certificates to conditionally enroll as incoming freshmen law students
for the academic year 2019 to 2020 under the same terms as LEBMO No. 11-2017.
Subsequently, the LEB issued Memorandum Circular No. 27, Series of 2019 (LEBMC No. 27-2019) stating that the
PhiLSAT scheduled on April 7, 2019 will proceed and reiterated the requirements that must be complied with for the
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conditional enrollment for the academic year 2019 to 2020.
The Parties' Arguments
In G.R. No. 230642
Petitioners in G.R. No. 230642 argue that R.A. No. 7662 and the PhiLSAT are offensive to the Court's power to
regulate and supervise the legal profession pursuant to Section 5(5), Article VIII38 of the Constitution and that the
Congress cannot create an administrative office that exercises the Court's power over the practice of law. They also
argue that R.A. No. 7662 gives the JBC additional functions to vet nominees for the LEB in violation of Section 8(5),
Article VIII39 of the Constitution.
40
In their Memorandum, petitioners also question the constitutionality of the LEB's powers under Section 7(c) and
7(e)41 to prescribe the qualifications and compensation of faculty members and Section 7(h)42 on the LEB's power to
adopt a system of continuing legal education as being repugnant to the Court's rule-making power concerning the
practice of law. They also argue that the PhiLSAT violates the academic freedom of law schools and the right to
education.
Petitioners-in-intervention meanwhile contend that the PhiLSAT violates the right to liberty and pursuit of happiness
of the student-­applicants. They posit that the PhiLSAT violates the equal protection clause as it is an arbitrary form
of classification not based on substantial distinctions. They also argue that the PhiLSAT violates the right of all
citizens to quality and accessible education, violates academic freedom, and is an unfair academic requirement. It is
also their position that the PhiLSAT violates due process as it interferes with the right of every person to select a
profession or course of study. They also argue that R.A. No. 7662 constitutes undue delegation of legislative
powers.
In G.R. No. 242954
Petitioners in G.R. No. 242954 argue that certiorari and prohibition are proper remedies either under the expanded
or traditional jurisdiction of the Court. They also invoke the doctrine of transcendental importance.
Substantively, they contend that R.A. No. 7662, specifically Section 3(a)(2)43 on the objective of legal education to
increase awareness among members of the legal profession, Section 7(e) on law admission, 7(g)44 on law practice
internship, and 7(h) on adopting a system of continuing legal education, and the declaration of policy on continuing
legal education45 infringe upon the power of the Court to regulate admission to the practice of law. They profess that
they are not against the conduct of law school admission test per se, only that the LEB cannot impose the PhiLSAT
as the power to do so allegedly belongs to the Court.46
It is also their contention that the PhiLSAT violates academic freedom as it interferes with the law school's exercise
of freedom to choose who to admit. According to them, the LEB cannot issue penal regulations, and the consequent
forfeiture of school fees and the ban on enrollment for those who failed to pass the PhiLSAT violate due process.
The Comments
Procedurally, the Office of the Solicitor General (OSG), representing the LEB, argues that certiorari and prohibition
are not proper to assail the constitutionality of R.A. No. 7662 either under the traditional or expanded concept of
judicial power. For the OSG, R.A. No. 7662 was enacted pursuant to the State's power to regulate all educational
institutions, and as such, there could be no grave abuse of discretion. It also claims that the Congress is an
indispensable party to the petitions.
Substantively, the OSG contends that the Court's power to regulate admission to the practice of law does not
include regulation of legal education. It also defends Section 7(e) on the LEB's power to prescribe minimum
standards for law admission as referring to admission to law schools; Section 7(g) on the LEB's power to establish a
law practice internship as pertaining to the law school curriculum which is within the power of the LEB to regulate;
and 7(h) on the LEB's power to adopt a system of continuing legal education as being limited to the training of
lawyer-professors.47 Anent the argument that R.A. No. 7662 gives the JBC additional functions not assigned to it by
the Court, the OSG points out that the Court had actually authorized the JBC to process the applications for
membership to the LEB making this a non-issue.
In defending the validity of the PhiLSAT, the OSG advances the argument that the PhiLSAT is the minimum standard
for entrance to law schools prescribed by the LEB pursuant to the State's power to regulate education. The OSG
urges that the PhiLSAT is no different from the National Medical Admission Test (NMAT) which the Court already
upheld as a valid exercise of police power in the seminal case of Tablarin v. Gutierrez.48
It is also the position of the OSG that neither the PhiLSAT nor the provisions of R.A. No. 7662 violate academic
freedom because the standards for entrance to law school, the standards for accreditation, the prescribed
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qualifications of faculty members, and the prescribed basic curricula are fair, reasonable, and equitable admission
and academic requirements.
For their part, respondents in-intervention contend that R.A. No. 7662 enjoys the presumption of constitutionality
and that the study of law is different from the practice of law.
In its Comment to the Petition-in-Intervention, the OSG dismisses as speculative the argument that the PhiLSAT is
anti-poor, and adds that the Court has no competence to rule on whether the PhiLSAT is an unfair or unreasonable
requirement, it being a question of policy.
Respondents-in-intervention, for their part, argue that the right of the citizens to accessible education means that the
State shall make quality education accessible only to those qualified enough, as determined by fair, reasonable, and
equitable admission and academic requirements. They dispute the claimed intrusion on academic freedom as law
schools are not prevented from selecting who to admit among applicants who have passed the PhiLSAT. They
stress that the right to education is not absolute and may be regulated by the State, citing Calawag v. University of
the Philippines Visayas.49
By way of Reply, petitioners-in-intervention emphasize that the doctrine in Tablarin50 is inapplicable as medical
schools are not the same as law schools. They further aver that the decline in enrollment as a result of the
implementation of the PhiLSAT is not speculative.51
The Issues
After a careful consideration of the issues raised by the parties in their pleadings and refined during the oral
arguments, the issues for resolution are synthesized as follows:
I. Procedural Issues:
A. Remedies of certiorari and prohibition; and
B. Requisites of judicial review and the scope of the Court's review in the instant petitions.
II. Substantive Issues:
A. Jurisdiction over legal education;
B. Supervision and regulation of legal education as an exercise of police power;
1. Reasonable supervision and regulation
2. Institutional academic freedom
3. Right to education
C. LEB's powers under R.A. No. 7662 vis-a-vis the Court's jurisdiction over the practice of law; and
D. LEB's powers under R.A. No. 7662 vis-a-vis the academic freedom of law schools and the right to
education.
The Rulings of the Court
I.
Procedural Issues
A.
Remedies of Certiorari and Prohibition
The propriety of the remedies of certiorari and prohibition is assailed on the ground that R.A. No. 7662 is a
legislative act and not a judicial, quasi-judicial, or ministerial function. In any case, respondents argue that the issues
herein presented involve purely political questions beyond the ambit of judicial review.
The Court finds that petitioners availed of the proper remedies.
The 193552 and 197353 Constitutions mention, but did not define, "judicial power." In contrast, the 1987 Constitution
lettered what judicial power is and even "expanded" its scope.
As constitutionally defined under Section 1, Article VIII of the 1987 Constitution,54 judicial power is no longer limited
to the Court's duty to' settle actual controversies involving rights which are legally demandable and enforceable, or
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the power of adjudication, but also includes, the duty to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
This innovation under the 1987 Constitution later on became known as the Court's traditional jurisdiction and
expanded jurisdiction, respectively.55
The expanded scope of judicial review mentions "grave abuse of discretion amounting to lack or excess of
jurisdiction" to harbinger the exercise of judicial review; while petitions for certiorari56 and prohibition57 speak of "lack
or excess of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction." Petitions
for certiorari and prohibition as it is understood under Rule 65 of the Rules of Court are traditionally regarded as
supervisory writs used as a means by superior or appellate courts, in the exercise of their supervisory jurisdiction, to
keep subordinate courts within the bounds of their jurisdictions. As such, writs of certiorari and prohibition correct
only errors of jurisdiction of judicial and quasi-judicial bodies.58
However, considering the commonality of the ground of "grave abuse of discretion," a Rule 65 petition, as a
procedural vehicle to invoke the Court's expanded jurisdiction, has been allowed.59 After all, there is grave abuse of
discretion when an act is done contrary to the Constitution, the law or jurisprudence, or is executed whimsically,
capriciously or arbitrarily, out of malice, ill will, or personal bias.60 In Spouses Imbong v. Ochoa, Jr.,61 the Court
emphasized that certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues.
That it is a legislative act which is being assailed is likewise not a ground to deny the present petitions.
For one, the 1987 Constitution enumerates under Section 5(2)(a), Article VIII,62 the Court's irreducible powers which
expressly include the power of judicial review, or the power to pass upon the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.
For another, the Court's expanded jurisdiction, when invoked, permits a review of acts not only by a tribunal, board,
or officer exercising judicial, quasi-judicial or ministerial functions, but also by any branch or instrumentality of the
Government. "Any branch or instrumentality of the Government" necessarily includes the Legislative and the
Executive, even if they are not exercising judicial, quasi-judicial or ministerial functions.63 As such, the Court may
review and/or prohibit or nullify, when proper, acts of legislative and executive officials, there being no plain, speedy,
or adequate remedy in the ordinary course of law.64
The power of judicial review over congressional action, in particular, was affirmed in Francisco, Jr. v. The House of
Representatives,65 wherein the Court held:
There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional
action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well within the power and jurisdiction of the Court
to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in
the exercise of their functions and prerogatives. In Tañada v. Angara, where petitioners sought to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held that the petition raised a justiciable
controversy and that when an action of the legislative branch is alleged to have seriously infringed the Constitution,
it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, [this
Court] declared null and void a resolution of the House of Representatives withdrawing the nomination, and
rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section
17, Article VI of the Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House representation
in the Commission on Appointments was based on proportional representation of the political parties as provided in
Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, it held that the act of the
House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial
review. In Tañada v. Cuenco, it held that although under the Constitution, the legislative power is vested exclusively
in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of
Congress. In Angara v. Electoral Commission, it exercised its power of judicial review to determine which between
the Electoral Commission and the National Assembly had jurisdiction over an electoral dispute concerning members
of the latter. (Internal citations omitted; emphases supplied)
This was reiterated in Villanueva v. Judicial and Bar Council,66 as follows:
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and
reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a
tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.
This application is expressly authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and executive officials. (Internal citation omitted; emphasis supplied)
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Consistently, in Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City,67 the remedies of certiorari and
prohibition were regarded as proper vehicles to assail the constitutionality of curfew ordinances, and in Agcaoili v.
Fariñas,68 to question the contempt powers of the Congress in the exercise of its power of inquiry in aid of
legislation.
The consistency in the Court's rulings as to the propriety of the writs of certiorari and prohibition under Rule 65 of
the Rules of Court to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions, but also to correct, undo, or restrain any act of grave abuse
of discretion on the part of the legislative and the executive, propels the Court to treat the instant petitions in the
same manner.
B.
Requisites for Judicial Review
The power of judicial review is tritely defined as the power to review the constitutionality of the actions of the other
branches of the government.69 For a proper exercise of its power of review in constitutional litigation, certain
requisites must be satisfied: (1) an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have "standing" to challenge; (3) the question of constitutionality must be raised at
the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.70
These requisites are effective limitations on the Court's exercise of its power of review because judicial review in
constitutional cases is quintessentially deferential, owing to the great respect that each co-equal branch of the
Government affords to the other.
Of these four requisites, the first two, being the most essential,71 deserve an extended discussion in the instant
case.
1. Actual Case or Controversy
Fundamental in the exercise of judicial power, whether under the traditional or expanded setting, is the presence of
an actual case or controversy.72 An actual case or controversy is one which involves a conflict of legal rights and an
assertion of opposite legal claims susceptible of judicial resolution. The case must not be moot or academic, or
based on extra-legal or other similar considerations not cognizable by a court of justice.
To be justiciable, the controversy must be definite and concrete, touching on the legal relations of parties having
adverse legal interests. It must be shown from the pleadings that there is an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof on the other. There must be an actual and substantial controversy and
not merely a theoretical question or issue. Further, the actual and substantial controversy must admit specific relief
through a conclusive decree and must not merely generate an advisory opinion based on hypothetical or conjectural
state of facts.73
Closely associated with the requirement of an actual or justiciable case or controversy is the ripening seeds for
adjudication. Ripeness for adjudication has a two-fold aspect: first, the fitness of the issues for judicial decision;
and second, the hardship to the parties entailed by withholding court consideration. The first aspect requires that the
issue must be purely legal and that the regulation subject of the case is a "final agency action." The second aspect
requires that the effects of the regulation must have been felt by the challenging parties in a concrete way.74
To stress, a constitutional question is ripe for adjudication when the challenged governmental act has a direct and
existing adverse effect on the individual challenging it.75 While a reasonable certainty of the occurrence of a
perceived threat to a constitutional interest may provide basis for a constitutional challenge, it is nevertheless still
required that there are sufficient facts to enable the Court to intelligently adjudicate the issues.76
In this regard, the Court's pronouncement in Philippine Association of Colleges and Universities (PACU) v. Secretary
of Education77 deserves reiteration:
It should be understandable, then, that this Court should be doubly reluctant to consider
petitioner's demand for avoidance of the law aforesaid, [e]specially where, as respondents
assert, petitioners suffered no wrong - nor allege any - from the enforcement of the criticized
statute.
It must be evident to any one that the power to declare a legislative enactment void is one
which the judge, conscious of the fallibility of human judgment, will shrink from exercising
in any case where he can conscientiously and with due regard to duty and official oath
decline the responsibility. x x x
When a law has been long treated as constitutional and important rights have become
dependent thereon, the Court may refuse to consider an attack on its validity. x x x
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As a general rule, the constitutionality of a statute will be passed on only if, and to the
extent that, it is directly and necessarily involved in a justiciable controversy and is
essential to the protection of the rights of the parties concerned. x x x
xxxx
It is an established principle that to entitle a private individual immediately in danger of
sustaining a direct injury as the result of that action and it is not sufficient that he has
merely a general [interest] to invoke the judicial power to determine the validity of
executive or legislative action he must show that he has sustained or [has an] interest
common to all members of the public. x x x
Courts will not pass upon the constitutionality of a law upon the complaint of one who fails
to show that he is injured by its operation. x x x
The power of courts to declare a law unconstitutional arises only when the interests of
litigants require the use of that judicial authority for their protection against actual
interference, a hypothetical threat being insufficient. x x x
Bona fide suit. - Judicial power is limited to the decision of actual cases and controversies.
The authority to pass on the validity of statutes is incidental to the decision of such cases
where conflicting claims under the Constitution and under a legislative act assailed as
contrary to the Constitution are raised. It is legitimate only in the last resort, and as
necessity in the determination of real, earnest, and vital controversy between litigants. x x
x
xxxx
An action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. x
x x Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest
therein, however intellectually solid the problem may be. This is [e]specially true where the
issues "reach constitutional dimensions, for then there comes into play regard for the court's
duty to avoid decision of constitutional issues unless avoidance becomes evasion." x x x
(Internal citations omitted; emphases supplied)
Ultimately, whether an actual case is present or not is determinative of whether the Court's hand should be stayed
when there is no adversarial setting and when the prerogatives of the co-equal branches of the Government should
instead be respected.
As ruled in Republic v. Roque: 78
A perusal of private respondents' petition for declaratory relief would show that they have failed to
demonstrate how they are left to sustain or are in immediate danger to sustain some direct injury as a
result of the enforcement of the assailed provisions of RA 9372. Not far removed from the factual milieu
in the Southern Hemisphere cases, private respondents only assert general interests as citizens, and
taxpayers and infractions which the government could prospectively commit if the enforcement of the
said law would remain untrammelled. As their petition would disclose, private respondents' fear of
prosecution was solely based on remarks of certain government officials which were addressed to the
general public. They, however, failed to show how these remarks tended towards any prosecutorial or
governmental action geared towards the implementation of RA 9372 against them. In other words,
there was no particular, real or imminent threat to any of them. As held in Southern Hemisphere:
Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is
not peculiar to RA 9372 since the exercise of any power granted by law may be abused.
Allegations of abuse must be anchored on real events before courts may step in to settle
actual controversies involving rights which are legally demandable and enforceable.
(Internal citations omitted; emphasis supplied)
Concededly, the Court had exercised the power of judicial review by the mere enactment of a law or approval of a
challenged action when such is seriously alleged to have infringed the Constitution. In Pimentel, Jr. v. Aguirre:79
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First, on prematurity. According to the Dissent, when "the conduct has not yet occurred and the
challenged construction has not yet been adopted by the agency charged with administering the
administrative order, the determination of the scope and constitutionality of the executive action in
advance of its immediate adverse effect involves too remote and abstract an inquiry for the proper
exercise of judicial function."
This is a rather novel theory - that people should await the implementing evil to befall on them before
they can question acts that are illegal or unconstitutional. Be it remembered that the real issue here is
whether the Constitution and the law are contravened by Section 4 of AO 372, not whether they are
violated by the acts implementing it. In the unanimous en banc case Tañada v. Angara, this Court held
that when an act of the legislative department is seriously alleged to have infringed the Constitution,
settling the controversy becomes the duty of this Court. By the mere enactment of the questioned law
or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy
even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty. Said the Court:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. Once a controversy as to the application or
interpretation of a constitutional provision is raised before this Court x x x, it becomes a
legal issue which the Court is bound by constitutional mandate to decide.
xxxx
As this Court has repeatedly and firmly emphasized in many cases, it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by
any officer, agency, instrumentality or department of the government.
In the same vein, the Court also held in Tatad v. Secretary of the Department of Energy:
x x x Judicial power includes not only the duty of the courts to settle actual controversies
involving rights which are legally demandable and enforceable, but also the duty to
determine whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. The
courts, as guardians of the Constitution, have the inherent authority to determine whether
a statute enacted by the legislature transcends the limit imposed by the fundamental law.
Where the statute violates the Constitution, it is not only the right but the duty of the
judiciary to declare such act unconstitutional and void.
By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws,
as in the present case, settling the dispute becomes the duty and the responsibility of the
courts. (Internal citations omitted; emphases supplied)
In Spouses Imbong v. Ochoa,80 the Court took cognizance of the petitions despite posing
a facial challenge against the entire law as the petitions seriously alleged that fundamental
rights have been violated by the assailed legislation:
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have
already taken effect and that budgetary measures to carry out the law have already been
passed, it is evident that the subject petitions present a justiciable controversy. As stated
earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute.
xxxx
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending
that the RH Law cannot be challenged "on its face" as it is not a speech regulating measure.
The Court is not persuaded.
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In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment. These include religious freedom, freedom of
the press, and the right of the people to peaceably assemble, and to petition the Government for a
redress of grievances. After all, the fundamental right to religious freedom, freedom of the press and
peaceful assembly are but component rights of the right to one's freedom of expression, as they are
modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained,
albeit with some modifications. While this Court has withheld the application of facial challenges
to strictly penal statutes, it has expanded its scope to cover statutes not only regulating free
speech, but also those involving religious freedom, and other fundamental rights. The underlying
reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its
expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government. Verily, the
framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the Court has authority to take cognizance
of these kindred petitions and to determine if the RH Law can indeed pass constitutional
scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case or
controversy, would diminish this Court as a reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment of the Filipino people. (Internal citations
omitted; emphases supplied)81
Likewise in Belgica v. Ochoa,82 the Court held that the requirement of an actual case or controversy is satisfied by
the antagonistic positions taken by the parties:
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the provisions allowing for their
utilization-such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as
amended by PD 1993, for the Presidential Social Fund - are currently existing and operational; hence,
there exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of
these public funds.
1(a). Scope of Judicial Review
To determine whether petitioners presented an actual case or controversy, or have seriously alleged that R.A. No.
7662 suffers from constitutional infirmities to trigger the Court's power of judicial review, resort must necessarily be
had to the pleadings filed.
Petitioners in G.R. No. 230642 allege that R.A. No. 7662 and the LEB issuances relative to the admission and
practice of law encroach upon the powers of the Court.83 It is their position that the powers given to the LEB are
directly related to the Court's powers.84 In particular, they argue that the LEB's power to adopt a system of
continuing legal education under Section 7(h) of R.A. No. 7662 falls within the authority of the Court.85 In their
Memorandum, they additionally argue that the LEB's powers to prescribe the qualifications and compensation of
faculty members under Section 7(c) and 7(e) of R.A. No. 7662, Sections 50-51 of LEBMO No. 1, and Resolution No.
2014-02 intrude into the Court's rule-making power relative to the practice of law.86 They also argue that the
PhiLSAT violates the academic freedom of law schools and the right to education.87 It is their contention that the
LEB is without power to impose sanctions.88 They also question the authority of the LEB Chairperson and Members
to act in a hold-over capacity.89
For their part, petitioners-in-intervention allege that the PhiLSAT requirement resulted to a reduced number of law
student enrollees for St. Thomas More School of Law and Business, Inc. and constrained said law school to admit
only students who passed the PhiLSAT which is against their policy of admitting students based on values.90 Their
co-petitioners are students who either applied for law school, failed to pass the PhiLSAT, or, were conditionally
enrolled. Thus, they argue that Section 7(e) of R.A. No. 7662 and the PhiLSAT violate the law school's academic
freedom.
Petitioners in G.R. No. 242954 allege that they are current law students who failed to pass and/or take the PhiLSAT,
and who are therefore threatened with the revocation of their conditional enrollment and stands to be barred from
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enrolling. Twelve of the 23 petitioners in G.R. No. 242954 were not allowed to enroll for failure to pass and/or take
the PhiLSAT.
It is their argument that the LEB's power under Section 7(e) of R.A. No. 7662 to prescribe minimum standards for
law admission, Section 7(g) to establish a law practice internship, Section 7(h) to adopt a system of continuing legal
education, and Section 3(a)(2) on the stated objective of legal education to increase awareness among members of
the legal profession of the needs of the poor, deprived and oppressed sectors of society usurp the Court's rule-
making powers concerning admission to the practice of law.91 In addition, they argue that the PhiLSAT issuances
violate academic freedom, and that the LEB is not authorized to revoke conditional enrollment nor is it authorized to
forfeit school fees and impose a ban enrollment which are penal sanctions violative of the due process clause. They
also argue that the classification of students to those who have passed or failed the PhiLSAT for purposes of
admission to law school is repugnant to the equal protection clause.
The petitions therefore raise an actual controversy insofar as they allege that R.A. No. 7662, specifically Section 2,
paragraph 2, Section 3(a)(2), Section 7(c), (e), (g), and (h) of R.A. No. 7662 infringe upon the Court's power to
promulgate rules concerning the practice of law and upon institutional academic freedom and the right to quality
education. Necessarily, a review of the LEB issuances when pertinent to these assailed provisions of R.A. No. 7662
shall also be undertaken.
2. Legal Standing
Inextricably linked with the actual case or controversy requirement is that the party presenting the justiciable issue
must have the standing to mount a challenge to the governmental act.
By jurisprudence, standing requires a personal and substantial interest in the case such that the petitioner has
sustained, or will sustain, direct injury as a result of the violation of its rights,92 thus:
Legal standing or locus standi is the "right of appearance in a court of justice on a given question." To
possess legal standing, parties must show "a personal and substantial interest in the case such that
[they have] sustained or will sustain direct injury as a result of the governmental act that is being
challenged." The requirement of direct injury guarantees that the party who brings suit has such
personal stake in the outcome of the controversy and, in effect, assures "that concrete adverseness
which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions."93 (Emphasis supplied)
The rule on standing admits of recognized exceptions: the over breadth doctrine, taxpayer suits, third-party standing
and the doctrine of transcendental importance.94
Petitioners-in-intervention Caballero, Castardo, Bringas, Federe and Matutino, being graduates of a four-year
college course and applicants as first year law students, as well as petitioners Abayata, Vasquez, Ilustrismo, Salaño,
Guzman and Odias, as law students who failed to pass the PhiLSAT and were denied admission to law school for
the academic year 2018 to 2019, and petitioners Dela Cruz, Suico, Pescadero, Dela Paz, Queniahan, Mejos, Daño,
Adolfo, Atig, Lumayag, Lagera, Francisco, Dandan, Dela Peña, Villamor, Llorico and Santamaria, being law students
who were conditionally enrolled, possess the requisite standing to challenge the constitutionality of Section 7(e) of
R.A. No. 7662 and the implementing LEB issuances, as they were, in fact, required to take the PhiLSAT, or to
comply with the terms of the conditional enrollment and failing which, were denied admission as regular students to
law school.
Petitioner-in-intervention St. Thomas More School of Law and Business, Inc., likewise sufficiently alleges injury that
it has sustained in the form of reduced number of enrollees due to the PhiLSAT requirement and the curtailment of
its discretion on who to admit in its law school. Under the specific and concrete facts available in this case, these
petitioners have demonstrated that they were, or tend to be directly and substantially, injured.
Meanwhile, petitioners Pimentel, Comafay, Gorospe, Sandoval, Loanzon, Perez, Cacho, Espaldon, Albano, Siazon,
Artugue, Lacsina, Liu, Buenviaje, Nicolas, Tolentino, and Gruyal; and petitioners-in intervention Rapista, Rapista-
Tan, Tan, Enterina and Villarico commonly anchor their standing to challenge R.A. No. 7662 and the PhiLSAT as
citizens.
Standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of
transcendental importance or when paramount public interest is involved.95
Legal standing may be extended to petitioners for having raised a "constitutional issue of critical
significance."96 Without a doubt, the delineation of the Court's rule-making power vis-a-vis the supervision and
regulation of legal education and the determination of the reach of the State's supervisory and regulatory power in
the context of the guarantees of academic freedom and the right to education are novel issues with far-­reaching
implications that deserve the Court's immediate attention. In taking cognizance of the instant petitions, the Court is
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merely exercising its power to promulgate rules towards the end that constitutional rights are protected and
enforced.97
Now, to the core substantive issues.
II.
Substantive Issues
A.
Jurisdiction Over Legal Education
Petitioners in G.R. No. 230642 argue that the Court's power to promulgate rules concerning the admission to the
practice of law necessarily includes the power to do things related to the practice of law, including the power to
prescribe the requirements for admission to the study of law. In support, they point to Sections 698 and 16,99 Rule
138 of the Rules of Court. They contend that the Congress cannot create an administrative body, like the LEB, that
exercises this rule-making power of the Court. They emphasize that the LEB belongs to the Executive department,
and, as such, is not linked or accountable to the Court nor placed under the Court's regulation and supervision.
For their part, petitioners in G.R. No. 242954 maintain that the Court exercises authority over the legal profession
which includes the admission to the practice of law, to the continuing requirements for and discipline of
lawyers.100 According to them, the rule-making power of the Court is plenary in all cases regarding the admission to
and supervision of the practice of law. They argue that the Court's power to admit members to the practice of law
extends to admission to legal education because the latter is a preparatory process to the application for admission
to the legal profession, which "residual power" of the Court can be inferred from Sections 5101 and 6, Rule 138 of the
Rules of Court. They also emphasize that under Sections 1102 and 2103 of Rule 138-A, non-lawyers are allowed to
have limited practice of law and are held to answer by the Court under the same rules on privileged communication
and standard of conduct pursuant to Sections 3104 and 4105 of Rule 138-A.106
Contrary to petitioner's claims, the Court has no primary and direct jurisdiction over legal education. Neither the
history of the Philippine legal education nor the Rules of Court invoked by petitioners support their argument. The
supervision and regulation of legal education is an Executive function.
1 Regulation and supervision of legal education had
been historically and consistently exercised
by the political departments
Legal education in the Philippines was institutionalized in 1734, with the establishment of the Faculty of Civil Law in
the University of Santo Tomas with Spanish as the medium of instruction. Its curriculum was identical to that
adopted during the time in the universities in Europe107 and included subjects on Civil Law, Canon Law,
ecclesiastical discipline and elements of Natural Law.108
In 1901, Act No. 74 was passed centralizing the public school system, and establishing the Department of Public
Instruction headed by the General Superintendent.109 The archipelago was then divided into school divisions and
districts for effective management of the school system. It was through Act No. 74 that a Trade School110 and a
Normal School111 in Manila and a School of Agriculture in Negros were established.112
In 1908, the legislature approved Act No. 1870 which created the University of the Philippines (UP). However,
English law courses were not offered until 1910 when the Educational Department Committee of the Young Men's
Christian Association (YMCA), through the efforts of Justice George Malcolm, offered law courses in the English
language. In 1911, UP adopted these classes by formally establishing its College of Law,113 with its first graduates
being students who studied at YMCA.114 The curriculum adopted by the UP College of Law became the model of the
legal education curriculum of the other law schools in the country.115
Private schools were formally regulated in 1917 with the passage of Act No. 2706116 which made obligatory the
recognition and inspection of private schools and colleges by the Secretary of Public Instruction, so as to maintain a
standard of efficiency in all private schools and colleges117 in the country. As such, the Secretary of Public Instruction
was authorized to inspect schools and colleges to determine efficiency of instruction and to make necessary
regulations. Likewise, under Act No. 2706, the Secretary of Public Instruction was specifically authorized to prepare
and publish, from time to time, in pamphlet form, the minimum standards required of law schools and other schools
giving instruction of a technical or professional character.118
In 1924, a survey of the Philippine education and of all educational institutions, facilities and agencies was
conducted through Act No. 3162, which created the Board of Educational Survey. Among the factual findings of the
survey was that schools at that time were allowed to operate with almost no supervision at all. This led to the
conclusion that a great majority of schools from primary grade to the university are money-making devices of
persons who organize and administer them. Thus, it was recommended that some board of control be· organized
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under legislative control to supervise their administration.119 It was further recommended that legislation be enacted
to prohibit the opening of any school without the permission of the Secretary of Public Instruction. The grant of the
permission was, in turn, predicated upon a showing that the school is compliant with the proper standards as to the
physical structure, library and laboratory facilities, ratio of student to teacher and the qualifications of the teachers.120
Consistent with these statutory precursors, the 1935 Constitution expressed in no uncertain terms that "[a]ll
educational institutions shall be under the supervision and subject to regulation by the State."121
This was followed by several other statutes such as the Commonwealth Act No. 578122 which vests upon teachers,
professors, and persons charged with the supervision of public or duly-recognized private schools, colleges and
universities the status of "persons in authority" and Republic Act No. 139123 which created the Board of Textbooks,
mandating all public schools to use only the books approved by the Board and allowing all private schools to use
textbooks of their choice, provided it is not against the law or public policy or offensive to dignity.124
In 1947, the Department of Instruction was changed to the Department of Education.125 During this period, the
regulation and supervision of public and private schools belonged to the Bureau of Public and Private Schools. The
regulation of law schools in particular was undertaken by the Bureau of Private Schools through a special consultant
who acted as a supervisor of the law schools and as a national coordinator of the law deans.126
The Department of Education, through its Bureau of Private Schools, issued a Manual of Instructions for Private
Schools which contained the rules and regulations pertaining to the qualifications of the faculty and deans, faculty
load and library holdings of private learning institutions.127 Meantime, a Board of National Education was
created128 with the task of formulating, implementing and enforcing general educational policies and coordinating the
offerings and functions of all educational institutions. The Board of National Education was later renamed as the
National Board of Education.129 In 1972, the Department of Education became the Department of Education and
Culture,130 and was later on renamed as the Ministry of Education and Culture in 1978.131
Meanwhile, the 1973 Constitution remained consistent in mandating that all educational institutions shall be under
the supervision of and subject to regulation by the State.132
With the passage of Batas Pambansa Bilang 232133 (B.P. Blg. 232) or the Education Act of 1982, the regulatory rules
on both formal and non­-formal systems in public and private schools in all levels of the entire educational system
were codified. The National Board of Education was abolished, and instead, a Ministry of Education, Culture and
Sports (MECS) was organized to supervise and regulate educational institutions. Part and parcel of the MECS'
authority to supervise and regulate educational institutions is its authority to recognize or accredit educational
institutions of all levels.134
Accordingly, the MECS was given the authority over public and private institutions of higher education, as well as
degree-granting programs, in all post-secondary public and private educational institutions.135 In particular, a Board
of Higher Education136 was established as an advisory body to the Minister of Education, Culture and Sports with
the functions of making policy recommendations on the planning and management of the integrated system of
higher education and recommending steps to improve the governance of the higher education system. Apart from
the Board of Higher Education, a Bureau of Higher Education was also established to formulate and evaluate
programs and educational standards for higher education137 and to assist the Board of Higher Education. Law
schools were placed, under the jurisdiction of the Bureau of Higher Education.138
The MECS later became the DECS in 1987 under Executive Order No. 117139 (E.O. No. 117). Nevertheless, the
power of the MECS to supervise all educational institutions remained unchanged.140
The Administrative Code141 also states that it shall be the State that shall protect and promote the right of all citizens
to quality education at all levels, and shall take appropriate steps to make such education accessible to all; and that
the DECS shall be primarily responsible for the formulation, planning, implementation, and coordination of the
policies, plans, programs and projects in the areas of formal and non-formal education. The Administrative Code
also empowered the Board of Higher Education to create technical panels of experts in the various disciplines
including law, to undertake curricula development.142 As will be discussed hereunder, the 1987 Constitution
crystallized the power of the State to supervise and regulate all educational institutions.143
2 DECS Order No. 27-1989 was
the precursor of R.A. No. 7662
Pursuant to its mandate under B.P. Blg. 232, the DECS promulgated DECS Order No. 27, Series of 1989 (DECS
Order No. 27-1989),144 in close coordination with the Philippine Association of Law Schools, the Philippine
Association of Law Professors and the Bureau of Higher Education. DECS Order No. 27-1989 specifically outlined
the policies and standards for legal education, and superseded all existing policies and standards related to legal
education. These policies were made applicable beginning school year 1989 to 1990.
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"Legal education" was defined in DECS Order No. 27-1989 as an educational program including a clinical program
