NOTES AND CASES IN POLITICAL LAW

Volume II
May 2009 Edition
(For the September 2009 Bar Examinations)

(BILL OF RIGHTS)

Prepared by:

ATTY. LARRY D. GACAYAN

Professor of Law
(Constitutional Law Review, Constitutional Law 1 & 2))
UNIVERSITY OF THE CORDILLERAS-BCF, BAGUIO CITY

Pre-Bar Reviewer

COSMOPOLITAN LAW REVIEW CENTER (CRC)

(Political Law)
Baguio City

UNIVERSITY OF PANGASINAN PRE-BAR REVIEW CENTER

Dagupan City

LEX REVIEW CENTER

Zamboanga City

BAGUIO POWER-HAUS BAR REVIEW CENTER

(Political Law)
Baguio City, Santiago City, Isabela and Dipolog City
 2
CHAPTER 1
FUNDAMENTAL POWERS OF THE STATE
(Police Power)

1. Define:

A. police power---is the power vested in the legislature by the Constitution to make,
ordain, establish all manner of wholesome and reasonable laws for the good and welfare
of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July
31, 1967)

The basic purposes of police power are:

a. to promote the general welfare, comfort and convenience of the people;

(ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175
SCRA 343; US VS. TORIBIO, 15 Phil. 85
b. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA,
September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT];
LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595 —apprehend and
confine lepers in a leprosarium)

PROFESSIONAL REGULATIONS COMMISSION VS.

ARLENE DE GUZMAN, ET AL., June 21, 2004

THE RIGHT TO PRACTICE A PROFESSION

Facts:

After the Professional Regulations Commission (PRC) released the

names of successful examinees in the Medical Licensure Examination, the
Board of Medicines observed that the grades of the 79 Fatima College of
Medicine successful examinees were unusually and exceptionally high in
the two (2) most difficult subjects of the exam, i.e., Biochemistry and
Obstetrics and Gynecology.

The Board then issued Resolution No. 19 withholding the

registration as physicians of all the examinees from Fatima College of
Medicine. Compared with other examines from other schools, the results
of those from Fatima were not only incredibly high but unusually
clustered close to each other. The NBI Investigation found that the
“ Fatima examinees gained early access to the test questions.”

Held:

It must be stressed that the power to regulate the practice of a

profession or pursuit of an occupation cannot be exercised by the State in
an arbitrary, despotic or oppressive manner. However, the regulating body
has the right to grant or forbid such privilege in accordance with certain
conditions.
 3
But like all rights and freedoms guaranteed by the Constitution, their
exercise may be regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order, safety, and general
welfare of the people. As such, mandamus will not lie to compel the
Board of Medicine to issue licenses for the respondents to practice
medicine.

RA 2382 which prescribes the requirements for admission to the

practice of medicine, the qualifications of the candidates for the board
examination, the scope and conduct of the examinations, the grounds for
the denying of the issuance of a physician’s license, or revoking a license
that has been issued. It is therefore clear that the examinee must prove that
he has fully complied with all the conditions and requirements imposed
by law and the licensing authority to be granted the privilege to practice
medicine. In short, he shall have all the qualifications and none of the
disqualifications. The petition is therefore granted.

c. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA

195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )
d. to maintain and safeguard peace and order; (GUAZON VS. DE
VILLA)
e. to protect public morals; (CITY OF MANILA VS. JUDGE LAGUIO,
JR., 455 SCRA 308; WHITE LIGHT CORPORATION VS. CITY OF
MANILA, January 20, 2009; DE LA CRUZ VS. PARAS, 123 SCRA
569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967;
JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS.
VILLEGAS, February 13, 1983)

WHITE LIGHT CORPORATION,

TITANIUM CORPORATION and
STA. MESA TOURIST &
DEVELOPMENT CORPORATION
vs. CITY OF MANILA, represented by
MAYOR ALFREDO S. LIM, G.R.
No. 122846, January 20, 2009
TINGA, J.:

With another city ordinance of Manila also principally involving the

tourist district as subject, the Court is confronted anew with the incessant
clash between government power and individual liberty in tandem
with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,1[1] the Court affirmed the

nullification of a city ordinance barring the operation of motels and inns,
among other establishments, within the Ermita-Malate area. The petition
at bar assails a similarly-motivated city ordinance that prohibits those
1
[1]G.R. 118127, 12 April 2005, 455 SCRA 308.
 4
same establishments from offering short-time admission, as well as pro-
rated or “wash up” rates for such abbreviated stays. Our earlier decision
tested the city ordinance against our sacred constitutional rights to liberty,
due process and equal protection of law. The same parameters apply to the
present petition.