appropriate and essential in the understanding and application of law and the administration of justice. It is
professional education after completion of a required pre-legal education at the college level. For state colleges and
universities, the operation of their law schools was to depend on their respective charters, and for private colleges
and universities, by the rules and regulations issued by the DECS. Nevertheless, it was made clear under DECS
Order No. 27-1989 that the administration of a law school shall be governed primarily by the law school's own
policies and the provisions thereof apply only suppletorily.145
Likewise, in generally permissive terms, DECS Order No. 27-1989 prescribed the preferred qualifications and
functions of a law dean, as well as the preferred qualifications, conditions of employment and teaching load of law
faculty members. It also prescribed the general inclusions to the law curriculum, but gave the law schools the
prerogative to design its own curriculum. The DECS also drew a model law curriculum, thus, revising the 122-unit
curriculum prescribed in 1946 by the Office of Private Education, as well as the 134-unit curriculum prescribed in
1963. The law schools were also given the option to maintain a legal aid clinic as part of its law curriculum. It also
prescribed the need for law schools to have relevant library resources. Applicants for a law course are required to
comply with the specific requirements for admission by the Bureau of Higher Education and the Court.
Such was the state of the regulation of legal education until the enactment of R.A. No. 7662 in 1993. In 1994, R.A.
No. 7722146 was passed creating the Commission on Higher Education (CHED) tasked to supervise tertiary degree
programs. Except for the regulation and supervision of law schools which was to be undertaken by the LEB under
R.A. No. 7662, the structure of DECS as embodied in E.O. No. 117 remained practically unchanged.
Due to the fact that R.A. No. 7662 was yet to be implemented with the organization of the LEB, the CHED,
meanwhile, assumed the function of supervising and regulating law schools. For this purpose, the CHED constituted
a Technical Panel for Legal Education which came up with a Revised Policies and Standards for Legal Education,
which, however, was unpublished.
3 Legal education is a mere
composite of the educational system
As recounted, the historical development of statutes on education unerringly reflects the consistent exercise by the
political departments of the power to supervise and regulate all levels and areas of education, including legal
education.
Legal education is but a composite of the entire Philippine education system. It is perhaps unique because it is a
specialized area of study. This peculiarity, however, is not reason in itself to demarcate legal education and withdraw
it from the regulatory and supervisory powers of the political branches.
Notwithstanding, petitioners maintain that legal education, owing to its specialized "legal" nature and being
preparatory to the practice of law, should fall within the regulation and supervision of the Court itself. Petitioners in
G.R. No. 242954 went as far as professing that they are not against the creation of an administrative body that will
supervise and regulate law schools, only that such body should be placed under the Court's supervision and control.
Two principal reasons militate against such proposition:
First, it assumes that the Court, in fact, possesses the power to supervise and regulate legal education as a
necessary consequence of its power to regulate the admission to the practice of law. This assumption, apart from
being manifestly contrary to the above-recounted history of legal education in the Philippines, is likewise devoid of
legal anchorage.
Second, the Court exercises only judicial functions and it cannot, and must not, arrogate upon itself a power that is
not constitutionally vested to it, lest the Court itself violates the doctrine of separation of powers. For the Court to
void R.A. No. 7662 and thereafter, to form a body that regulates legal education and place it under its supervision
and control, as what petitioners suggest, is to demonstrate a highly improper form of judicial activism.
4 Court's exclusive rule-making
power covers the practice of
law and not the study of law
The Constitution lays down the powers which the Court can exercise. Among these is the power to promulgate rules
concerning admission to the practice of law.
The rule-making power of the Supreme Court had been uniformly granted under the 1935, the 1973 and the 1987
Constitutions. The complexion of the rule-making power, however, changes with the promulgation of these organic
laws.
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Under the 1935 Constitution, existing laws on pleading, practice and procedure were repealed and were instead
converted as the Rules of Court which the Court can alter and modify. The Congress, on the other hand, was given
the power to repeal, alter or supplement the rules on pleading, practice and procedure, and the admission to the
practice of law promulgated by the Court.147
This power to promulgate rules concerning pleading, practice and procedure, and admission to the practice of law is
in fact zealously guarded by the Court.
Thus, in Philippine Lawyers Association v. Agrava,148 the Court asserted its "exclusive" and constitutional power with
respect to the admission to the practice of law and when the act falls within the term "practice of law," the Rules of
Court govern.149
In In Re: Petition of A.E. Garcia,150 the Court withheld from the executive the power to modify the laws and
regulations governing admission to the practice of law as the prerogative to promulgate rules for admission to the
practice of law belongs to the Court and the power to repeal, alter, or supplement such rules is reserved only to the
Congress.
Even then, the character of the power of the Congress to repeal, alter, or supplement the rules concerning pleading,
practice, and procedure, and the admission to the practice of law under the 1935 Constitution was held not to be
absolute and that any law passed by the Congress on the matter is merely permissive, being that the power
concerning admission to the practice of law is primarily a judicial function.
The 1973 Constitution is no less certain in reiterating the Court's power to promulgate rules concerning pleading,
practice, and procedure in all courts and the admission to the practice of law. As observed in Echegaray v. Secretary
of Justice,151 the 1973 Constitution further strengthened the independence of the judiciary by giving it the additional
power to promulgate rules governing the integration of the Bar.152
The ultimate power to promulgate rules on pleading, practice, and procedure, the admission to the practice of law,
and the integration of the Bar remains to be with the Court under the 1973 Constitution even when the power of the
Batasang Pambansa to pass laws of permissive and corrective character repealing, altering, or supplementing such
rules was retained.
The 1987 Constitution departed from the 1935 and the 1973 organic laws in the sense that it took away from the
Congress the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the
admission to the practice of law, and the integration of the Bar and therefore vests exclusively and beyond doubt,
the power to promulgate such rules to the Court, thereby supporting a "stronger and more independent judiciary."153
While the 1935 and 1973 Constitutions "textualized a power-sharing scheme" between the legislature and the Court
in the enactment of judicial rules,154 the 1987 Constitution "textually altered the power-sharing scheme" by deleting
the Congress' subsidiary and corrective power.155
Accordingly, the Court's exclusive power of admission to the Bar has been interpreted as vesting upon the Court the
authority to define the practice of law,156 to determine who will be admitted to the practice of law,157 to hold in
contempt any person found to be engaged in unauthorized practice of law,158 and to exercise corollary disciplinary
authority over members of the Bar.159
The act of admitting, suspending, disbarring and reinstating lawyers in the practice of law is a judicial function
because it requires "(1) previously established rules and principles; (2) concrete facts, whether past or present,
affecting determinate individuals; and (3) decision as to whether these facts are governed by the rules and
principles."160
Petitioners readily acknowledge that legal education or the study of law is not the practice of law, the former being
merely preparatory to the latter. In fact, the practice of law has a settled jurisprudential meaning:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and social proceedings, the management
of such actions and proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, all advice to clients, and all action taken for them in matters connected with the
law corporation services, assessment and condemnation services contemplating an appearance before
a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice as the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the legal
effect of facts and conditions.
Practice of law under modern conditions consists in no small part of work performed outside of any
court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving
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of legal advice on a large variety of subjects, and the preparation and execution of legal instruments
covering an extensive field of business and trust relations and other affairs. Although these transactions
may have no direct connection with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide experience with men and
affairs, and great capacity for adaptation to difficult and complex situations. These customary functions
of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts.
No valid distinction, so far as concerns the question set forth in the order, can be drawn between that
part of the work of the lawyer which involved appearance in court and that part which involves advice
and drafting of instruments in his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of adequate learning and skill, of
sound moral character, and acting at all times under the heavy trust obligations to clients which rests
upon all attorneys.161 (Internal citations omitted)
The definition of the practice of law, no matter how broad, cannot be further enlarged as to cover the study of law.
5 The Court exercises judicial power only
Section 12, Article VIII of the 1987 Constitution clearly provides that "[t]he Members of the Supreme Court and of
other courts established by law shall not be designated to any agency performing quasi-judicial or administrative
functions." The Court exercises judicial power only and should not assume any duty alien to its judicial functions, the
basic postulate being the separation of powers. As early as Manila Electric Co. v. Pasay Transportation Co.,162 the
Court already stressed:
The Supreme Court of the Philippine Islands represents one of the three divisions of power in our
government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just
as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any
other department of the government, so should it as strictly confine its own sphere of influence to the
powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its
members should not and cannot be required to exercise any power or to perform any trust or to
assume any duty not pertaining to or connected with the administering of judicial functions. (Emphases
supplied)
Neither may the regulation and supervision of legal education be justified as an exercise of the Court's "residual"
power. A power is residual if it does not belong to either of the two co-equal branches and which the remaining
branch can, thus, exercise consistent with its functions. Regulation and supervision of legal education is primarily
exercised by the Legislative and implemented by the Executive, thus, it cannot be claimed by the judiciary.
It is with studied restraint that the Court abstains from exercising a power that is not strictly judicial, or that which is
not expressly granted to it by the Constitution.163 This judicial abstention is neither avoidance nor dereliction - there
is simply no basis for the Court to supervise and regulate legal education.
Court supervision over legal education is nevertheless urged164 to the same extent as the Court administers,
supervises and controls the Philippine Judicial Academy (PHILJA).165 The parallelism is mislaid because the PHILJA
is intended for judicial education.166 It particularly serves as the "training school for justices, judges, court personnel,
lawyers and aspirants to judicial posts."167 Court supervision over judicial education is but consistent with the Court's
power of supervision over all courts and the personnel thereof.168
Still, petitioners insist that the Court actually regulated legal education through Sections 5, 6, and 16 of Rule 138
and Sections 1, 2, 3, and 4 of Rule 138-A of the 1997 Rules of Court. On the contrary, the Rules of Court do not
intend nor provide for direct and actual Court regulation over legal education. At most, the Rules of Court are
reflective of the inevitable relationship between legal education and the admissions to the bar.
6 The Rules of Court do not support
the argument that the Court directly
and actually regulates legal education
While the power of the Court to promulgate rules concerning admission to the practice of law exists under the 1935
Constitution and reiterated under the 1973 and 1987 Constitutions, the Court has not promulgated any rule that
directly and actually regulates legal education.
Instead, the 1964 Rules of Court concerned only the practice of law, admission to the bar, admission to the bar
examination, bar examinations, and the duties, rights and conduct of attorneys. The 1997 Rules of Court is no
different as it contained only the rules on attorneys and admission to the bar under Rule 138, the law student
practice rule under Rule 138-A, the integrated bar in Rule 139-A and disbarment and discipline of attorneys in Rule
139-B.169
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In the exercise of its power to promulgate rules concerning the admission to the practice of law, the Court has
prescribed the subjects covered by, as well as the qualifications of candidates to the bar examinations. Only those
bar examination candidates who are found to have obtained a passing grade are admitted to the bar and licensed to
practice law.170 The regulation of the admission to the practice of law goes hand in hand with the commitment of the
Court and the members of the Philippine Bar to maintain a high standard for the legal profession. To ensure that the
legal profession is maintained at a high standard, only those who are known to be honest, possess good moral
character, and show proficiency in and knowledge of the law by the standard set by the Court by passing the bar
examinations honestly and in the regular and usual manner are admitted to the practice of law.171
Thus, under the 1997 Rules of Court, admission to the bar requires: (1) furnishing satisfactory proof of educational,
moral, and other qualifications; (2) passing the bar examinations;172 and (3) taking the lawyer's oath,173 signing the
roll of attorneys and receiving from the clerk of court a certificate of the license to practice.174 An applicant for
admission to the bar must have these qualifications: (1) must be a citizen of the Philippines; (2) must at least be 21
years of age; (3) must be of good moral character; (4) must be a resident of the Philippines; (5) must produce
satisfactory evidence of good moral character; and (6) no charges against the applicant, involving moral turpitude,
have been filed or are pending in any court in the Philippines.175 It is beyond argument that these are the requisites
and qualifications for admission to the practice of law and not for admission to the study of law.
In turn, to be admitted to the bar examinations, an applicant must first meet the core academic qualifications
prescribed under the Rules of Court.
6(a). Sections 5, 6, and 16, Rule 138
Section 5 provides that the applicant should have studied law for four years and have successfully completed all the
prescribed courses. This section was amended by Bar Matter No. 1153,176 to require applicants to "successfully
[complete] all the prescribed courses for the degree of Bachelor of Laws or its equivalent, in a law school or
university officially recognized by the Philippine Government, or by the proper authority in foreign jurisdiction where
the degree has been granted." Bar Matter No. 1153 further provides that a Filipino citizen who is a graduate of a
foreign law school shall be allowed to take the bar examinations only upon the submission to the Court of the
required certifications.
In addition to the core courses of civil law, commercial law, remedial law, criminal law, public and private
international law, political law, labor and social legislation, medical jurisprudence, taxation, and legal ethics, Section
5 was further amended by A.M. No. 19-03-24-SC or the Revised Law Student Practice Rule dated June 25, 2019 to
include Clinical Legal Education as a core course that must be completed by an applicant to the bar examinations.
Notably, Section 5, Rule 138 of the Rules of Court, as amended, is not directed to law schools, but to those who
would like to take the bar examinations and enumerates the academic competencies required of them. The Court
does not impose upon law schools what courses to teach, or the degree to grant, but prescribes only the core
academic courses which it finds essential for an applicant to be admitted to the bar. Law schools enjoy the
autonomy to teach or not to teach these courses. In fact, the Court even extends recognition to a degree of Bachelor
of Laws or its equivalent obtained abroad or that granted by a foreign law school for purposes of qualifying to take
the Philippine Bar Examinations, subject only to the submission of the required certifications. Section 5 could not
therefore be interpreted as an exercise of the Court's regulatory or supervisory power over legal education since, for
obvious reasons, its reach could not have possibly be extended to legal education in foreign jurisdictions.
In similar fashion, Section 6, Rule 138 of the Rules of Court requires that an applicant to the bar examinations must
have completed a four-year high school course and a bachelor's degree in arts or sciences. Again, this requirement
is imposed upon the applicant to the bar examinations and not to law schools. These requirements are merely
consistent with the nature of a law degree granted in the Philippines which is a professional, as well as a post-
baccalaureate degree.
It is a reality that the Rules of Court, in prescribing the qualifications in order to take the bar examinations, had
placed a considerable constraint on the courses offered by law schools. Adjustments in the curriculum, for instance,
is a compromise which law schools apparently are willing to take in order to elevate its chances of graduating future
bar examinees. It is in this regard that the relationship between legal education and admissions to the bar becomes
unmistakable. This, however, does not mean that the Court has or exercises jurisdiction over legal education.
Compliance by law schools with the prescribed core courses is but a recognition of the Court's exclusive jurisdiction
over admissions to the practice of law - that no person shall be allowed to take the bar examinations and thereafter,
be admitted to the Philippine Bar without having taken and completed the required core courses.
Section 16, Rule 138 of the Rules of Court, on the other hand, provides that those who fail the bar examinations for
three or more times must take a refresher course. Similarly, this is a requirement imposed upon the applicant. The
Court does not impose that a law school should absolutely include in its curriculum a refresher course.
6(b). Revised Law Student Practice Rule
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Neither does Rule 138-A of the Rules of Court as amended by A.M. No. 19-03-24-SC on law student practice
manifest the Court's exercise of supervision or regulation over legal education. The three-fold rationale of the law
student practice rule is as follows:
1. [T]o ensure that there will be no miscarriage of justice as a result of incompetence or inexperience of law
students, who, not having as yet passed the test of professional competence, are presumably not fully
equipped to act [as] counsels on their own;
2. [T]o provide a mechanism by which the accredited law school clinic may be able to protect itself from any
potential vicarious liability arising from some culpable action by their law students; and
3. [T]o ensure consistency with the fundamental principle that no person is allowed to practice a particular
profession without possessing the qualifications, particularly a license, as required by law.177
Consistently, the Revised Law Student Practice Rule is primordially intended to ensure access to justice of the
marginalized sectors and to regulate the law student practitioner's limited practice of law pursuant to the Court's
power to promulgate rules on pleading, practice, and procedure in all courts, the Integrated Bar, and legal
assistance to the underprivileged.
In allowing the law student and in governing the conduct of the law student practitioner, what the Court regulates
and supervises is not legal education, but the appearance and conduct of a law student before any trial court,
tribunal, board, or officer, to represent indigent clients of the legal clinic - an activity rightfully falling under the
definition of practice of law. Inasmuch as the law student is permitted to act for the legal clinic and thereby to
practice law, it is but proper that the Court exercise regulation and supervision over the law student practitioner.
Necessarily, the Court has the power to allow their appearance and plead their case, and hereafter, to regulate their
actions.
In all, the Rules of Court do not support petitioners' argument that the Court regulates and supervises legal
education. To reiterate, the Rules of Court are directed not towards legal education or law schools, but towards
applicants for admission to the bar and applicants for admission to the bar examinations - consistent with the Court's
power to promulgate rules concerning admission to the practice of law, the same being fundamentally a judicial
function.
Having, thus, established that the regulation and supervision of legal education do not fall within the competence of
the Court and is, instead, a power exercised by the political departments, the Court now proceeds to determine the
extent of such police power in relation to legal education.
B.
Reasonable Supervision and Regulation of Legal
Education as an Exercise of Police Power
The term police power was first used178 in jurisprudence in 1824 in Gibbons v. Ogden179 where the U.S. Supreme
Court, through Chief Justice Marshall, held that the regulation of navigation by steamboat operators for purposes of
interstate commerce was a power reserved to and exercised by the Congress, thus, negating state laws interfering
with the exercise of that power. Likewise often cited is Commonwealth v. Alger180 which defined police power as "the
power vested in legislature by the [C]onstitution, to make, ordain, and establish all manner of wholesome and
reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the [C]onstitution, as
they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same."
Closer to home, early Philippine jurisprudence pertain to police power as the power to promote the general welfare
and public interest;181 to enact such laws in relation to persons and property as may promote public health, public
morals, public safety and the general welfare of each inhabitant;182 to preserve public order and to prevent offenses
against the state and to establish for the intercourse of [citizens] those rules of good manners and good
neighborhood calculated to prevent conflict of rights.183
In Ermita-Malate Hotel and Motel [Operators] Association, Inc. v. City Mayor of Manila,184 the nature and scope of
police power was reaffirmed as embracing the power to prescribe regulations to promote the health, morals,
education, good order, safety, or the general welfare of the people. It is negatively defined as the authority to enact
legislation that may interfere with personal liberty or property in order to promote the general welfare185 and the
State's inherent power to prohibit all that is hurtful to the comfort, safety, and welfare of society,186 and flows from the
recognition that salus populi est suprema lex.187 It is described as the most essential, insistent and illimitable188 of
the powers of the State. It is co-existent with the concept of the State and is the very foundation and one of its
cornerstones,189 and therefore even precedes the written Constitution.
1 Enactment of education laws
is an exercise of police power
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The State has a "high responsibility for [the] education of its citizens"190 and has an interest in prescribing
regulations to promote the education, and consequently, the general welfare of the people.191 The regulation or
administration of educational institutions, especially on the tertiary level, is invested with public interest.192 Thus, the
enactment of education laws, implementing rules and regulations and issuances of government agencies is an
exercise of the State's police power.193
As a professional educational program, legal education properly falls within the supervisory and regulatory
competency of the State. The legislative history of the Philippine legal educational system earlier recounted evinces
that the State, through statutes enacted by the Congress and administrative regulations issued by the Executive,
consistently exercises police power over legal education.
The exercise of such police power, however, is not absolute.
2 Supervisory and regulatory
exercise, not control
The 1935194 and 1973195 Constitutions plainly provide that all educational institutions shall be under the supervision
of and subject to regulation by the State. These reflect in express terms the police power already inherently
possessed by the State. Making express an already inherent power is not a superfluous exercise, but is rather
consequential in case of conflict between express powers. As elucidated in Philippine Association of Colleges and
Universities:196
In this connection we do not share the belief that [now Article XIV, Section 4(1)] has added new power
to what the State inherently possesses by virtue of the police power. An express power is necessarily
more extensive than a mere implied power. For instance, if there is conflict between an express
individual right and the express power to control private education it cannot off-hand be said that the
latter must yield to the former - conflict of two express powers. But if the power to control education is
merely implied from the police power, it is feasible to uphold the express individual right[.] x x x
The 1987 Constitution under Section 4(1), Article XIV, even when expressly recognizing the complementary roles
played by the public and private schools in education, reiterated that these educational institutions are subject to
State supervision and regulation, thus:
SEC. 4.(1) The State recognizes the complementary roles of public and private institutions in the
educational system and shall exercise reasonable supervision and regulation of all educational
institutions. (Emphasis supplied)
As much as possible, the words of the Constitution are understood in the sense they have in common use. What it
says according to the text of the provision to be construed compels acceptance and negates the power of the courts
to alter it, based on the postulate that the framers and the people mean what they say.197
As worded, the Constitution recognizes that the role of public and private schools in education is complementary in
relation to each other, and primordial in relation to the State as the latter is only empowered to supervise and
regulate. The exercise of police power in relation to education must be compliant with the normative content of
Section 4(1), Article XIV of the 1987 Constitution.198 The exercise of police power over education must merely be
supervisory and regulatory.
The State's supervisory and regulatory power is an auxiliary power in relation to educational institutions, be it a
basic, secondary or higher education. This must necessarily be so since the right and duty to educate, being part
and parcel of youth-rearing, do not inure to the State at the first instance. Rather, it belongs essentially and naturally
to the parents,199 which right and duty they surrender by delegation to the educational institutions. As held
in Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City,200 the right and duty of parents to rear their
children being a natural and primary right connotes the parents' superior right over the State in the upbringing of
their children. The responsibility to educate lies with the parents and guardians as an inherent right,201 over which
the State assumes a supportive role.202 Withholding from the State the unqualified power to control education also
serves a practical purpose - it allows for a degree of flexibility and diversity essential to the very reason of education
to rear socially responsible and morally upright youth and to enable them, also, to come in contact with challenging
ideas.
In this sense, when the Constitution gives the State supervisory power, it is understood that what it enjoys is a
supportive power, that is, the power of oversight203 over all educational institutions. It includes the authority to check,
but not to interfere.
In addition to supervision, educational institutions are likewise made subject to State regulation. Dispensing a
regulatory function means imposing requirements, setting conditions, prescribing restrictions, and ensuring
compliance. In this regard, the political departments are vested with ample authority to set minimum standards to be
met by all educational institutions.204
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Starkly withheld from the State is the power to control educational institutions. Consequently, in no way should
supervision and regulation be equated to State control. It is interesting to note that even when a suggestion had
been made during the drafting of the 1935 Constitution that educational institutions should be made "subject to the
laws of the State," the proponent of the amendment had no totalitarian intentions,205 and the proposal was not
meant to curtail the liberty of teaching,206 thus:
I think it only insures the efficient functioning of educational work and does not limit liberty of administrators of
schools. The gentleman will notice that my amendment does not tend to curtail which he used in asking the question
[sic]. I want the power of the State to be supervisory as supervision in educational parlance should be of the
constructive type in the matter of help rather than obstruction.207 (Emphasis supplied)
3 Reasonable exercise
To be valid, the supervision and regulation of legal education as an exercise of police power must be reasonable
and not repugnant to the Constitution.208
As held in Social Justice Society v. Atienza, Jr.,209 the exercise of police power, in order to be valid, must be
compliant with substantive due process:
[T]he State, x x x may be considered as having properly exercised [its] police power only if the following
requisites are met: (1) the interests of the public generally, as distinguished from those of a particular
class, require its exercise[;] and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be
a concurrence of a lawful subject and a lawful method. (Emphases supplied)
In Philippine Association of Service Exporters, Inc. v. Drilon,210 the Court held that:
Notwithstanding its. extensive sweep, police power is not without its own limitations. For all its
awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that
event, it defeats the purpose for which it is exercised, that is, to advance the public good. (Emphasis
supplied)
Obviating any inference that the power to regulate means the power to control, the 1987 Constitution added the
word "reasonable" before the phrase supervision and regulation.
The import of the word "reasonable" was elaborated in Council of Teachers,211 as follows:
x x x Section 4(1) was a provision added by the Framers to crystallize the State's recognition of the
importance of the role that the private sector plays in the quality of the Philippine education system.
Despite this recognition, the Framers added the second portion of Section 41 to emphasize that the
State, in the exercise of its police power, still possesses the power of supervision over private schools.
The Framers were explicit, however, that this supervision refers to external governance, as opposed
to internal governance which was reserved to the respective school boards, thus:
Madam President, Section 2(b) introduces four changes: one, the addition of the word
"reasonable" before the phrase "supervision and regulation"; two, the addition of the word
"quality" before the word "education"; three, the change of the wordings in the 1973
Constitution referring to a system of education, requiring the same to be relevant to the
goals of national development, to the present expression of "relevant to the needs of the
people and society"; and four, the explanation of the meaning of the expression
"integrated system of education" by defining the same as the recognition and
strengthening of the complementary roles of public and private educational institutions as
separate but integral parts of the total Philippine educational system.
When we speak of State supervision and regulation, we refer to the external governance
of educational institutions, particularly private educational institutions as distinguished
from the internal governance by their respective boards of directors or trustees and their
administrative officials. Even without a provision on external governance, the State would
still have the inherent right to regulate educational institutions through the exercise of its
police power. We have thought it advisable to restate the supervisory and regulatory
functions of the State provided in the 1935 and 1973 Constitutions with the addition of the
word "reasonable." We found it necessary to add the word "reasonable" because of
an obiter dictum of our Supreme Court in a decision in the case of Philippine Association
of Colleges and Universities vs. The Secretary of Education and the Board of Textbooks in
1955. In that case, the court said, and I quote:
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It is enough to point out that local educators and writers think the Constitution
provides for control of education by the State.
The Solicitor General cites many authorities to show that the power to
regulate means power to control, and quotes from the proceedings of the
Constitutional Convention to prove that State control of private education was
intended by organic law.
The addition, therefore, of the word 'reasonable' is meant to underscore the sense of the
committee, that when the Constitution speaks of State supervision and regulation, it does
not in any way mean control. We refer only to the power of the State to provide regulations
and to see to it that these regulations are duly followed and implemented. It does not
include the right to manage, dictate, overrule and prohibit. Therefore, it does not include
the right to dominate. (Emphases in the original; underscoring supplied)
The addition of the word "reasonable" did not change the texture of police power that the State exercises over
education. It merely emphasized that State supervision and regulation of legal education cannot amount to control.
4 Academic freedom
Fundamental in constitutional construction is that the Constitution is to be interpreted as a whole, and that all
provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the
purposes of the Constitution.212
Accordingly, the reasonable supervision and regulation clause is not a stand-alone provision, but must be read in
conjunction with the other Constitutional provisions relating to education which include, in particular, the clause on
academic freedom.
Section 5(2), Article XIV of the 1987 Constitution, provides:
(2) Academic freedom shall be enjoyed in all institutions of higher learning.
This guarantee is not peculiar to the 1987 Constitution. A similar· provision was found in the 1973 Constitution
providing that: "All institutions of higher learning shall enjoy academic freedom."213 Both the 1973 and 1987
Constitutions provide for a broader scope of academic freedom compared to the 1935 Constitution which limits the
guarantee of academic freedom only to universities of higher learning established by the State.214
In fact, academic freedom is not a novel concept. This can be traced to the freedom of intellectual inquiry
championed by Socrates, lost and replaced by thought control during the time of Inquisition, until the movement
back to intellectual liberty beginning the 16th century, most particularly flourishing in German universities.215
Academic freedom has traditionally been associated as a narrow aspect of the broader area of freedom of thought,
speech, expression and the press. It has been identified with the individual autonomy of educators to "investigate,
pursue, [and] discuss free from internal and external interference or pressure."216 Thus, academic freedom of faculty
members, professors, researchers, or administrators is defended based on the freedom of speech and press.217
Academic freedom is enjoyed not only by members of the faculty, but also by the students themselves, as affirmed
in Ateneo de Manila University v. Judge Capulong:218
x x x. After protracted debate and ringing speeches, the final version which was none too different from
the way it was couched in the previous two (2) Constitutions, as found in Article XIV, Section 5(2)
states: "Academic freedom shall be enjoyed in all institutions of higher learning." In anticipation of the
question as to whether and what aspects of academic freedom are included herein, ConCom
Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic concept, we want to
expand the frontiers of freedom, especially in education, therefore, we shall leave it to the courts to
develop further the parameters of academic freedom."
More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak of the sentence
'academic freedom shall be enjoyed in all institutions of higher learning,' do we mean that academic
freedom shall be enjoyed by the institution itself?" Azcuna replied: "Not only that, it also includes x x x"
Gascon finished off the broken thought, "the faculty and the students." Azcuna replied: "Yes."
Jurisprudence has so far understood academic freedom of the students as the latter's right to enjoy in school the
guarantees of the Bill of Rights. For instance, in Villar v. Technological Institute of the Philippines219 and in Non v.
Dames II,220 it was held that academic standards cannot be used to discriminate against students who exercise their
rights to peaceable assembly and free speech, in Malabanan v. Ramento,221 it was ruled that the punishment must
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be commensurate with the offense, and in Guzman v. National University,222 which affirmed the student's right to due
process.
Apart from the academic freedom of teachers and students, the academic freedom of the institution itself is
recognized and constitutionally guaranteed.
The landmark case of Garcia v. The Faculty Admission Committee, Loyola School of Theology223 elucidates how
academic freedom is enjoyed by institutions of higher learning:
[I]t is to be noted that the reference is to the "institutions of higher learning" as the recipients of this
boon. It would follow then that the school or college itself is possessed of such a right. It decides for
itself its aims and objectives and how best to attain them. It is free from outside coercion or interference
save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students. This constitutional provision is not to be
construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose, nullify
its intent. Former President Vicente G. Sinco of the University of the Philippines, in his Philippine
Political Law, is similarly of the view that it "definitely grants the right of academic freedom to the
university as an institution as distinguished from the academic freedom of a university professor." He
cited the following from Dr. Marcel Bouchard, Rector of the University of Dijon, France, President of the
conference of rectors and vice-chancellors of European universities: "It is a well-established fact, and
yet one which sometimes tends to be obscured in discussions of the problems of freedom, that the
collective liberty of an organization is by no means the same thing as the freedom of the individual
members within it; in fact, the two kinds of freedom are not even necessarily connected. In considering
the problems of academic freedom one must distinguish, therefore, between the autonomy of the
university, as a corporate body, and the freedom of the individual university teacher." Also: To clarify
further the distinction between the freedom of the university and that of the individual scholar, he says:
The personal aspect of freedom consists in the right of each university teacher - recognized and
effectively guaranteed by society - to seek and express the truth as he personally sees it, both in his
academic work and in his capacity as a private citizen. Thus the status of the individual university
teacher is at least as important, in considering academic freedom, as the status of the institutions to
which they belong and through which they disseminate their learning. (Internal citations omitted;
emphasis supplied)
Garcia also enumerated the internal conditions for institutional academic freedom, that is, the academic staff should
have de facto control over: (a) the admission and examination of students; (b) the curricula for courses of study; (c)
the appointment and tenure of office of academic staff; and (d) the allocation of income among the different
categories of expenditure.224
Reference was also made to the influential language of Justice Frankfurter's concurring opinion in Sweezy v. New
Hampshire,225 describing it as the "business of the university" to provide a conducive atmosphere for speculation,
experimentation, and creation where the four essential freedoms of the university prevail: the right of the university
to determine for itself on academic grounds (a) who may teach; (b) what may be taught; (c) how it shall be taught;
and (d) who may be admitted to study.
4(a). State's supervisory and regulatory power over
legal education in relation to academic freedom
The rule is that institutions of higher learning enjoy ample discretion to decide for itself who may teach, what may be
taught, how it shall be taught and who to admit, being part of their academic freedom. The State, in the exercise of
its reasonable supervision and regulation over education, can only impose minimum regulations.
At its most elementary, the power to supervise and regulate shall not be construed as stifling academic freedom in
institutions of higher learning. This must necessarily be so since institutions of higher learning are not mere walls
within which to teach; rather, it is a place where research, experiment, critical thinking, and exchanges are secured.
Any form of State control, even at its most benign and disguised as regulatory, cannot therefore derogate the
academic freedom guaranteed to higher educational institutions. In fact, this non-intrusive relation between the State
and higher educational institutions is maintained even when the Constitution itself prescribes certain educational
"thrusts" or directions.226
This attitude of non-interference is not lost in jurisprudence. To cite an example, due regard for institutional
academic freedom versus State interference was recognized in Lupangco v. Court of Appeals,227 the commendable
purpose of the Philippine Regulation Commission of ensuring the integrity of the examination notwithstanding:
Another evident objection to Resolution No. 105 is that it violates the academic freedom of the
schools concerned. Respondent PRC cannot interfere with the conduct of review that review
schools and centers believe would best enable their enrolees to meet the standards required
before becoming a full-[f]ledged public accountant. Unless the means or methods of instruction
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are clearly found to be inefficient, impractical, or riddled with corruption, review schools and
centers may not be stopped from helping out their students. x x x (Emphasis supplied)
Similarly, in University of the Philippines v. Civil Service Commission,228 the Court upheld the university's academic
freedom to choose who should teach and held that the Civil Service Commission had no authority to dictate to the
university the outright dismissal of its personnel. Nothing short of marked arbitrariness,229 or grave abuse of
discretion230 on the part of the schools, or overriding public welfare231 can therefore justify State interference with the
academic judgment of higher educational institutions. As held in Ateneo de Manila University v. Judge Capulong,232 "
[a]s corporate entities, educational institutions of higher learning are inherently endowed with the right to establish
their policies, academic and otherwise, unhampered by external controls or pressure."
5. Right to education
Apart from the perspective of academic freedom, the reasonable supervision and regulation clause is also to be
viewed together with the right to education. The 1987 Constitution speaks quite elaborately on the right to education.
Section 1, Article XIV provides:
SEC. 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take
appropriate steps to make such education accessible to all.
The normative elements of the general right to education under Section 1, Article XIV, are (1) to protect and promote
quality education; and (2) to take appropriate steps towards making such quality education accessible.
"Quality" education is statutorily defined as the appropriateness, relevance and excellence of the education given to
meet the needs and aspirations of the individual and society.233
In order to protect and promote quality education, the political departments are vested with the ample authority to
set minimum standards to be met by all educational institutions. This authority should be exercised within the
parameters of reasonable supervision and regulation. As elucidated in Council of Teachers:234
While the Constitution indeed mandates the State to provide quality education, the determination of
what constitutes quality education is best left with the political departments who have the necessary
knowledge, expertise, and resources to determine the same. The deliberations of the Constitutional
Commission again are very instructive:
Now, Madam President, we have added the word "quality" before "education" to send
appropriate signals to the government that, in the exercise of its supervisory and
regulatory powers, it should first set satisfactory minimum requirements in all areas
curriculum, faculty, internal administration, library, laboratory class and other facilities, et
cetera, and it should see to it that satisfactory minimum requirements are met by all
educational institutions, both public and private.
When we speak of quality education we have in mind such matters, among others, as
curriculum development, development of learning resources and instructional materials,
upgrading of library and laboratory facilities, innovations in educational technology and
teaching methodologies, improvement of research quality, and others. Here and in many
other provisions on education, the principal focus of attention and concern is the students.
I would like to say that in my view there is a slogan when we speak of quality of education
that I feel we should be aware of, which is, "Better than ever is not enough." In other
words, even if the quality of education is good now, we should attempt to keep on
improving it. (Emphases and underscoring supplied)
On the other hand, "accessible" education means equal opportunities to education regardless of social and
economic differences. The phrase "shall take appropriate steps" signifies that the State may adopt varied
approaches in the delivery of education that are relevant and responsive to the needs of the people and the society.
This is why, towards this end, the State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of education
relevant to the needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and high school
levels. Without limiting the natural right of parents to rear their children, elementary education is
compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and
other incentives which shall be available to deserving students in both public and private
schools, especially to the underprivileged;
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(4) Encourage non-formal, informal, and indigenous learning systems, as well as self-learning,
independent, and out-of-school study programs particularly those that respond to community
needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational
efficiency, and other skills.235 (Emphases supplied)
The deliberations of the framers in this regard are instructive:
MR. GASCON: When we speak of education as a right, what we would like to emphasize is
that education should be equally accessible to all regardless of social and economic differences. So we
go into the issue of providing opportunities to such an education, recognizing that there are limitations
imposed on those who come from the poorer social classes because of their inability to continue
education.236 x x x (Emphasis supplied)
And further, as follows:
This is why when we speak of education as a right, it means very clearly that education should be
accessible to all, regardless of social and economic differences, meaning, educational opportunities
should be provided through a system of free education, at least, up to the secondary level. And
recognizing the limits of our financial resources, tertiary education should still be afforded and provided
availability to those who are poor and deserving. That is why when we say that education is a right, it
imposes a correlative duty on the part of the State to provide it to the citizens. Making it a right shows
that education is recognized as an important function of the State. Education is not merely a social
service to be provided by the State. The proposed provision recognizes that a right to education is a
right to acquire a decent standard of living, and that, therefore, the State cannot deprive anyone of this
right in the same manner that the right to life, the right to liberty and property cannot be taken away
without due process of law.237 (Emphasis supplied)
The element of accessibility under the Constitution, thus, pertains to both the elimination of discrimination especially
against disadvantaged groups and to the financial duty of the State for, after all, the right to education is part and
parcel of social justice. The objective is to make quality education accessible by appropriate means.
Apart from the Constitution, the right to education is also recognized in international human rights law under various
instruments to which the Philippines is a state signatory and to which it is concomitantly bound.
For instance, Article 13(2)238 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
recognizes the right to receive an education with the following interrelated and essential features; (a) availability; (b)
accessibility; (c) acceptability; and (d) adaptability.239
In particular, accessibility is understood as giving everyone, without discrimination, access to educational institutions
and programs. Accessibility has three overlapping dimensions:
(1) Non-discrimination - education must be accessible to all, especially the most vulnerable groups, in law and
fact, without discrimination on any of the prohibited grounds x x x;
(2) Physical accessibility - education has to be within safe physical reach, either by attendance at some
reasonably convenient geographic location ([e.g.] a neighborhood school) or [via] modern technology ([e.g.]
access to a "distance learning" programme); [and]
(3) Economic accessibility - education has to be affordable to all. This dimension of accessibility is subject to
the differential wording of [A]rticle 13(2) in relation to primary, secondary and higher education: whereas
primary education shall be available "free to all", States parties are required to progressively introduce free
secondary and higher education[.]240
Pertinent to higher education, the elements of quality and accessibility should also be present as the Constitution
provides that these elements should be protected and promoted in all educational institutions.
Nevertheless, the right to receive higher education is not absolute.
5(a). Right to education is subject to fair,
reasonable, and equitable admission and
academic requirements
Article 26(1)241 of the Universal Declaration of Human Rights provides that "[t]echnical and professional education
shall be made generally available and higher education shall be equally accessible to all on the basis of merit[,]"
while the ICESCR provides that "[h]igher education shall be made equally accessible to all, on the basis of capacity,
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by every appropriate means, and in particular by the progressive introduction of free education[.]"242 Thus, higher
education is not to be generally available, but accessible only on the basis of capacity.243 The capacity of individuals
should be assessed by reference to all their relevant expertise and experience.244
The right to receive higher education must further be read in conjunction with the right of every citizen to select a
profession or course of study guaranteed under the Constitution. In this regard, the provisions of the 1987
Constitution under Section 5(3), Article XIV are more exacting:
SEC. 5. x x x
xxxx
(3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable
admission and academic requirements.
There is uniformity in jurisprudence holding that the authority to set the admission and academic requirements used
to assess the merit and capacity of the individual to be admitted and retained in higher educational institutions lie
with the institutions themselves in the exercise of their academic freedom.
In Ateneo de Manila University v. Judge Capulong,245 the Court ruled:
Since Garcia v. Loyola School of Theology, we have consistently upheld the salutary proposition
that admission to an institution of higher learning is discretionary upon a school, the same
being a privilege on the part of the student rather than a right. While under the Education Act of
1982, students have a right "to freely choose their field of study, subject to existing curricula
and to continue their course therein up to graduation," such right is subject, as all rights are, to
the established academic and disciplinary standards laid down by the academic institution.
"For private schools have the right to establish reasonable rules and regulations for the admission,
discipline and promotion of students. This right x x x extends as well to parents x x x as parents are
under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate
with the schools."
Such rules are "incident to the very object of incorporation and indispensable to the successful
management of the college. The rules may include those governing student discipline." Going a step
further, the establishment of rules governing university-student relations, particularly those pertaining to
student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the
institution, but to its very survival.
Within memory of the current generation is the eruption of militancy in the academic groves as
collectively, the students demanded and plucked for themselves from the panoply of academic freedom
their own rights encapsulized under the rubric of "right to education" forgetting that, in Hohfeldian
terms, they have a concomitant duty, and that is, their duty to learn under the rules laid down by the
school. (Citation in the original omitted; emphases supplied)
In Villar v. Technological Institute of the Philippines,246 the Court similarly held:
xxxx
2. What cannot be stressed too sufficiently is that among the most important social, economic, and cultural
rights is the right to education not only in the elementary and high school grades but also on the college level.
The constitutional provision as to the State maintaining "a system of free public elementary education and, in
areas where finances permit, establish and maintain a system of free public education" up to the high school
level does not per se exclude the exercise of that right in colleges and universities. It is only at the most a
reflection of the lack of sufficient funds for such a duty to be obligatory in the case of students in the colleges
and universities. As far as the right itself is concerned, not the effectiveness of the exercise of such right
because of the lack of funds, Article 26 of the Universal Declaration of Human Rights provides: "Everyone has
the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary
education shall be compulsory. Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit."
3. It is quite clear that while the right to college education is included in the social economic, and cultural
rights, it is equally manifest that the obligation imposed on the State is not categorical, the phrase used being
"generally available" and higher education, while being "equally accessible to all should be on the basis of
merit." To that extent, therefore, there is justification for excluding three of the aforementioned petitioners
because of their marked academic deficiency.
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4. The academic freedom enjoyed by "institutions of higher learning" includes the right to set academic
standards to determine under what circumstances failing grades suffice for the expulsion of students. Once it
has done so, however, that standard should be followed meticulously. It cannot be utilized to discriminate
against those students who exercise their constitutional rights to peaceable assembly and free speech. If it
does so, then there is a legitimate grievance by the students thus prejudiced, their right to the equal
protection clause being disregarded. (Emphases supplied)
Likewise, in Calawag:247
Lastly, the right to education invoked by Calawag cannot be made the basis for issuing a writ of
preliminary mandatory injunction. In Department of Education, Culture and Sports v. San Diego, we
held that the right to education is not absolute. Section 5(e), Article XIV of the Constitution provides that
"[e]very citizen has a right to select a profession or course of study, subject to fair, reasonable, and
equitable admission and academic requirements." The thesis requirement and the compliance with the
procedures leading to it, are part of the reasonable academic requirements a person desiring to
complete a course of study would have to comply with. (Citation in the original omitted; emphasis
supplied)
The deliberations of the framers on the qualifications to the right to education are also illuminating:
MR. NOLLEDO: Thank you, Madam President. Before I ask questions directed to the chairman and
members of the committee, I would like to warmly congratulate them for a job well-done. The
committee report to my mind, Madam President, is excellent and I hope it will not, in the course of
amendments, suffer from adulteration. With respect to page 1, lines 12-13: "Education is the right of
every citizen of the Philippines," I agree with this statement, but when we talk of the right, I understand
from the chairman that it is compellable and from Commissioner Guingona, that it is enforceable in
court. Suppose a student of a private school is not allowed to enroll by reason of misconduct or that his
stay in the school is considered by the administration of that school to be undesirable, does he have a
right to enforce his right to education under this situation?
MR. GUINGONA: Madam President, the right to education, like any other right, is not absolute. As a
matter of fact, Article XXVI of the Universal Declaration of Human Rights, when it acknowledges the
right to education, also qualifies it when at the end of the provision, it say, "on the basis of merit."
Therefore, the student may be subject to certain reasonable requirements regarding admission and
retention and this is so provided in the draft Constitution. We admit even of discrimination. We have
accepted this in the Philippines, and I suppose in the United States there are schools that can refuse
admission to boys because they are supposed to be exclusively for girls. And there are schools that
may refuse admission to girls because they are exclusively for boys. There may even be discrimination
to accept a student who has a contagious disease on the ground that it would affect the welfare of the
other students. What I mean is that there could be reasonable qualifications, limitations or restrictions
to this right, Madam President.
MR. GASCON: May I add, Madam President.
MR. NOLLEDO: Yes, the Commissioner may.
MR. GASCON: When we speak of education as a right, what we would like to emphasize is that
education should be equally accessible to all regardless of social and economic differences. So we go
into the issue of providing opportunities to such an education, recognizing that there are limitations
imposed on those who come from the poorer social classes because of their inability to continue
education.
However, in the same light, this right to education is subject to the right of educational institutions to
admit students upon certain conditions such as ability to pay the required entrance examination fee and
maintaining a respectable school record. When we speak of this right of schools as far as maintaining a
certain degree or quality of students, these conditions must be reasonable and should not be used just
to impose certain unfair situations on the students.
MR. GUINGONA: Madam President, may I add.
There is already established jurisprudence about this. In the United States, in the case of [Lesser] v.
Board of Education of New York City, 239, NYS 2d 776, the court held that the refusal of a school to
admit a student who had an average of less than 85 percent which is the requirement for that school
was lawful.
In the Philippines, we have the case of Padriguilan [sic] v. Manila Central University where refusal to
retain the student was because of the alleged deficiency in a major subject and this was upheld by our
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Supreme Court. There is also the case of Garcia v. Loyola School of Theology, wherein Garcia, a
woman, tried to continue studying in this school of theology.248 (Citation in the original omitted;
emphases supplied)
Extant from the foregoing is that while there is a right to quality higher education, such right is principally subject to
the broad academic freedom of higher educational institutions to impose fair, reasonable, and equitable admission
and academic requirements. Plainly stated, the right to receive education is not and should not be taken to mean as
a right to be admitted to educational institutions.
With the basic postulates that jurisdiction over legal education belongs primarily and directly to the political
departments, and that the exercise of such police power must be in the context of reasonable supervision and
regulation, and must be consistent with academic freedom and the right to education, the Court now proceeds to
address whether the assailed provisions of R.A. No. 7662 and the corresponding LEB issuances fall within, the
constitutionally-permissible supervision and regulation of legal education.
C.
LEB's Powers Under R.A. No. 7662 vis-a-vis the
Court's Jurisdiction Under Article VIII, Section
5(5) of the Constitution
1 Section 3(a)(2) on increasing awareness
among members of the legal profession
One of the general objectives of legal education under Section 3(a)(2) of R.A. No. 7662 is to "increase awareness
among members of the legal profession of the needs of the poor, deprived and oppressed sectors of society[.]" This
objective is reiterated by the LEB in LEBMO No. 1-2011, Section 7, Article II, as follows:
SEC. 7. (Section 3 of the law) General and Specific Objectives of Legal Education.
a) Legal education in the Philippines is geared to attain the following objectives:
xxxx
(2) to increase awareness among members of the legal profession of the needs of the poor, deprived
and oppressed sectors of society[.] (Emphasis supplied)
The plain language of Section 3(a)(2) of R.A. No. 7662 and Section 7(2) of LEBMO No. 1-2011 are clear and need
no further interpretation. This provision goes beyond the scope of R.A. No. 7662, i.e., improvement of the quality of
legal education, and, instead delves into the training of those who are already members of the bar. Likewise, this
objective is a direct encroachment on the power of the Court to promulgate rules concerning the practice of law and
legal assistance to the underprivileged and should, thus, be voided on this ground. As aptly observed by the CLEBM
and which the Court had approved:
In the same vein Section 3 provides as one of the objectives of legal education increasing "awareness
among members of the legal profession of the needs of the poor, deprived and oppressed sectors of
the society." Such objective should not find a place in the law that primarily aims to upgrade the
standard of schools of law as they perform the task of educating aspiring lawyers. Section 5, paragraph
5 of Article VIII of the Constitution also provides that the Supreme Court shall have the power to
promulgate rules on "legal assistance to the underprivileged" and hence, implementation of [R.A. No.
7662 might give rise to infringement of a constitutionally mandated power.249
2 Section 2, par. 2 and Section 7(g) on legal
apprenticeship and law practice internship
as a requirement for taking the bar
Towards the end of uplifting the standards of legal education, Section 2, par. 2 of R.A. No. 7662 mandates the State
to (1) undertake appropriate reforms in the legal education system; (2) require proper selection of law students; (3)
maintain quality among law schools; and (4) require legal apprenticeship and continuing legal education.
Pursuant to this policy, Section 7(g) of R.A. No. 7662 grants LEB the power to establish a law practice internship as
a requirement for taking the bar examinations:
SEC. 7. Powers and Functions. - x x x x
xxxx
(g) to establish a law practice internship as a requirement for taking the Bar, which a law student shall
undergo with any duly accredited private or public law office or firm or legal assistance group anytime
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during the law course for a specific period that the Board may decide, but not to exceed a total of
twelve (12) months. For this purpose, the Board shall prescribe the necessary guidelines for such
accreditation and the specifications of such internship which shall include the actual work of a new
member of the Bar.
This power is mirrored in Section 11(g) of LEBMO No. 1-2011:
SEC. 11. (Section 7 of the law) Powers and Functions. - For the purpose of achieving the objectives of
this Act, the Board shall have the following powers and functions:
xxxx
g) to establish a law practice internship as a requirement for taking the Bar which a law student shall
undergo with any duly accredited private or public law office or firm or legal assistance group anytime
during the law course for a specific period that the Board may decide, but not to exceed a total of
twelve (12)months. For this purpose, the Board shall prescribe the necessary guidelines for such
accreditation and the specifications of such internship which shall include the actual work of a new
member of the Bar[.]
It is clear from the plain text of Section 7(g) that another requirement, i.e., completion of a law internship program, is
imposed by law for taking the bar examinations. This requirement unduly interferes with the exclusive jurisdiction of
the Court to promulgate rules concerning the practice of law and admissions thereto.
The jurisdiction to determine whether an applicant may be allowed to take the bar examinations belongs to the
Court. In fact, under the whereas clauses of the Revised Law Student Practice Rule, the Court now requires the
completion of clinical legal education courses, which may be undertaken either in a law clinic or through an
externship, as a prerequisite to take the bar examinations, thus:
Whereas, to produce practice-ready lawyers, the completion of clinical legal education courses must be
a prerequisite to take the bar examinations as provided in Section 5 of Rule 138.
Under Section 7(g), the power of the LEB is no longer confined within the parameters of legal education, but now
dabbles on the requisites for admissions to the bar examinations, and consequently, admissions to the bar. This is a
direct encroachment upon the Court's exclusive authority to promulgate rules concerning admissions to the bar and
should, therefore, be struck down as unconstitutional.
Further, and as will be discussed hereunder, the LEB exercised this power in a manner that forces upon law schools
the establishment of a legal apprenticeship program or a legal aid clinic, in violation of the schools' right to
determine for themselves their respective curricula.
3 Section 2, par. 2 and Section 7(h) on
continuing legal education of practicing lawyers
Petitioners in G.R. No. 230642 argue that the power given to the LEB to adopt a system of continuing legal
education implies that the LEB exercises jurisdiction not only over the legal education of those seeking to become
lawyers, but also over those who are already lawyers which is a function exclusively belonging to the
Court.250 Respondent, on the other hand, maintains that the LEB's power to adopt a system of continuing legal
education is different from the mandatory continuing legal education required of all members of the
bar.251 Respondent explains that the continuing legal education under R.A. No. 7662 is limited to the training of
lawyer-professors and not to the practice of the legal profession.252
The questioned power of the LEB to adopt a system of continuing legal education appears in Section 2, par. 2 and
Section 7(h) of R.A. No. 7662:
SEC. 2. Declaration of Policies. - x x x
xxxx
Towards this end, the State shall undertake appropriate reforms in the legal education system, require
proper selection of law students, maintain quality among law schools, and require legal apprenticeship
and continuing legal education.
xxxx
SEC. 7. Powers and Functions. - x x x
xxxx
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(h) to adopt a system of continuing legal education. For this purpose, the [LEB] may provide for the
mandatory attendance of practicing lawyers in such courses and for such duration as the [LEB] may
deem necessary; x x x (Emphases supplied)
This power is likewise reflected in Section 11(h) of LEBMO No. 1-2011, as follows:
SEC. 11. (Section 7 of the law) Powers and Functions. - For the purpose of achieving the objectives of
this Act, the Board shall have the following powers and functions:
xxxx
h) to adopt a system of continuing legal education. For this purpose, the Board may provide for
the mandatory attendance of practicing lawyers in such courses and for such duration as the
Board may deem necessary[.] x x x (Emphasis supplied)
By its plain language, the clause "continuing legal education" under Section 2, par. 2, and Section 7(h) of R.A. No.
7662 unduly give the LEB the power to supervise the legal education of those who are already members of the bar.
Inasmuch as the LEB is authorized to compel mandatory attendance of practicing lawyers in such courses and for
such duration as the LEB deems, necessary, the same encroaches upon the Court's power to promulgate rules
concerning the Integrated Bar which includes the education of "lawyer-professors" as teaching of law is practice of
law. The mandatory continuing legal education of the members of the bar is, in fact, covered by B.M. No. 850 or the
ℒαwρhi৷
Rules on Mandatory Continuing Legal Education (MCLE) dated August 22, 2000 which requires members of the bar,
not otherwise exempt, from completing, every three years, at least 36 hours of continuing legal education activities
approved by the MCLE Committee directly supervised by the Court.
As noted by the CLEBM:
Thus, under the declaration of policies in Section 2 of [R.A. No. 7662, the State "shall undertake
appropriate reforms in the legal education system, require the proper selection of law students,
maintain quality among law schools and require apprenticeship and continuing legal education["]. The
concept of continuing legal education encompasses education not only of law students but also of
members of the legal profession. Its inclusion in the declaration of policies implies that the [LEB] shall
have jurisdiction over the education of persons who have finished the law course and are already
licensed to practice law. Viewed in the light of Section 5, paragraph 5 of Article VIII of the Constitution
that vests the Supreme Court with powers over the Integrated Bar of the Philippines, said portion of
Section 2 of [R.A. No. 7662 risks a declaration of constitutional infirmity.253 (Underscoring supplied)
4 Section 7(e) on minimum
standards for law admission
and the PhiLSAT issuances
Of the several powers of the LEB under R.A. No. 7662, its power to prescribe minimum standards for law admission
under Section 7(e) received the strongest objection from the petitioners. Section 7(e), provides:
SEC. 7. Powers and Functions. - x x x
xxxx
(e) to prescribe minimum standards for law admission and minimum qualifications and compensation of
faculty members; (Emphasis supplied)
Petitioners argue that the power to prescribe the minimum standards for law admission belongs to the Court
pursuant to its rule-making power concerning the admission to the practice of law; Thus, Section 7(e) of R.A. No.
7662 which gives the LEB the power to prescribe the minimum standards for law admission is allegedly
unconstitutional as it violates the doctrine of separation of powers. Necessarily, according to the petitioners, the
PhiLSAT which was imposed by the LEB pursuant to Section 7(e) of R.A. No. 7662 is likewise void.
The Court finds no constitutional conflict between its rule-making power and the power of the LEB to prescribe the
minimum standards for law admission under Section 7(e) of R.A. No. 7662. Consequently, the PhiLSAT, which
intends to regulate admission to law schools, cannot be voided on this ground.
4(a). LEB's power to prescribe minimum standards
for "law admission" pertain to admission to
legal education and not to the practice of law
Much of the protestation against the LEB's exercise of the power to prescribe the minimum standards for law
admission stems from the interpretation extended to the phrase "law admission." For petitioners, "law admission"
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pertains to the practice of law, the power over which belongs exclusively to the Court.
The statutory context and the intent of the legislators do not permit such interpretation.
Basic is the rule in statutory construction that every part of the statute must be interpreted with reference to the
context, that is, every part must be read together with the other parts, to the end that the general intent of the law is
given primacy.254 As such, a law's clauses and phrases cannot be interpreted as isolated expressions nor read in
truncated parts, but must be considered to form a harmonious whole.255
Accordingly, the LEB's power under Section 7(e) of R.A. No. 7662 to prescribe the minimum standards for law
admission should be read with the State policy behind the enactment of R.A. No. 7662 which is fundamentally to
uplift the standards of legal education and the law's thrust to undertake reforms in the legal education system.
Construing the LEH's power to prescribe the standards for law admission together with the LEB's other powers to
administer, supervise, and accredit law schools, leads to the logical interpretation that the law circumscribes the
LEB's power to prescribe admission requirements only to those seeking enrollment to a school or college of law and
not to the practice of law.
Reference may also be made to DECS Order No. 27-1989, as the immediate precursor of R.A. No. 7662, as to what
is sought to be regulated when the law speaks of "law admission" requirements.
Section 1, Article VIII of DECS Order No. 27-1989 is clear that the admission requirement pertains to enrollment in a
law course, or law school, or legal education, thus:
Article VIII
Admission, Residence and Other Requirements
SEC. 1. No applicant shall be enrolled in the law course unless he complies with specific requirements
for admission by the Bureau of Higher Education and the Supreme Court of the Philippines, for which
purpose he must present to the registrar the necessary credentials before the end of the enrollment
period. (Emphases supplied)
This contemporary interpretation suffice in itself to hold that the phrase "law admission" pertains to admission to the
study of law or to legal education, and not to the practice of law. Further support is nevertheless offered by the
exchanges during the Senate interpellations, wherein it was assumed that the phrase "minimum standards for law
admission" refers to the requirements that the student must fulfill before being admitted to law school. This
assumption was not corrected by the bill's sponsor.256
4(b). Section 7(e) of R.A. No. 7662 is reasonable supervision and regulation
Section 7(e) of R.A. No. 7662, insofar as it gives the LEB the power to prescribe the minimum standards for law
admission is faithful to the reasonable supervision and regulation clause. It merely authorizes the LEB to prescribe
minimum requirements not amounting to control.
Emphatically, the law allows the LEB to prescribe only the minimum standards and it did not, in any way, impose
that the minimum standard for law admission should be by way of an exclusionary and qualifying exam nor did it
prevent law schools from imposing their respective admission requirements.
Thus, under LEBMO No. 1-2011, the minimum standards for admission to law schools as implemented by the LEB
are: (1) completion of a four-year high school course; and (2) completion of a course for a bachelor's degree in arts
or sciences.257 Again, these requirements are but consistent with the nature of the law course in the Philippines as
being both a professional and post-baccalaureate education.
As the facts disclose, however, the LEB later on introduced the PhiLSAT as an additional prerequisite for admission
to law school.
4(c). Pursuant to Section 7(e), LEB is authorized to administer
an aptitude test as a minimum standard for law admission
Evident from the Senate deliberations that, in prescribing the minimum standards for law admission, an aptitude test
may be administered by the LEB although such is not made mandatory under the law. Thus:
Senator Tolentino: x x x
I will proceed to another point, Mr. President. I have taught law for more than 25 years in private
schools and in the University of the Philippines as well. There is one thing I have noticed in all these
years of teaching and that is, many students in the law school are not prepared or apt by inclination or
by ability to become lawyers. I see that the objectives of the legal education that are provided for in this
bill do not provide for some mechanism of choosing people who should take up the law course.
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As it is now, because of our democratic principles, anybody who wants to become a lawyer, who can
afford the tuition fee, or who has the required preparatory course, can be admitted into the law school.
And yet, while studying law, many of these students - I would say there are about 30 or 40 percent of
students in private schools - should not be taking up law but some other course because, simply, they
do not have the inclination, they do not have the aptitude or the ability to become lawyers.
Can that be provided for in this bill, Madam Sponsor? Would it contravene really our principles of
democracy where everybody should be free to take the course that he wants to take? Or should the
State be able to determine who should be able or who should be allowed to take a particular course, in
this case of law?
Senator Shahani: Mr. President, there are those aptitude tests which are being taken when the student
is in high school to somehow guide the guidance councilors [sic] into the aptitude of the students. But
the talent or the penchant for the legal profession is not one of those subjects specifically measured. I
think what is measured really is who is, more or less, talented for an academic education as against a
vocational education. But maybe, a new test will have to be designed to really test the aptitude of those
who would like to enter the law school. x x x
Senator Tolentino: x x x
Many parents want to see their children become lawyers. But they do not consider the aptitude of these
children, and they waste money and time in making these children take up law when they really are not
suited to the law course. My real concern is whether by legislation, we can provide for selection of
those who should be allowed to take up law, and not everybody would be allowed to take up law. x x x
xxxx
Senator Shahani: Mr. President, of course, the right to education is a constitutional right, and I think
one cannot just categorically deny a student - especially if he is bright - entrance to a law school. I think
I would stand by what I had previously said that an aptitude examination will have to be specially
designed. It is not in existence yet. x x x258 (Emphases supplied)
This matter was amplified in second reading:
Senator Angara: x x x
Senator Tolentino asked why there is an omission on the requirements for admission to law school. I
think [Senator Shahani] has already answered that, that the [LEB] may prescribe an aptitude test for
that purpose. Just as in other jurisdictions, they prescribe a law admission test for prospective students
of law. I think the board may very well decide to prescribe such a test, although it is not mandatory
under this bill.259 (Emphasis and underscoring supplied)
The lawmakers, therefore, recognized and intended that the LEB be vested with authority to administer an aptitude
test as a minimum standard for law admission. The presumption is that the legislature intended to enact a valid,
sensible, and just law and one which operates no further than may be necessary to effectuate the specific purpose
of the law.260 This presumption has not been successfully challenged by petitioners.
It also bears to note that the introduction of a law aptitude examination was actually supported by the Court when it
approved the CLEBM's proposed amendment to Section 7(e), as follows:
SEC. 6. Section 7 of the same law is hereby amended to read as follows:
"SEC. 7. Power and Functions. - x x x
xxxx
d). to prescribe minimum standards for ADMISSION TO LAW SCHOOLS INCLUDING A SYSTEM OF
LAW APTITUDE EXAMINATION x x x[.]" (Underscoring supplied)
And further in Bar Matter No. 1161261 when the Court referred to the LEB the conduct of a proposed law entrance
examination.
4(d). PhiLSAT, as an aptitude exam,
is reasonably related to the improvement
of legal education
Having settled that the LEB has the power to administer an aptitude test, the next issue to be resolved is whether
the exercise of such power, through the PhiLSAT, was reasonable.
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Indeed, an administrative regulation is susceptible to attack for unreasonableness. In Lupangco v. Court of
Appeals,262 the Court held:
It is an [axiom] in administrative law that administrative authorities should not act arbitrarily
and capriciously in the issuance of rules and regulations. To be valid, such rules and
regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear
no reasonable relation to the purposes for which they are authorized to be issued, then they
must be held to be invalid. (Emphasis supplied)
To determine whether the PhiLSAT constitutes a valid exercise of police power, the same test of
reasonableness, i.e., the concurrence of a lawful subject and lawful means, is employed. Petitioners argue that the
PhiLSAT is unreasonable because: it is not a conclusive proof of the student's aptitude;263 it entails unreasonable
examination and travel expenses and burdensome documentary requirements;264 applying for PhiLSAT exemption is
inconvenient;265 it is redundant to existing law school entrance exams;266 and it is not supported by scientific
study.267
Unfortunately, these grounds are not only conclusions of fact which beg the presentation of competent evidence, but
also necessarily go into the wisdom of the PhiLSAT which the Court cannot inquire into. The Court's pronouncement
as to the reasonableness of the PhiLSAT based on the grounds propounded by petitioners would be an excursion
into the policy behind the examinations - a function which is administrative rather than judicial.
Petitioners also argue that there is no reasonable relation between improving the quality of legal education and
regulating access thereto. The Court does not agree.
The subject of the PhiLSAT is to improve the quality of legal education. It is indubitable that the State has an interest
in prescribing regulations promoting education and thereby protecting the common good. Improvement of the quality
of legal education, thus, falls squarely within the scope of police power. The PhiLSAT, as an aptitude test, was the
means to protect this interest.
4(e). Tablarin sustained the conduct of an
admission test as a legitimate exercise
of the State's regulatory power
Moreover, by case law, the Court already upheld the validity of administering an aptitude test as a reasonable police
power measure in the context of admission standards into institutions of higher learning.
In Tablarin, the Court upheld not only the constitutionality of Section 5(a) of R.A. No. 2382, or the Medical Act of
1959, which gave the Board of Medical Education (BME) the power to prescribe requirements for admission to
medical schools, but also MECS Order No. 52, Series of 1985 (MECS Order No. 52-1985) issued by the BME which
prescribed NMAT.
Using the rational basis test, the Court upheld the constitutionality of the NMAT as follows:
Perhaps the only issue that needs some consideration is whether there is some reasonable relation
between the prescribing of passing the NMAT as a condition for admission to medical school on the
one hand, and the securing of the health and safety of the general community, on the other hand. This
question is perhaps most usefully approached by recalling that the regulation of the practice of
medicine in all its branches has long been recognized as a reasonable method of protecting the health
and safety of the public. That the power to regulate and control the practice of medicine includes the
power to regulate admission to the ranks of those authorized to practice medicine, is also well
recognized. Thus, legislation and administrative regulations requiring those who wish to practice
medicine first to take and pass medical board examinations have long ago been recognized as valid
exercises of governmental power. Similarly, the establishment of minimum medical educational
requirements - i.e., the completion of prescribed courses in a recognized medical school - for
admission to the medical profession, has also been sustained as a legitimate exercise of the regulatory
authority of the state. What we have before us in the instant case is closely related; the regulation of
access to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of
regulation of this type: the improvement of the professional and technical quality of the graduates of
medical schools, by upgrading the quality of those admitted to the student body of the medical
schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting,
among other things, of limiting admission to those who exhibit in the required degree the aptitude for
medical studies and eventually for medical practice. The need to maintain, and the difficulties of
maintaining, high standards in our professional schools in general, and medical schools in particular, in
the current stage of our social and economic development, are widely known.
We believe that the government is entitled to prescribe an admission test like the NMAT as a means for
achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of
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"improv[ing] the quality of medical education, in the country." Given the widespread use today of such
admission tests in, for instance, medical schools in the United States of America the Medical College
Admission Test [MCAT] and quite probably in other countries with far more developed educational
resources than our own, and taking into account the failure or inability of the petitioners to even attempt
to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the
ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of
the public from the potentially deadly effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma.268 (Emphases supplied)
The Court reached its conclusion that NMAT is a valid exercise of police power because the method employed, i.e.,
regulation of admissions to medical education is reasonably related to the subject, i.e., the protection of the public
by ensuring that only those qualified are eventually allowed to practice medicine.
The necessity of State intervention to ensure that the medical profession is not infiltrated by those unqualified to
take care of the life and health of patients was likewise the reason why the Court in Department of Education,
Culture and Sports v. San Diego269 upheld the "three-flunk" rule in NMAT:
We see no reason why the rationale in the [TabIarin] case cannot apply to the case at bar. The issue
raised in both cases is the academic preparation of the applicant. This may be gauged at least initially
by the admission test and, indeed with more reliability, by the three-flunk rule. The latter cannot be
regarded any less valid than the former in the regulation of the medical profession.
There is no need to redefine here the police power of the State. Suffice it to repeat that the power is
validly exercised if (a) the interests of the public generally, as distinguished from those of a particular
class, require the interference of the State, and (b) the means employed are reasonably necessary to
the attainment of the object sought to be accomplished and not unduly oppressive upon individuals.
In other words, the proper exercise of the police power requires the concurrence of a lawful subject and
a lawful method.
The subject of the challenged regulation is certainly within the ambit of the police power. It is
the right and indeed the responsibility of the State to insure that the medical profession is not
infiltrated by incompetents to whom patients may unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law
nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools
and ultimately the medical profession from the intrusion of those not qualified to be
doctors. (Emphases supplied)
Tablarin recognized that State intervention was necessary, and therefore was allowed, because of the need to meet
the goal of promoting public health and safety.
In similar vein, the avowed purpose of the PhiLSAT is to improve the quality of legal education by evaluating and
screening applicants to law school. As elucidated, the State has an interest in improving the quality of legal
education for the protection of the community at-large, and requiring an entrance test is reasonably related to that
interest. In other words, the State has the power and the prerogative to impose a standardized test prior to entering
law school, in the same manner and extent that the State can do so in medical school when it prescribed the NMAT.
In all, the Court finds no constitutional conflict between the Court's rule-making power concerning admissions to the
practice of law and on the LEB's power to prescribe minimum standards for law admission under Section 7(e) of
R.A. No. 7662.
Further, pursuant to its power under Section 7(e), the Court affirms the LEB's authority to initiate and administer an
aptitude test, such as the PhiLSAT, as a minimum standard for law admission. Thus, the PhiLSAT, insofar as it
functions as an aptitude exam that measures the academic potential of the examinee to pursue the study of law to
the end that the quality of legal education is improved is not per se unconstitutional.
However, there are certain provisions of the PhiLSAT that render its operation exclusionary, restrictive, and
qualifying which is contrary to its design as an aptitude exam meant to be used as a tool that should only help and
guide law schools in gauging the aptness of its applicants for the study of law. These provisions effectively and
absolutely exclude applicants who failed to pass the PhiLSAT from taking up a course in legal education, thereby
restricting and qualifying admissions to law schools. As will be demonstrated, these provisions of the PhiLSAT are
unconstitutional for being manifestly violative of the law schools' exercise of academic freedom, specifically the
autonomy to determine for itself who it shall allow to be admitted to its law program.
D.
LEB's Powers vis-a-vis Institutional Academic
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Freedom and the Right to Education
1 PhiLSAT
Paragraphs 7, 9, 11, and 15 of LEBMO No. 7-2016, provide:
xxxx
7. Passing Score - The cut-off or passing score for the PhiLSAT shall be FIFTY-FIVE PERCENT (55%)
correct answers, or such percentile score as may be prescribed by the LEB.
xxxx
9. Admission Requirement - All college graduates or graduating students applying for admission to the
basic law course shall be required to pass the PhiLSAT as a requirement for admission to any law
school in the Philippines. Upon the effectivity of this memorandum order, no applicant shall be admitted
for enrollment as a first year student in the basic law courses leading to a degree of either Bachelor of
Laws or Juris Doctor unless he/she has passed the PhiLSAT taken within 2 years before the start of
studies for the basic law course and presents a valid [Certificate of Eligibility] as proof thereof.
xxxx
11. Institutional Admission Requirements - The PhiLSAT shall be without prejudice to the right of a law
school in the exercise of its academic freedom to prescribe or impose additional requirements for
admission, such as but not limited to:
a. A score in the PhiLSAT higher than the cut-off or passing score set by the LEB;
b. Additional or supplemental admission tests to measure the competencies and/or personality of the
applicant; and
c. Personal interview of the applicant.
xxxx
15. Sanctions - Law schools violating this Memorandum Order shall [be] imposed the administrative
sanctions prescribed in Section 32 of LEBMO No. 2, Series of 2013 and/or fine of up to Ten Thousand
Pesos (P10,000) for each infraction. (Emphases supplied)
Without doubt, the above provisions exclude and disqualify those examinees who fail to reach the prescribed
passing score from being admitted to any law school in the Philippines. In mandating that only applicants who
scored at least 55% correct answers shall be admitted to any law school, the PhiLSAT actually usurps the right and
duty of the law school to determine for itself the criteria for the admission of students and thereafter, to apply such
criteria on a case-by-case basis. It also mandates law schools to absolutely reject applicants with a grade lower than
the prescribed cut-off score and those with expired PhiLSAT eligibility. The token regard for institutional academic
freedom comes into play, if at all, only after the applicants had been "pre-selected" without the school's participation.
The right of the institutions then are constricted only in providing "additional" admission requirements, admitting of
the interpretation that the preference of the school itself is merely secondary or supplemental to that of the State
which is antithetical to the very principle of reasonable supervision and regulation.
The law schools are left with absolutely no discretion to choose its students at the first instance and in accordance
with its own policies, but are dictated to surrender such discretion in favor of a State-determined pool of applicants,
under pain of administrative sanctions and/or payment of fines. Mandating law schools to reject applicants who
failed to reach the prescribed PhiLSAT passing score or those with expired PhiLSAT eligibility transfers complete
control over admission policies from the law schools to the LEB. As Garcia tritely emphasized: "[c]olleges and
universities should [not] be looked upon as public utilities devoid of any discretion as to whom to admit or reject.
Education, especially higher education, belongs to a different, and certainly higher category."270
1(a). Comparison of PhiLSAT with NMAT and LSAT
Respondent urges the Court to treat the PhiLSAT in the same manner that the Court treated the NMAT in Tablarin.
Petitioners oppose on the ground that the PhiLSAT and the NMAT are different because there is a Constitutional
body, i.e., the Court, tasked to regulate the practice of law while there is none with respect to the practice of
medicine.
The Court treats the PhiLSAT differently from the NMAT for the fundamental reason that these aptitude exams
operate differently.
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For one, how these exams allow the schools to treat the scores therein obtained is different.
While both exams seem to prescribe a "cut-off" score, the NMAT score is evaluated by the medical schools in
relation to their own cut-off scores. Unlike the PhiLSAT score, the NMAT score is not the sole determining factor on
whether or not an examinee may be admitted to medical school. The NMAT score is only meant to be one of the
bases for evaluating applicants for admission to a college of medicine.
Medical schools further enjoy the discretion to determine how much weight should be assigned to an NMAT score
relative to the schools' own admissions policy. Different medical schools may therefore set varying acceptable
NMAT scores. Different medical schools may likewise assign different values to the NMAT score. This allows
medical schools to consider the NMAT score along with the other credentials of the applicant. The NMAT score does
not constrain medical schools to accept pre-selected applicants; it merely provides for a tool to evaluate all
applicants.
Obtaining a low NMAT percentile score will not immediately and absolutely disqualify an applicant from being
admitted to medical school. Obtaining a high NMAT percentile score only increases an applicant's options for
medical schools. Taking the NMAT, thus, expands the applicant's options for medical schools; it does not limit them.
For another, medical schools are not subjected to sanctions in case they decide to admit an applicant pursuant to
their own admissions policy. In fact, at some point,271 there was even no prescribed cut-off percentile score for the
NMAT, and instead it was stressed that a student may enroll in any school, college or university upon meeting the
latter's specific requirements and reasonable regulations.272 Also, the issuance of a certificate of eligibility for
admission to a college of medicine had been transferred to. the medical schools, thus, rightfully giving the
responsibility for and accountability of determining eligibility of students for admission to the medical program to the
schools concerned.273
Similar to the NMAT, the Law School Admission Test (LSAT) is only one of the several criteria for evaluation for law
school admission. It is just one of the methods that law schools may use to differentiate applicants for law school.
The American Bar Association actually allows a law school to use an admission test other than the LSAT and it does
not dictate the particular weight that a law school should give to the results of the LSAT in deciding whether to admit
an applicant.274
In contrast, the PhiLSAT score itself determines whether an applicant may be admitted to law school or not, the
PhiLSAT being strictly a pass or fail exam. It excludes those who failed to reach the prescribed cut-off score from
being admitted to any law school. It qualifies admission to law school not otherwise imposed by the schools
themselves. The PhiLSAT, as presently crafted, employs a totalitarian scheme in terms of student admissions. This
leaves the consequent actions of the applicant-student and the school solely dependent upon the results of the
PhiLSAT.
1(b). Balancing State interest with
institutional academic freedom ℒαwρhi৷
Thus far, it is settled that the PhiLSAT, when administered as an aptitude test, is reasonably related to the State's
unimpeachable interest in improving the quality of legal education. This aptitude test, however, should not be
exclusionary, restrictive, or qualifying as to encroach upon institutional academic freedom. Moreover, in the exercise
of their academic freedom to choose who to admit, the law schools should be left with the discretion to determine for
themselves how much weight should the results of the PhiLSAT carry in relation to their individual admission
policies. At all times, it is understood that the school's exercise of such academic discretion should not be gravely
abused, arbitrary, whimsical, or discriminatory.
With the conclusion that the PhiLSAT, when administered as an aptitude test, passes the test of reasonableness,
there is no reason to strike down the PhiLSAT in its entirety. Instead, the Court takes a calibrated approach and
partially nullifies LEBMO No. 7-2016 insofar as it absolutely prescribes the passing of the PhiLSAT and the taking
thereof within two years as a prerequisite for admission to any law school which, on its face, run directly counter to
institutional academic freedom. The rest of LEBMO No. 7-2016, being free from any taint of unconstitutionality,
should remain in force and effect, especially in view of the separability clause275 therein contained.
1(c). PhiLSAT and the right to education
Anent the argument that the PhiLSAT transgresses petitioners' right to education and their right to select a
profession or course of study, suffice to state that the PhiLSAT is a minimum admission standard that is rationally
related to the interest of the State to improve the quality of legal education and, accordingly, to protect the general
community. The constitutionality of the PhiLSAT, therefore, cannot be voided on the ground that it violates the right
to education as stated under Section 1, Article XIV of the Constitution. The Court's pronouncement
in Tablarin276 again resonates with significance:
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Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once more, petitioners have
failed to demonstrate that the statute and regulation they assail in fact clash with that provision. On the
contrary, we may note - x x x - that the statute and the regulation which petitioners attack are in fact
designed to promote "quality education" at the level of professional schools. When one reads Section 1
in relation to Section 5(3) of Article XIV, as one must, one cannot but note that the latter phrase of
Section 1 is not to be read with absolute literalness. The State is not really enjoined to take appropriate
steps to make quality education "accessible to all" who might for any number of reasons wish to enroll
in a professional school, but rather merely to make such education accessible to all who qualify under
"fair, reasonable and equitable admission and academic requirements."
2 Other LEB issuances on law admission
Apart from the PhiLSAT, the LEB also imposed additional requirements for admission to law schools under LEBMO
No. 1-2011, specifically:
Article III
Prerequisites and Program Specification
SEC. 15. Prerequisites to admission to Law School. - x x x
xxxx
Where the applicant for admission into a law school is a graduate of a foreign institution or school
following a different course and progression of studies, the matter shall be referred to the Board that
shall determine the eligibility of the candidate for admission to law school.
SEC. 16. Board Prerequisites for Admission to the Ll.B. or J.D. Program. - The Board shall apply
Section 6 of Rule 138 in the following wise: An applicant for admission to the Ll.B. or J.D. program of
studies must be a graduate of a bachelor's degree and must have earned at least eighteen (18) units in
English, six (6) units in Mathematics, and eighteen (18) units of social science subjects.
SEC. 17. Board Prerequisites for Admission to Graduate Programs in Law. - Without prejudice to other
requirements that graduate schools may lay down, no applicant shall be admitted for the Master of
Laws (Ll.M.) or equivalent master's degree in law or juridical science, without an Ll.B. or a J.D. degree.
Admission of non-Members of the Philippine Bar to the master's degree shall be a matter of academic
freedom vested in the graduate school of law. The candidate for the doctorate degree in juridical
science, or doctorate in civil law or equivalent doctorate degree must have completed a Master of Laws
(Ll.M.) or equivalent degree.
Graduate degree programs in law shall have no bearing on membership or non-membership in the
Philippine Bar.277 (Emphases supplied)
Further, LEBMO No. 1-2011, Article V, provides:
xxxx
SEC. 23. No student who has obtained a general average below 2.5 or 80 in the college course
required for admission to legal studies may be admitted to law school. Exceptions may be made by the
Dean in exceptionally meritorious cases, after having informed the Board.278
These provisions similarly encroach upon the law school's freedom to determine for itself its admission policies.
With regard to foreign students, a law school is completely bereft of the right to determine for itself whether to accept
such foreign student or not, as the determination thereof now belongs to the LEB.
Similarly, the requirement that an applicant obtain a specific number of units in English, Mathematics, and Social
Science subjects affects a law school's admission policies leaving the latter totally without discretion to admit
applicants who are deficient in these subjects or to allow such applicant to complete these requirements at a later
time. This requirement also effectively extends the jurisdiction of the LEB to the courses and units to be taken by the
applicant in his or her pre-law course. Moreover, such requirement is not to be found under Section 6, Rule 138 of
the Rules of Court as this section simply requires only the following from an applicant to the bar exams:
SEC. 6. Pre-Law. - No applicant for admission to the bar examination shall be admitted unless he presents a
certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued
and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto
the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in
arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english,
spanish, history and economics.
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Likewise, in imposing that only those with a basic degree in law may be admitted to graduate programs in law
encroaches upon the law school's right to determine who may be admitted. For instance, this requirement effectively
nullifies the option of admitting non-law graduates on the basis of relevant professional experience that a law school,
pursuant to its own admissions policy, may otherwise have considered.
The required general weighted average in the college course suffers the same infirmity and would have been struck
down had ·it not been expressly repealed by the LEB because of the PhiLSAT.279
3 Section 7(c) and 7(e) on the minimum
qualifications of faculty members
The LEB is also empowered under Section 7(c) to set the standards of accreditation taking into account, among
others, the "qualifications of the members of the faculty" and under Section 7(e) of R.A. No. 7662 to prescribe
"minimum qualifications and compensation of faculty members[.]"
Relative to the power to prescribe the minimum qualifications of faculty members, LEB prescribes under LEBMO
No. 1-2011 the following:
[PART I]
Article V
Instructional Standards
SEC. 20. The law school shall be headed by a properly qualified dean, maintain a corps of professors
drawn from the ranks of leading and acknowledged practitioners as well as academics and legal
scholars or experts in juridical science[.] x x x
xxxx
PART III
QUALIFICATIONS AND CURRICULUM
Article I
Faculty Qualifications
SEC. 50. The members of the faculty of a law school should, at the very least, possess a L1.B. or a
J.D. degree and should be members of the Philippine Bar. In the exercise of academic freedom, the
law school may also ask specialists in various fields of law with other qualifications, provided that they
possess relevant doctoral degrees, to teach specific subjects.
Within a period of five (5) years of the promulgation of the present order, members of the faculty of
schools of law shall commence their studies in graduate schools of law.
Where a law school offers the J.D. curriculum, a qualified Ll.B. graduate who is a member of the
Philippine Bar may be admitted to teach in the J.D. course and may wish to consider the privilege
granted under Section 56 hereof.
SEC. 51. The dean should have, aside from complying with the requirements above, at least a Master
of Laws (Ll.M.) degree or a master's degree in a related field, and should have been a Member of the
Bar for at least 5 years prior to his appointment as dean.
SEC. 52. The dean of a graduate school of law should possess at least a doctorate degree in law and
should be an acknowledged authority in law, as evidenced by publications and membership in learned
societies and organizations; members of the faculty of a graduate school of law should possess at least
a Master of Laws (Ll.M.) degree or the relevant master's or doctor's degrees in related fields.
Aside from the foregoing, retired justices of the Supreme Court, the Court of Appeals, the
Sandiganbayan and the Court of Tax Appeals may serve as deans of schools of law, provided that they
have had teaching experience as professors of law and provided further that, with the approval of the
Legal Education Board, a graduate school of law may accredit their experience in the collegiate
appellate courts and the judgments they have penned towards the degree [ad eundem] of Master of
Laws.280 (Emphases supplied)
Thus, under LEBMO No. 1-2011, a law faculty member must have an Ll.B or J.D. degree and must, within a period
of five years from the promulgation of LEBMO No. 1-2011, or from June 14, 2011 to June 14, 2016, commence
studies in graduate school of law.
The mandatory character of the requirement of a master's degree is underscored by the LEB in its Resolution No.
2014-02, a "sequel rule" to Section 50 of LEBMO No. 1-2011, which provides that:
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1. Members of the law faculty are required to be holders of the degree of Master of Laws. It is the
responsibility of the law deans to observe and implement this rule.
2. The law faculty of all law schools shall have the following percentage of holders of the master
of laws degree:
2.1. School Year- 2017-2018-20%
2.2. School Year- 2018-2019 - 40%
2.3. School Year- 2019-2020-60%
2.4. School Year- 2020-2021-80%
In computing the percentage, those who are exempted from the rule shall be included.
3. Exempted from this requirement of a master's degree in law are the following:
The Incumbent or Retired Members of the:
3.1. Supreme Court;
3.2. Court of Appeals, Sandiganbayan and Court of Tax Appeals;
3.3. Secretary of Justice and Under-Secretaries of Justice, Ombudsman, Deputy
Ombudsmen, Solicitor General and Assistant Solicitors General
3.4. Commissioners of the National Labor Relations Commission who teach Labor Laws;
3.5. Regional Trial Court Judges;
3.6. DOJ State and Regional State Prosecutors and Senior Ombudsman Prosecutors who
teach Criminal Law and/or Criminal Procedure;
3.7. Members of Congress who are lawyers who teach Political Law, Administrative Law,
Election Law, Law on Public Officers and other related subjects;
3.8. Members of Constitutional Commissions who are Lawyers;
3.9. Heads of bureaus who are lawyers who teach the law subjects which their respective
bureaus are implementing;
3.10. Ambassadors, Ministers and other [D]iplomatic Officers who are lawyers who teach
International Law or related subjects;
3.11. Those who have been teaching their subjects for 10 years or more upon
recommendation of their deans; and
3.12. Other lawyers who are considered by the Board to be experts in any field of law
provided they teach the subjects of their expertise.
4. The following are the sanctions for non-compliance with the foregoing rules:
4.1. If a law school is non-compliant with these rules for the first time beginning School
Year 2017-2018, the Board shall downgrade its Recognition status to Permit status;
4.2. If a law school under a Permit status should remain non­-compliant with these rules in
succeeding school years, the Board shall downgrade the Permit status to Phase-Out
status;
4.3. If a law school which is under Phase-Out status remains non­-compliant with these
rules in succeeding school years, the Board shall order its closure to take effect at the end
of the school year.
5. If a law school under sanction shall become compliant, its Recognition status shall be
restored. (Emphases supplied)
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And under LEBMO No. 2:
SEC. 31. Unfitness to Continue Operating a Law Program. A law school which is operated below
quality standards of a law school is unfit to continue operating a law program.
xxxx
2) A law school is substandard if the result of the inspection and evaluation of the law school and its
facilities by members of the Board or its staff shows that the law school has serious deficiencies
including a weak faculty as indicated, among others, by the fact that most of the members are
neophytes in the teaching of law[.] x x x
xxxx
SEC. 32. The imposable administrative sanctions are the following:
a) Termination of the law program (closing the law school);
b) Phase-out of the law program;
c) Provisional cancellation of the Government Recognition and putting the law program of the
substandard law school under Permit Status.
This master of laws degree requirement is reiterated in LEBMO No. 17, Series of 2018 (Supplemental Regulations
on the Minimum Academic Requirement of Master of Laws Degree for Deans and Law
Professors/Lecturers/Instructors in Law Schools), as follows:
xxxx
B) For Members of the Law Faculty
SEC. 6. For purposes of determining compliance with the minimum academic requirement of a Ll.M.
degree for the members of the law faculty in law schools required under Section 50 of LEBMO No. 1,
Series of 2011 and Resolution No. 2014-02, the required percentage of holders of Ll.M. shall be
computed based on the aggregate units of all courses/subjects offered during the semester by the law
school.
SEC. 7. Within thirty (30) days upon completion the effectivity this of this memorandum [sic], the
President of the HEI and the Dean of each law school shall jointly submit to the LEB separate
certification of the total teaching assignments/load for the 1st Semester and 2nd Semester of the
Academic Year 2017-2018 in the prescribed matrix form containing the names of every faculty member,
his/her highest academic law degree, qualification for , exemption from the Ll.M. requirement, if
applicable, courses/subjects assigned to teach, and academic weight of each course/subject, and a
disclosure whether or not the law school is compliant with the prescribed percentage of Ll.M. holders
for faculty members. Thereafter, the same certification shall be submitted for every regular semester
not later than 45 days from the start of the semester.
xxxx
SEC. 12. Law schools failing to meet the prescribed percentage of its faculty members required to have
Ll.M. degrees shall be imposed the appropriate administrative sanction specified under Resolution No.
2014-02. (Emphases supplied)
To be sure, under its supervisory and regulatory power, the LEB can prescribe the minimum qualifications of faculty
members. This much was affirmed by the Court when it approved the CLEBM's proposal to revise the powers of
LEB under R.A. No. 7662, but nevertheless retaining the LEB's power to "provide for minimum qualifications for
faculty members of law schools." As worded, the assailed clauses of Section 7(c) and 7(e) insofar as they give LEB
the power to prescribe the minimum qualifications of faculty members are in tune with the reasonable supervision
and regulation clause and do not infringe upon the academic freedom of law schools.
Moreover, this minimum qualification can be a master of laws degree. In University of the East v. Pepanio,281 the
Court held that the requirement of a masteral degree, albeit for tertiary education teachers, is not unreasonable.
Thus:
The requirement of a masteral degree for tertiary education teachers is not unreasonable. The
operation of educational institutions involves public interest. The government has a right to
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ensure that only qualified persons, in possession of sufficient academic knowledge and
teaching skills, are allowed to teach in such institutions. Government regulation in this field of
human activity is desirable for protecting, not only the students, but the public as well from ill­-
prepared teachers, who are lacking in the required scientific or technical knowledge. They may
be required to take an examination or to possess postgraduate degrees as prerequisite to
employment. (Emphasis supplied)
This was reiterated in Son v. University of Santo Tomas,282 as follows:
As early as in 1992, the requirement of a Master's degree in the undergraduate program professor's
field of instruction has been in place, through DECS Order 92 (series of 1992, August 10, 1992) or the
Revised Manual of Regulations for Private Schools. Article IX, Section 44, paragraph [1(a)] thereof
provides that college faculty members must have a master's degree in their field of instruction as a
minimum qualification for teaching in a private educational institution and acquiring regular status
therein.
DECS Order 92, Series of 1992 was promulgated by the DECS in the exercise of its [rule]-making
power as provided for under Section 70 of Batas Pambansa Blg. 232, otherwise known as the
Education Act of 1982. As such, it has the force and effect of law. In University of the East v. Pepanio,
the requirement of a masteral degree for tertiary education teachers was held to be not unreasonable
but rather in accord with the public interest.
xxxx
From a strict legal viewpoint, the parties are both in violation of the law: respondents, for maintaining
professors without the mandated masteral degrees, and for petitioners, agreeing to be employed
despite knowledge of their lack of the necessary qualifications. Petitioners cannot therefore insist to be
employed by UST since they still do not possess the required master's degrees; the fact that UST
continues to hire and maintain professors without the necessary master's degrees is not a ground for
claiming illegal dismissal, or even reinstatement. As far as the law is concerned, respondents are in
violation of the CHED regulations for continuing the practice of hiring unqualified teaching personnel;
but the law cannot come to the aid of petitioners on this sole ground. As between the parties herein,
they are in pari delicto.
xxxx
The minimum requirement of a master's degree in the undergraduate teacher's field of instruction has
been cemented in DECS Order 92, Series of 1992. Both petitioners and respondents have been
violating it. The fact that government has not cracked down on violators, or that it chose not to strictly
implement the provision, does not erase the violations committed by erring educational institutions,
including the parties herein; it simply means that government will not punish these violations for the
meantime. The parties cannot escape its concomitant effects, nonetheless. And if respondents knew
the overwhelming importance of the said provision and the public interest involved - as they now
fiercely advocate to their favor - they should have complied with the same as soon as it was
promulgated.
xxxx
In addition, the Court already held in Herrera-Manaoisi v. St. Scholastica's College that -
Notwithstanding the existence of the SSC Faculty Manual, Manaois still cannot legally
acquire a permanent status of employment. Private educational institutions must still
supplementarily refer to the prevailing standards, qualifications, and conditions set by the
appropriate government agencies (presently the Department of Education, the
Commission on Higher Education, and the Teclmical Education and Skills Development
Authority). This limitation on the right of private schools, colleges, and universities to select
and determine the employment status of their academic personnel has been imposed by
the state in view of the public interest nature of educational institutions, so as to ensure
the quality and competency of our schools and educators. (Internal citations omitted)
Thus, the masteral degree required of law faculty members and dean, and the doctoral degree required of a dean of
a graduate school of law are, in fact, minimum reasonable requirements. However, it is the manner by which the
LEB had exercised this power through its various issuances that prove to be unreasonable.
On this point, the amicus curiae, Dean Sedfrey M. Candelaria, while admitting that the masteral degree requirement
is a "laudable aim" of the LEB, nevertheless adds that the LEB-imposed period of compliance is unreasonable given
the logistical and financial obstacles:
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The masteral degree requirement is a laudable aim of LEB, but the possibility of meeting the LEB
period of compliance is unreasonable and unrealistic in the light of logistical and financial
considerations confronting the deans and professors, including the few law schools offering graduate
degrees in law.
To illustrate, to the best of my knowledge there are no more than six (6) graduate schools of law around
the country to service potential applicants. Those who have opted for graduate studies in law find it
very costly to fly to the venue. While one or two programs may have been delivered outside the
provider's home school venue to reach out to graduate students outside the urban centers,
pedagogical standards are often compromised in the conduct of the modules. This is even aggravated
by the fact that very few applicants can afford to go into full-time graduate studies considering that most
deans and professors of law are in law practice. Perhaps, LEB should work in consultation with PALS
in designing a cost-effective but efficient delivery system of any graduate program in law, [especially]
for deans and law professors.283
Further, the mandatory character of the master of laws degree requirement, under pain of downgrading, phase-out
and closure of the law school, is in sharp contrast with the previous requirement under DECS Order No. 27-1989
which merely prefer faculty members who are holders of a graduate law degree, or its equivalent. The LEB's
authority to review the strength or weakness of the faculty on the basis of experience or length of time devoted to
teaching violates an institution's right to set its own faculty standards. The LEB also imposed strict reportorial
requirements that infringe on the institution's right to select its teachers which, for instance, may be based on
expertise even with little teaching experience. Moreover, in case a faculty member seeks to be exempted, he or she
must prove to the LEB, and not to the concerned institution, that he or she is an expert in the field, thus, usurping
the freedom of the institution to evaluate the qualifications of its own teachers on an individual basis.
Also, while the LEB requires of faculty members and deans to obtain a master of laws degree before they are
allowed to teach and administer a law school, respectively, it is ironic that the LEB, under Resolution No. 2019-406,
in fact considers the basic law degrees of Ll.B. or J.D. as already equivalent to a doctorate degree in other non-law
academic disciplines for purposes of "appointment/promotion, ranking, and compensation."
In this connection, the LEB also prescribes who may or may not be considered as full-time faculty, the classification
of the members of their faculty, as well as the faculty load, including the regulation of work hours, all in violation of
the academic freedom of law schools. LEBMO No. 2 provides:
SEC. 33. Full-time and Part-time Faculty. There are two general kinds of faculty members, the full-time
and part-time faculty members.
a) A full-time faculty member is one:
1) Who possesses the minimum qualification of a member of the faculty as prescribed in
Sections 50 and 51 of LEBMO No. 1;
2) Who devotes not less than eight (8) hours of work for the law school;
3) Who has no other occupation elsewhere requiring regular hours of work, except when
permitted by the higher education institution of which the law school is a part; and
4) Who is not teaching full-time in any other higher education institution.
b) A part-time faculty member is one who does not meet the qualifications of a full-time professor
as enumerated in the preceding number.
SEC. 34. Faculty Classification and Ranking. Members of the faculty may be classified, in the
discretion of the higher education institution of which the law school is a part, according to academic
proceeding, training and scholarship into Professor, Associate Professor, Assistant Professor, and
Instructor.
Part-time members of the faculty may be classified as Lecturers, Assistant Professorial Lecturers,
Associate Professorial Lecturers and Professorial Lecturers. The law schools shall devise their scheme
of classification and promotion not inconsistent with these rules.
SEC. 35. Faculty Load. Generally, no member of the faculty should teach more than 3 consecutive
hours in any subject nor should he or she be loaded with subjects requiring more than three
preparations or three different subjects (no matter the number of units per subject) in a day.
However, under exceptionally meritorious circumstances, the law deans may allow members of the
faculty to teach 4 hours a day provided that there is a break of 30 minutes between the first 2 and the
last 2 hours. (Emphases supplied)
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The LEB is also allowed to revoke permits or recognitions given to law schools when the LEB deems that there is
gross incompetence on the part of the dean and the corps of professors or instructors under Section 41.2(d) of
LEBMO No. 1-2011, thus:
SEC. 41.2. Permits or recognitions may be revoked, or recognitions reverted to permit status for just
causes including but not limited to:
a) fraud or deceit committed by the institution in connection with its application to the Board;
b) the unauthorized operation of a school of law or a branch or an extension of a law school;
c) mismanagement or gross inefficiency in the operation of a law school;
d) gross incompetence on the part of the dean and the corps of professors or instructors;
e) violation of approved standards governing institutional operations, announcements and
advertisements;
f) transfer of the school of law to a site or location detrimental to the interests of the students and
inimical to the fruitful and promising study of law;
g) repeated failure of discipline on the part of the student body; and
h) other grounds for the closure of schools and academic institutions as provided for in the rules
and regulations of the Commission on Higher Education.284 (Emphasis supplied)
In this regard, the LEB is actually assessing the teaching performance of faculty members and when such is
determined by the LEB as constituting gross incompetence, the LEB may mete out penalties, thus, usurping the law
school's right to determine for itself the competence of its faculty members.
4 Section 2, par. 2 and Section 7(g)
on legal apprenticeship and legal internship
While the clause "legal apprenticeship" under Section 2, par. 2 and Section 7(g) on legal internship, as plainly
worded, cannot immediately be interpreted as encroaching upon institutional academic freedom, the manner by
which LEB exercised this power through several of its issuances undoubtedly show that the LEB controls and
dictates upon law schools how such apprenticeship and internship programs should be undertaken.
Pursuant to its power under Section 7(g), the LEB passed Resolution No. 2015-08 (Prescribing the Policy and Rules
in the Establishment of a Legal Aid Clinic in Law Schools) wherein it classified legal aid clinics into three types: (1) a
legal aid clinic which is an outreach project of a law school; (2) a legal aid clinic which entitles the participating
student to curricular credits; and (3) a legal aid clinic that entitles the participating student to avail of the privileges
under Rule 138-A of the Rules of Court.
Pertinent to the third type, the LEB requires the law schools to comply with the following rules:
xxxx
b) Implementing Rules
(1) A LAC should be established by the law school.
(2) The law school should formulate its Clinical Legal Education Program and submit it to
the Legal Education board for its assessment and evaluation.
(3) If Legal Education Board finds the Clinical Legal Education Program to be proper and
in order it shall endorse it to the Supreme Court for its approval.
(4) Once approved by the Supreme Court, fourth (4th) year law students in that law school
enrolled in it shall be allowed to practice law on a limited manner pursuant to the provisions of
Rule 138-A of the Rules of Court. (Emphasis supplied)
Further, Section 24(c), Article IV of LEBMO No. 2 prescribes the activities that should be included in the law school's
apprenticeship program, as follows:
Article IV
Law School: Administrative Matters and Opening of Branches or Extension Classes
SEC. 24. Administrative Matters.
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c) Apprenticeship Program. The apprenticeship program should be closely supervised by the Dean or a
member of the faculty assigned by the Dean to do the task. The apprenticeship program should at least
include any of the following activities:
1) Preparation of legal documents
2) Interviewing clients
3) Courtroom observation and participation
4) Observation and assistance in police investigations, inquests and preliminary investigations
5) Legal counseling
6) Legal assistance to detention prisoners
7) For working students, participation in the legal work of the legal section or office of the
employer-entity x x x (Emphasis supplied)
Relatedly, Section 59(d) of LEBMO No. 1-2011, provides:
Article IV
Grading System
SEC. 59. Grading System. - The law school, in the exercise of academic freedom, shall devise its own
grading system provided that on the first day of classes, the students are apprised of the grading
system and provided further that the following are observed:
xxxx
(d) When apprenticeship is required and the student does not complete the mandated number of
apprenticeship hours, or the person supervising the apprenticeship program deems the performance of
the student unsatisfactory, the dean shall require of the student such number of hours more in
apprenticeship as will fulfill the purposes of the apprenticeship program.285 (Emphasis supplied)
These provisions unduly interfere with the discretion of a law school regarding its curriculum, particularly its
apprenticeship program. Plainly, these issuances are beyond mere supervision and regulation.
III.
Conclusion
In general, R.A. No. 7662, as a law meant to uplift the quality of legal education, does not encroach upon the Court's
jurisdiction to promulgate rules under Section 5(5), Article VIII of the Constitution. It is well-within the jurisdiction of
the State, as an exercise of its inherent police power, to lay down laws relative to legal education, the same being
imbued with public interest.
While the Court is undoubtedly an interested stakeholder in legal education, it cannot assume jurisdiction where it
has none. Instead, in judicial humility, the Court affirms that the supervision and regulation of legal education is a
political exercise, where judges are nevertheless still allowed to participate not as an independent branch of
government, but as part of the sovereign people.
Nevertheless, inasmuch as the power to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged is settled as belonging exclusively to the Court, certain
provisions and clauses of R.A. No. 7662 which, by its plain language and meaning, go beyond legal education and
intrude upon the Court's exclusive jurisdiction suffer from patent unconstitutionality and should therefore be struck
down.
Moreover, the exercise of the power to supervise and regulate legal education is circumscribed by the normative
contents of the Constitution itself, that is, it must be reasonably exercised. Reasonable exercise means that it should
not amount to control and that it respects the Constitutionally­guaranteed institutional academic freedom and the
citizen's right to quality and accessible education. Transgression of these limitations renders the power and the
exercise thereof unconstitutional.
Accordingly, the Court recognizes the power of the LEB under its charter to prescribe minimum standards for law
admission. The PhiLSAT, when administered as an aptitude test to guide law schools in measuring the applicants'
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aptness for legal education along with such other admissions policy that the law school may consider, is such Doctor unless he/she has passed the PhiLSAT taken within two years before the start of studies for the
minimum standard. basic law course;

However, the PhiLSAT presently operates not only as a measure of an applicant's aptitude for law school. The b. LEBMC No. 18-2018 which prescribes the passing of the PhiLSAT as a prerequisite for admission to
PhiLSAT, as a pass or fail exam, dictates upon law schools who among the examinees are to be admitted to any law law schools; Accordingly, the temporary restraining order issued on March 12, 2019 enjoining the Legal
program. When the PhiLSAT is used to exclude, qualify, and restrict admissions to law schools, as its present design Education Board from implementing LEBMC No. 18-2018 is made PERMANENT. The regular
mandates, the PhiLSAT goes beyond mere supervision and regulation, violates institutional academic freedom, admission of students who were conditionally admitted and enrolled is left to the discretion of the law
becomes unreasonable and therefore, unconstitutional. In striking down these objectionable clauses in the PhiLSAT, schools in the exercise of their academic freedom; and
the State's inherent power to protect public interest by improving legal education is neither emasculated nor
compromised. Rather, the institutional academic freedom of law schools to determine for itself who to admit c. Sections 15, 16, and 17 of LEBMO No. 1-2011;
pursuant to their respective admissions policies is merely protected. In turn, the recognition of academic discretion
comes with the inherent limitation that its exercise should not be whimsical, arbitrary, or gravely abused. 2. The act and practice of the Legal Education Board of dictating the qualifications and classification of faculty
members, dean, and dean of graduate schools of law in violation of institutional academic freedom on who
In similar vein, certain LEB issuances which exceed the powers granted under its charter should be nullified for may teach, particularly:
being ultra vires.
a. Sections 41.2(d), 50, 51, and 52 of LEBMO No. 1-2011;
As in all levels and areas of education, the improvement of legal education indeed deserves serious attention. The
parties are at a consensus that legal education should be made relevant and progressive. Reforms for a more b. Resolution No. 2014-02;
responsive legal education are constantly introduced and are evolving. The PhiLSAT, for instance, is not a perfect
initiative. Through time and a better cooperation between the LEB and the law schools in the Philippines, a c. Sections 31(2), 33, 34, and 35 of LEBMO No. 2;
standardized and acceptable law admission examination may be configured. The flaws which the Court assessed to
d. LEBMO No. 17-2018; and
be unconstitutional are meanwhile removed, thereby still allowing the PhiLSAT to develop into maturity. It is, thus,
strongly urged that recommendations on how to improve legal education, including tools for screening entrants to 3. The act and practice of the Legal Education Board of dictating the policies on the establishment of legal
law school, reached possibly through consultative summits, be taken in careful consideration in further issuances or apprenticeship and legal internship programs in violation of institutional academic freedom on what to teach,
legislations. particularly:
WHEREFORE, the petitions are PARTLY GRANTED. a. Resolution No. 2015-08;
The jurisdiction of the Legal Education Board over legal education is UPHELD. b. Section 24(c) of LEBMO No. 2; and
The Court further declares: c. Section 59(d) of LEBMO No. 1-2011.
As CONSTITUTIONAL: SO ORDERED.
1. Section 7(c) of R.A. No. 7662 insofar as it gives the Legal Education Board the power to set the standards Bersamin, C. J., I join the separate dissenting and concurring opinion of J. Leonen.
of accreditation for law schools taking into account, among others, the qualifications of the members of the
faculty without encroaching upon the academic freedom of institutions of higher learning; and Carpio, Carandang, Inting, and Zalameda, JJ., concur.
2. Section 7(e) of R.A. No. 7662 insofar as it gives the Legal Education Board the power to prescribe the Peralta, J., no part.
minimum requirements for admission to legal education and minimum qualifications of faculty members
without encroaching upon the academic freedom of institutions of higher learning. Perlas-Bernabe, J., Please see separate concurring opinion.
As UNCONSTITUTIONAL for encroaching upon the power of the Court: Leonen, J., See separate dissenting and concurring opinion.
1. Section 2, par. 2 of R.A. No. 7662 insofar as it unduly includes "continuing legal education" as an aspect of Jardeleza, J., Please see separate concurring and dissenting opinion.
legal education which is made subject to Executive supervision and control;
Caguioa, J., Please see separate concurring.
2. Section 3(a)(2) of R.A. No. 7662 and Section 7(2) of LEBMO No. 1-2011 on the objective of legal education
to increase awareness among members of the legal profession of the needs of the poor, deprived and A. Reyes, Jr., J., Please see my concurring opinion.
oppressed sectors of society;
Gesmundo, J., Please separate concurring and dissenting opinion.
3. Section 7(g) of R.A. No. 7662 and Section 11(g) of LEBMO No. 1-2011 insofar as it gives the Legal
Education Board the power to establish a law practice internship as a requirement for taking the Bar; and Hernando, J., on official business.

4. Section 7(h) of R.A. No. 7662 and Section 11(h) of LEBMO No. 1-2011 insofar as it gives the Legal Lazaro-Javier, J., Please see concurring and dissenting opinion.
Education Board the power to adopt a system of mandatory continuing legal education and to provide for the
mandatory attendance of practicing lawyers in such courses and for such duration as it may deem necessary.
NOTICE OF JUDGMENT
As UNCONSTITUTIONAL for being ultra vires:
Sirs/Mesdames:
1. The act and practice of the Legal Education Board of excluding, restricting, and qualifying admissions to
law schools in violation of the institutional academic freedom on who to admit, particularly: Please take notice that on September 10, 2019 a Decision, copy attached herewith, was rendered by the Supreme
Court in the above-entitled cases, the original of which was received by this Office on November 29, 2019 at 3:40
a. Paragraph 9 of LEBMO No. 7-2016 which provides that all college graduates or graduating students p.m.
applying for admission to the basic law course shall be required to pass the PhiLSAT as a requirement
for admission to any law school in the Philippines and that no applicant shall be admitted for enrollment Very truly yours,
as a first year student in the basic law courses leading to a degree of either Bachelor of Laws or Juris

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2/1/24, 8:12 PM G.R. No. 180745 2/1/24, 8:12 PM G.R. No. 180745

Today is Thursday, February 01, 2024 Baguio Residential Property 1995 [P]2 Million

Baguio Residential Property 1994 [P]2 Million

Dump Trucks 1991 [P]1.6 Million

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive Elf 1991 [P]800,000
Van 1999 [P]680,000

Van 1999 [P]850,000

Car 2002 [P]800,00016

Finally, Atty. Acuña and Pizarro averred that Iglesias made false representations when she dechtred in her letter
to then President Gloria Macapagat-Arroyo that she was taking up Masters in Customs Administration, instead of
Masters in Management.17 They also alleged that Iglesias falsified her Personal Data Sheet when she antedated its
Manila execution.18

THIRD DIVISION They charged Iglesias with the following:

[ G.R. No. 180745. August 30, 2017 ] a) Making untruthful statements in her SAL[N]s a,nd failing to disclose all of her properties in her SAL[N]s
(Article 171(4)19 of the Revised Penal Code);
ALBERTA DE JOYA IGLESIAS, PETITIONER, VS. THE OFFICE OF THE OMBUDSMAN, GEORGE M. JEREOS,
ROBERTO G. GEOTINA, JUAN T. TAN, KRISTINE MORALES, AND ALBERTO LINA, RESPONDENTS. b) Failing to submit her SAL[N]s as required by Sections (sic) 11 in relation to Section 820 of Republic Act No.
6713 and Section 721 of Republic Act No. 3019;
DECISION
c) Engaging in acts of dishonesty and misconduct by making false representations about her education to Her
LEONEN, J.: Excellency, Gloria Macapagal Arroyo and by indicating a false date on her Personal Data Sheet; and

In observing administrative due process, it is essential that the accused be accorded the right to be informed of
the accusations against him or her. Fair play requires that the accused be equipped with the necessary information
for the preparation of his or her defense.
This is a Petition for Review1 under Rule 45 of the Rules of Court, praying that the December 22, 2006
Decision2 and November 21, 2007 Resolution3 of the Court of Appeals in CA-G.R. SP No. 89585 be nullified and set
aside.4 The Court of Appeals affirmed the Office of the Ombudsman February 7, 2005 Resolution5 and the Office of
the Deputy Ombudsman for Luzon February 21, 2005 Joint Order6 in OMB L-C-04-0083-B and OMB­L-A-04-0057-B,
dismissing petitioner Alberta de Joya Iglesias (Iglesias) from service.7 Petitioner prays that judgment be rendered
absolving her of any criminal and administrative liability and reinstating her to her former position as Acting District
Collector in the Port of San Fernando.8
d) [A]cquiring, during her incumbency an amount of property and/or money manifestly out of proportion to her
salary and to her other lawful income (Section 8,22 [Republic Act No.] 3019); and
e) [C]oncealing unlawfully acquired property (Sections 2 and 12 in relation to Section 1(b)(1-3)23 of Republic
Act No. 1379)[.]24
The administrative case was docketed as OMB-L-A-04-0057-B, while the criminal case was docketed as OMB-
L-C-04-0083-B.25
On April 12, 2004, Iglesias filed her Counter-Affidavit with Counter-­Complaint26 in the administrative case. She
produced copies of her filed annual SALNs since 1989 and attached them to her Counter-Affidavit.27

Petitioner Iglesias was employed as Acting District Collector by the Bureau of Customs on October 1, 2002. She
was assigned at the Port of San Fernando, La Union by Commissioner Antonio Bernardo.9
On January 28, 2004, the Department of Finance, through Atty. Leon L. Acuña (Atty. Acuña) and Troy Francis C.
Pizarro (Pizarro), filed a Complaint-Affidavit10 against Iglesias before the Office of the Ombudsman.11 Atty. Acuña
and Pizarro claimed that Iglesias failed to file her Statements of Assets, Liabilities, and Net Worth (SALNs) prior to
the year 2000.12
They also alleged that Iglesias made false entries in her 2000, 2001, and 2002 SALNs with respect to two (2)
real properties in Quezon City and Pangasinan. The Quezon City property's tax declarations revealed that Iglesias
1aшphi1
Iglesias countered that she did not falsify the mode of acquisition of the Pangasinan and Quezon City properties
in her SALNs.28 Iglesias and her sister, Rosario de Joya-Ablang (Rosario), inherited the Quezon City property from
their parents.29 She "merely bought out her sister's share of their joint inherited property[.]"30 Regarding the
Pangasinan property, Iglesias reasoned that she acquired the property through purchase and donation when her
mother, Marina, sold it to her for an amount well below its true value.31
Iglesias explained that she did not declare the three (3) Pangasinan properties because these were classified as
public lands and the Department of Environment and Natural Resources had yet to award the properties to her. She
contended that she was merely considered an applicant for the grant of the public lands.32
On the alleged illegally acquired properties, Iglesias disclosed that she acquired these properties either by

purchased the property on August 1, 1996 from the spouses Rosario and Elpidio Ablang. Likewise, the Pangasinan
property's Transfer Certificate of Title was issued by virtue of a deed of sale showing that she purchased a portion of
this property from Marina Lopez de Joya (Marina). However, in her SALNs, Iglesias indicated that these properties
were acquired through inheritance.13
Atty. Acuña and Pizarro also discovered three (3) real properties in Pangasinan under Iglesias' name that were
not declared in her SALNs.14 They further asserted that Iglesias acquired several real and personal properties from
1999 to 2002 amounting to P15,230,000.00, which was disproportionate to her lawful source of income. They
contended that the following properties were unlawfully acquired:15
purchase or inheritance. She obtained a loan of P9,000,000.00 from Philippine National Bank to buy out Rosario's
share and to purchase the Novaliches and Baguio properties. She also sold a property in Baguio to purchase the
Parañaque property. To pay her obligations, she leased her Quezon City property from July 15, 2000 to January
2004. She acquired another loan of P2,000,000.00 from Philippine National Bank-Dagupan Branch to start her
trucking business.33
Iglesias asserted that the foreclosure of the Quezon City property for non-payment of her loan "belies the false
accusation . . . that [she] is a corrupt government official[.]"34

Iglesias argued that her educational attainment was correctly stated in her resume. She initially took up a
Kind of Property Year Purchased Acquisition Cost master's degree in Customs Administration but was not able to finish the degree and eventually shifted to
Management.35 Lastly, the false date on her Personal Data Sheet was a typographical error.36
Parañaque Residential Property 1999 [P]3 Million

Novaliches Residential Property 1997 [P]3.5 Million

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She claimed that the allegations against her were false and baseless and that Atty. Acuña and Pizarro should be
held "criminally liable for malicious prosecution" and "for making untruthful statements under oath in their Complaint-
Affidavit."37
Iglesias filed a Motion for Extension of Time to File Counter­Affidavit in the criminal case. However, she was still
unable to file her counter-affidavit.38
On April 15, 2004, the Office of the Deputy Ombudsman for Luzon issued an Order39 in connection with the
administrative case, preventively suspending Iglesias for six (6) months while the investigation was on­going.40
On August 27, 2004, the Office of the Deputy Ombudsman for Luzon issued an Order requiring the parties to
present their arguments in their respective position papers. Iglesias submitted her position paper on September 20,
2004 reiterating her arguments. The Department of Finance submitted its position paper on October 5, 2004 and
disclosed new information regarding the business interest of Iglesias in Golden Grove Realty and Development
Corporation. Its position paper also included records of cases filed against lglesias.41
On October 12, 2004, Graft Investigation and Prosecution Officer I Robert C. Reñido (Prosecution Officer
Reñido) of the Office of the Deputy Ombudsman for Luzon issued a Joint Resolution42 resolving the administrative
and criminal cases. Prosecution Officer Reñido considered Iglesias' Counter-Affidavit in the administrative cae as
her counter-affidavit in the criminal case "[f]or purposes of exigency and in the interest of justice and due process."43
Prosecution Officer Reñido found that Atty. Acuña and Pizarro did not conduct an intensive investigation before
they filed the complaint against Iglesias,44 who was able to submit authentic copies of her filed SALNs from 1989 to
1999.45
He gave merit to Iglesias' explanation that the Quezon City and Pangasinan properties were part of her
inheritance from her parents Since Iglesias inherited a great portion of the Quezon City property from her parent,
she did not err in declaring the property as acquired through inheritance.46 Meanwhile, the Pangasinan property was
intended to be donated to Iglesias by her mother. They relied on the credibility of the lawyer who made a deed of
sale instead of a deed of donation to facilitate the transaction.47
Prosecution Officer Reñido held that Iglesias was correct in not declaring the three (3) Pangasinan properties in
her SALNs, as she had not yet acquired them,48 On thalleged illegally acquired properties, he stated that Iglesias
"was able to shed light on how she was able to lawfully acquire [these] assets."49
On the allegation that Iglesias falsified her educational attainment, Prosecution Officer Reñido ruled that Iglesias
had sufficiently proven that she shifted to Management upon learning that the Civil Service Commission did not
require a specific genre of a master's degree.50 He also found that the alleged falsification of Iglesias' Personal Data
Sheet was a mere typographical error.51
Prosecution Officer Reñido recommended the dismissal of both cases.52 Likewise, he recommended that the
preventive suspension be lifted upon the Joint Resolution's approval.53
Director Emilio A. Gonzalez III of the Office of the Deputy Ombudsman for Luzon approved the Joint Resolution.
However, Deputy Ombudsman for Luzon Victor C. Fernandez recommended its disapproval.54
On February 7, 2005, the Office of the Ombudsman issued a Resolution55 reviewing the October 12, 2004 Joint
Resolution. Ombudsman Simeon V. Marcelo (Ombudsman Marcelo) held that Iglesias failed to justify the substantial
increase in her net worth. In just one (1) year, her net worth as declared in her SALN increased from P245,000.00 in
1989 to P1,685,000.00 in 1990.56
Ombudsman Marcelo discovered that Iglesias' cash declaration escalated from P250,000.00 in her 1991 SALN
to P1,770,000.00 in her 1992 SALN. She also acquired the Baguio, Parañaque, and Novaliches properties from
1994 to 2000.57
In examining Iglesias' SALNs, Ombudsman Marcelo found that she obtained housing loans of P14,000,000.00
in 1994, P26,000,000.00 in 1998, and P29,000,000.00 in 1999.58 Since the housing loans were not supported by
evidence, Ombudsman Marcelo considered them "spurious or non-existent, meant only to cover up the rapidly
increasing assets of [Iglesias]."59
According to Ombudsman Marcelo, Iglesias also falsified her Personal Data Sheet "when she denied having
any criminal charges ever filed against her . . . despite evidence to the contrary."60 Iglesias had two (2) pending
estafa cases and three (3) dismissed cases before the lower courts, as stated in the National Bureau of
Investigation's May 22, 2001 Certification.61 She likewise committed falsification when she did not declare the true
value of the Pampanga property and reported its worth at only P50,000.00.62
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As for Iglesias' allegation of leasing her Quezon City property and starting a trucking business, Ombudsman
Marcelo stated that there was np evidence presented to support her claims. She also failed to declare the alleged
trucking business in her SALN.63
Ombudsman Marcelo held that the acts of Iglesias constitute dishonesty and grave misconduct, punishable by
dismissal from service under Rule IV, Section 52(A) of the Uniform Rules on Administrative Cases in the Civil
Service, in relation to Book V, Sections 9 and 22 of the Administrative Code of 1987.64
The dispositive portion of the Resolution read:
WHEREFORE, the 12 October 2004 Joint Resolution is DISAPPROVED. Respondent ALBERTA
DE JOYA-IGLESIAS is hereby found guilty of the administrative offense of DISHONESTY and GRAVE
MISCONDUCT. Thus, she is ordered DISMISSED from the service, with cancellation of eligibility,
forfeiture of leave credits and retirement benefits, and disqualification for reemployment in the
government service.
Moreover, sufficient probable cause exists to hold respondent ALBERTA DE JOYA IGLESIAS liable
for violation of Art. 171 (Falsification) and Art. 183 (Perjury) of the Revised Penal Code. Let the
Informations charging her with the said offenses be forthwith filed against her before the appropriate
court.
Additionally, let a Petition for Forfeiture of Unlawfully Acquired Properties be filed before the proper
court against respondent in view of the herein found accumulation of unexplained wealth.
The Field Investigation Office (FIO) is hereby ordered to investigate the matter regarding the false
valuation made on the Deed of Sale covering the Pampanga property transferred in favor of
respondent and secure the necessary documentary evidence for the purpose of filing a criminal
complaint for Falsification against her.
SO ORDERED.65 (Emphasis in the original)
Iglesias moved for reconsideration,66 which was denied by the Office of the Deputy Ombudsman for Luzon in its
February 21, 2005 Joint Order.67
Iglesias appealed the February 7, 2005 Resolution of the Office of the Ombudsman and the February 21, 2005
Joint Order of the Office of the Deputy Ombudsman for Luzon before the Court of Appeals.68
Iglesias argued that she was denied administrative due process. She claimed that there was failure to meet the
substantial evidence requirement in administrative proceedings.69 Further, she asserted that her defense of denial
and the presence of mitigating circumstances should have been considered by the Office of the Ombudsman and
the Office of the Deputy Ombudsman for Luzon.70
In its December 22, 2006 Decision,71 the Court of Appeals affirmed the assailed February 7, 2005 Resolution
and February 21, 2005 Joint Order.72 It held that there was no denial of due process since Iglesias was able to
explain her side in her Counter-Affidavit and her Motion for Reconsideration of the February 7, 2005 Resolution.73
The Court of Appeals declared that the assailed Resolution and Joint Order rest on substantial evidence; hence,
the Office of the Ombudsman and the Office of the Deputy Ombudsman for Luzon did not commit any grave abuse
of discretion.74 It added that Iglesias' defense of denial and the alleged mitigating circumstances were bereft of
merit.75
Iglesias moved for reconsideration, which was denied76 by the Court of Appeals in its November 21, 2007
Resolution.77
Hence, on January 17, 2008, Iglesias filed this Petition for Review78 with an application for temporary restraining
order against the Office of the Ombudsman and the Department of Finance officers, namely, Commissioner George
M. Jereos (Commissioner Jereos), Deputy Commissioner Roberto G. Geotina (Deputy Commissioner Geotina),
Acting Collector Juan T. Tan (Tan), Acting Disbursement Officer Kristine Morales (Morales), and Commissioner
Alberto Lina (Commissioner Lina) (collectively, respondents).
Petitioner alleges that respondent Tan took her place as Acting District Collector during her preventive
suspension. However, after the termination of her six (6)-month suspension, she was not automatically reinstated to
her position and respondent Tan was confirmed as Acting District Collector. Petitioner claims that she was demoted
as Deputy Collector for Operations without due process.79
Petitioner asserts that respondents Commissioner Jereos and Deputy Commissioner Geotina immediately
implemented the dismissal order while her motion for reconsideration of the February 7, 2005 Resolution was still
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pending before the Office of the Deputy Ombudsman for Luzon. Thus, respondent Morales immediately withheld her
salary and other benefits.80 Respondent Commissioner Lina was included as a nominal party-respondent.81
Petitioner prays that the December 22, 2006 Decision and November 21, 2007 Resolution of the Court of
Appeals be nullified and set aside. Petitioner likewise prays that judgment be rendered absolving her of any criminal
and administrative liability and reinstating her to her former position as Acting District Collector at the Port of San
Fernando.82
Petitioner raises the following issues:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION FOR CERTIORARI
II.
WHETHER OR NOT THE PETITIONER WAS DENIED DUE PROCESS OF LAW
III.
WHETHER PETITIONER WAS DENIED OF HER RIGHT TO BE INFORMED OF THE CHARGES
AGAINST HER83
Petitioner argues that she was not given an opportunity to refute the new accusations and charges against her
which were not stated in the Complaint-Affidavit. Her filing of a Motion for Reconsideration did "not address the fact
that she was never informed of the true allegations against her."84 Thus, she claims that "her right to be informed of
the accusations against her and to be afforded with due process of law has been violated."85
On April 25, 2000, respondents officers of the Department of Finance, through the Office of the Solicitor
General, filed their Comment86 and prayed for the denial of the Petition.87 They assert that petitioner was properly
informed of the charges against her.88 Moreover, her right to due process was not violated since she was given
enough opportunity to counter the allegations:
In this case, petitioner was able to file her Counter-Affidavit dated April 6, 2004 in OMB-L-A-04-
0057-B. She was likewise given the opportunity to file her counter-affidavit in OMB-L-C-04-0083-B
but she failed to do so despite her having filed a Motion for Extension of Time to File Counter-
Affidavit dated March 19, 2004. Based on the Comment dated September 21, 2005 of the Office of
the Ombudsman, the petitioner even filed a Motion for Early Resolution and Lifting of Preventive
Suspension, and a Position Paper. Moreover, she likewise filed her Motion for Reconsideration
dated February 14, 2005.
Clearly, petitioner was given opportunity to explain her side and she moved for reconsideration of the challenged
Resolution dated February 7, 2005. She was never denied her right to due process.89 (Emphasis in the original)
On May 5, 2008, respondent Office of the Ombudsman filed its Comment90 and likewise prayed for the denial of
the Petition. It argues that the Court of Appeals was correct in ruling "that petitioner was afforded due process by the
Office of the Ombudsman and [that] the questioned resolutions were supported by substantial evidence and based
on the records and evidence at hand."91
The Office of the Ombudsman counters that petitioner was not denied due process since "petitioner had the
opportunity to present her side, submit countervailing evidence to refute the Department of Finance's claims and
even move for a reconsideration of the decision."92 Further, it asserts that "petitioner was sufficiently informed of the
charges against her as shown in her Counter-Affidavit, Motion for Early Resolution and Lifting of Preventive
Suspension, Position Paper and the assailed Resolutions of the Office of the Ombudsman."93
On May 14, 2008, petitioner filed her Reply and reiterated that she was denied due process since she was not
informed of the offenses charged against her.94
On July 8, 2009, this Court issued a Resolution95 requiring the parties to submit their respective memoranda.
Petitioner filed her Memorandum96 on September 18, 2009, while respondent Office of the Ombudsman filed its
Memorandum97 on October 1, 2009. Both parties reiterated their arguments in their earlier pleadings. Respondents
officers of the Department of Finance failed to file their memorandum. 1aшphi1
On September 30, 2010, petitioner also filed a Supplement to the Supplemental Memorandum.98
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On October 17, 2011, petitioner again filed a Supplemental Memorandum.99 She stated that Branch 45,
Metropolitan Trial Court of Pasay City issued a Joint Decision100 acquitting her of three (3) counts of perjury in
Criminal Case Nos. 05-1160, 05-1161, and 05-1162.101 The perjury cases alleged that petitioner made untruthful
statements in connection with three (3) real properties on her December 31, 2000 SALN.102 Petitioner contends that
since she was able to counter the anomalies in her statements, she "should only be held liable for simple neglect of
duty."103
On January 21, 2015, petitioner filed her last Supplemental Memorandum.104 Petitioner informed this Court that
the other falsification and perjury cases related to the present case were dismissed by the trial courts, particularly:
a. Criminal Case No. Q-05-137 (pending before the Regional Trial Court of Quezon City, Branch 77) -
dismissed on 30 January 2008;
b. Criminal Cases (sic) Nos. 05-1160 to 1162 (For Perjury, pending before the Metropolitan Trial Court
of Pasay City, Branch 45) - acquitting the accused on 21 June 2011[;]
c. Criminal Case Nos. (sic) 421447-62-CR (For Perjury, pending before the Metropolitan Trial Court of
Manila, Branch 1) - acquitting the accused on 30 April 2014[;]
d. Criminal Case No. 05-238700 (For Falsification of Public Document, pending before the Metropolitan
Trial Court of Manila, Branch 30) ­acquitting the accused on 23 July 2014[;] [and]
e. Criminal Case Nos. 40970 to 72 (For Perjury, pending before the Municipal Trial Court in Cities of
San Fernando City, La Union) - acquitting the accused on 17 October 2014.105
This Court resolves the main issue of whether or not petitioner was denied of administrative due process when
the Resolution dismissing her appeal was based on allegations that were not contained in the Complaint. Resolving
this main issue will pass on the issues of whether or not petitioner was denied of her right to be informed of the
charges against her and whether or not petitioner was denied of her right to due process. Since these issues are
interrelated, they will be addressed jointly.
Petitioner's contention has no merit.
Administrative due process demands that the party being charged is given an opportunity to be heard.106 Due
process is complied with "if the party who is properly notified of allegations against him or her is given an opportunity
to defend himself or herself against those allegations, and such defense was considered by the tribunal in arriving at
its own independent conclusions."107
In F/O Ledesma v. Court of Appeals:108
Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain
or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him constitute the minimum requirements of due process. The
essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain
one's side, or an opportunity to seek a reconsideration of the action or ruling complained of.109
An important component of due process is the right of the accused to be informed of the nature of the charges
against him or her.110 A proper appraisal of the accusations would give the accused an opportunity to adequately
prepare for his or her defense. Otherwise, substantial justice would be undermined.111
In this case, petitioner insists that the February 7, 2005 Resolution of the Office of the Ombudsman was based
on new accusations that were not included in the Complaint Affidavit filed by Atty. Acuña and Pizarro. She anchors
her argument on the findings of the Ombudsman:
"In her first year in the government service, respondent reported a net worth of P245,000.00 in her
1989 SALN, which swiftly grew to P1,685,000.00 during her second year (1990 SALN). The additional
P1,440,000.00 accumulated by respondent is a 60% jump from her 1989 net worth. During that same
period, respondent was able to purchase a property in Paco, Manila, in the amount of P800,000.00,
acquired additional jewelry worth P250,000.00, and maintained cash in the bank in the amount of
P400,000.00. This sudden upsurge in respondent's net worth, within the short period of one (1) year, is
unjustified considering that she had no other employment, business activity or financial interests from
which the acquisitions can be funded other than her employment in the Bureau of Customs.
"Respondent's 1991 and 1992 SALN likewise reflected the meteoric rise of her assets. From the
declared cash of P250,000.00 in 1991, the same soared high to the amount of P1,770,000.00 which
was not sufficiently justified or explained by her income from the government, or her reported total new
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loans of P610,000.00, consisting of jewelry loan in the amount of P110,000.00 and an agricultural loan
in the amount of P500,000.00.
"Apart from the properties in New Manila, Quezon City, and Pampanga which respondent justified
as to have been inherited by her from her parents, respondent is likewise the owner of several
properties located in Baguio City, Parañaque City, and Novaliches, Quezon City, which she acquired
beginning 1994 to 2000."112 (Emphasis in the original)
Considering the above, this Court finds that there was a violation of due process with respect to the other
charges which were not in the original complaint. This Court sternly reminds the Ombudsman that he cannot add
new findings which were not part of the original complaint. To do so would violate the right of the accused to due
process.
However, there were charges in the original complaint which should prosper. A reading of the Office of the
Ombudsman Resolution reveals that she was dismissed from service not solely on the irregularities found in her
1989 to 1999 SALNs but also because of anomalies found in her 2000 to 2002 SALNs, which she was informed of
and was given the opportunity to refute. Petitioner conveniently left out in her pleadings the following findings of the
Office of the Ombudsman:
It should be noted, however, that respondent has two (2) Baguio properties indicated in her 2000-
2002 SALNs. The first Baguio property was acquired in 1995, thus, its declaration in her 1996 SALN.
From 1996-1999, she had been maintaining that same property. However, as evidenced by her 2000
SALN, she acquired another property in Baguio. Presuming that, as claimed by respondent, the PNB
loan paid for the acquisition of the first Baguio property, with what funds did she acquire the second
Baguio property?
Moreover, on the same year, respondent also acquired the Para[ñ]aque property. Although
respondent claims that she sold one of the Baguio properties to buy the Para[ñ]aque property, she
continued to declare the Baguio properties as her own in her SALN for 2000-2002. This, therefore,
would belie any assertion of sale . . .
Incidentally, it should be noted that during the years 2000-2002, respondent was no longer
declaring any cash in bank as part of her assets. She did not declare the proceeds received from the
sale of the Baguio property to Mario Nicolas despite her admission that she was given the initial
payment of P1,100,000.00. Granted that she used P1,000,000.00 thereof to make the [down payment]
on the Para[ñ]aque property, this would still leave her with P100,000.00 cash in hand, not to forget the
balance of P1,100,000.00 still owing her, which should have been declared as part of her assets.
As for the monthly amortization for the Para[ñ]aque property that had to be paid to BPI, the claim
that the rentals on the New Manila property answered for it does not seem to hold water. First,
respondent claims that in view of the fact that she has defaulted on the payments on the PNB loan, the
PNB has since foreclosed the property. The inscription at the back of the title states that the property
was foreclosed in 1999. This, thus, precludes respondent from having the place rented. Second,
assuming that the said foreclosure is being contested and is now the subject of pending litigation, it is a
puzzle how the lease was effected and why it was made for a lengthy period of time. Third, respondent
did not specify how much the lease rental was and if it were sufficient to pay for the monthly mortgage
owing BPI, and, most importantly, respondent failed to present evidence to substantiate the claim of
lease by JIM-Mar Enterprises.
....
As for the trucks and vans, respondent justifies that the same were acquired by virtue of a loan
from PNB-Dagupan Branch in the amount of Two Million Pesos (P2,000,000.00). She claims that the
same loan was used to buy the dump trucks, van, and other equipment, and as operating capital for
her trucking business. Respondent, however, failed to present evidence regarding the said loan and the
security used to obtain it. She also did not present any evidence regarding the trucking business. Also,
she did not disclose this in her SALN as one of her business interests.
Further, respondent admitted to committing another act of falsification. In explaining the
classification of the Pampanga property as an inheritance/donation inter vivos, respondent admitted
that she misdeclared the true value of the said land as merely P50,000.00 in the Deed of Sale
conveying the said property in her favor. This scheme was obviously resorted to in order to evade the
payment of higher taxes.113 (Emph[lsis supplied)
Even if the findings in relation to petitioner's 1989 to 1999 SALNs were disregarded, petitioner would still be
liable for the discrepancies in her 2000 to 2002 SALNs. These discrepancies were stated in the Complaint Affidavit
and were given clarification by petitioner in her Counter-Affidavit and Position Paper. Moreover, she was able to
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move for reconsideration of the Office of the Ombudsman February 7, 2005 Resolution. These circumstances
preclude petitioner from claiming that she was denied her right to due process.
On a final note, this Court endeavors to strike a balance between the accountability of public officers as a result
of public office being a privilege, on the one hand, and their right to privacy as protected in the Bill of Rights, on the
other. Although this Court has held that the requirement of submitting a SALN does not violate the right to privacy of
public officers,114 it does not mean that they should completely shed this right. Therefore, minor or explainable errors
in the SALN, which cannot be related to an attempt to conceal illicit activities should not be punishable. This Court
may relax the rule on strictly complying with the SALN in cases where minor errors were committed since these may
simply be used to harass and obstruct public officers in the performance of their duties. However, the errors in this
case were so substantial and glaring that they should not escape prosecution.
WHEREFORE, the Decision dated December 22, 2006 and the Resolution dated November 21, 2007 of the
Court of Appeals in CA G.R. SP No. 89585 are AFFIRMED with MODIFICATION.
Petitioner Alberta de Joya Iglesias is GUILTY of DISHONESTY and GRAVE MISCONDUCT based on the
anomalies found in her 2000 to 2002 Statements of Assets, Liabilities, and Net Worth. Thus, she
is DISMISSED from service, which includes the accessory penalties of cancellation of eligibility, forfeiture of leave
credits and retirement benefits, and disqualification for re-employment in the government service.
Accordingly, the criminal case against petitioner Alberta de Joya Iglesias shall proceed on the basis of the
anomalies found in her 2000 to 2002 Statements of Assets, Liabilities, and Net Worth.
This is without prejudice to other administrative and criminal charges that may be filed against her.
SO ORDERED.
Velasco, Jr., (Chairperson), Bersamin, Martires, and Gesmundo, JJ., concur.
NOTICE OF JUDGMENT
November 29, 2017
Sirs / Mesdames:
Please take notice that on August 30, 2017 a Decision, copy attached hereto, was rendered by the Supreme
Court in the above-entitled case, the original of which was received by this Office on November 29, 2017 at 2:20
p.m.
Very truly yours,
(SGD)
WILFREDO V. LAPITAN
Division Clerk of Court
Footnotes
1
Rollo, pp. 9-22.
2
Id. at 188-206. The Decision wape1med by Associate Justice Aurora Santiago Lagman and concurred in by
Associate Justices Juan Q. Enriquez, Jr. and Regalado E. Maambong of the Special Fifteenth Division, Court
of Appeals, Manila.
3
Id. at 24-33. The Resolution was penned by Associate Justice Aurora Santiago-Lagman and concurred in by
Associate Justices Juan Q. Enriquez, Jr. and Normandie B. Pizarro of the Former Special Fifteenth Division,
Court of Appeals, Manila.
4
Id. at 19, Petition.
5
Id. at 100-113. The Resolution was penned by Ombudsman Simeon V. Marcelo.
6
Id. at 114-124. The Joint Order was penned by Graft Investigation and Prosecution Officer II Adoracion A.
Agbada, concurred in by Director Joaquin F. Salazar, and recommended for approval by Deputy Ombudsman
for Luzon Victor C. Fernandez. Ombudsman Simeon V. Marcelo approved the Joint Order.
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