This Petition challenges the validity of Manila City Ordinance No.

7774 entitled, “An Ordinance Prohibiting Short-Time Admission, Short-
Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels,
Inns, Lodging Houses, Pension Houses, and Similar Establishments in the
City of Manila” (the Ordinance).

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim)

signed into law the Ordinance.2[4] The Ordinance is reproduced in full,
hereunder:

SEC. 3. Pursuant to the above policy, short-time

admission and rate [sic], wash-up rate or other similarly
concocted terms, are hereby prohibited in hotels, motels,
inns, lodging houses, pension houses and similar
establishments in the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission

shall mean admittance and charging of room rate for less
than twelve (12) hours at any given time or the renting out
of rooms more than twice a day or any other term that may
be concocted by owners or managers of said establishments
but would mean the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation

who shall violate any provision of this ordinance shall upon
conviction thereof be punished by a fine of Five Thousand
(P5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment
at the discretion of the court; Provided, That in case of [a]
juridical person, the president, the manager, or the persons
in charge of the operation thereof shall be liable: Provided,
further, That in case of subsequent conviction for the same
offense, the business license of the guilty party shall
automatically be cancelled.

On December 15, 1992, the Malate Tourist and Development

Corporation (MTDC) filed a complaint for declaratory relief with prayer
for a writ of preliminary injunction and/or temporary restraining order (
2
[4]
Id. at 46.
 5
3[5]
TRO) with the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila (the City)
represented by Mayor Lim.4[6] MTDC prayed that the Ordinance, insofar
as it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by
Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only three
hours.

They contend that the assailed Ordinance is an invalid exercise of

police power.

II.

To students of jurisprudence, the facts of this case will recall to mind

not only the recent City of Manila ruling, but our 1967 decision in
Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City
Mayor of Manila.5[40] Ermita-Malate concerned the City ordinance
requiring patrons to fill up a prescribed form stating personal information
such as name, gender, nationality, age, address and occupation before they
could be admitted to a motel, hotel or lodging house. This earlier
ordinance was precisely enacted to minimize certain practices deemed
harmful to public morals. A purpose similar to the annulled ordinance in
City of Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the constitutionality
of the ordinance in Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at
bar goes beyond the singularity of the localities covered under the
respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case,
wherein there is no wholesale ban on motels and hotels but the services
offered by these establishments have been severely restricted. At its core,
this is another case about the extent to which the State can intrude into
and regulate the lives of its citizens.

The test of a valid ordinance is well established. A long line of

decisions including City of Manila 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 pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
3
[5]
Id. at 62-69.
4
[6]
Id. at 45-46.

5[40]127 Phil. 306 (1967).

 6
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.6[41]

A.

Police power, while incapable of an exact definition, has been

purposely veiled in general terms to underscore its comprehensiveness to
meet all exigencies and provide enough room for an efficient and flexible
response as the conditions warrant.7[42] Police power is based upon the
concept of necessity of the State and its corresponding right to protect
itself and its people.8[43] Police power has been used as justification for
numerous and varied actions by the State. These range from the regulation
of dance halls,9[44] movie theaters,10[45] gas stations11[46] and cockpits.12[47]
The awesome scope of police power is best demonstrated by the fact that
in its hundred or so years of presence in our nation’s legal system, its use
has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate

the use of the covered establishments for illicit sex, prostitution, drug use
and alike. These goals, by themselves, are unimpeachable and certainly
fall within the ambit of the police power of the State.

B.

The primary constitutional question that confronts us is one of due

process, as guaranteed under Section 1, Article III of the Constitution.
Due process evades a precise definition. 13[48] The purpose of the guaranty
is to prevent arbitrary governmental encroachment against the life, liberty
and property of individuals. The due process guaranty serves as a
protection against arbitrary regulation or seizure. Even corporations and
partnerships are protected by the guaranty insofar as their property is
concerned.
6
[41]City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA
157, 161; Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v.
Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 268-267.

7
[42]Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 127 Phil. 306 (1967).
8
[43]
JMM Promotion and Management Inc. v. Court of Appeals, 329 Phil. 87, 94 (1996) citing Rubi v. Provincial Board of
Mindoro, 39 Phil. 660 (1919).

9[44]U.S. v. Rodriguez, 38 Phil. 759.

10[45]People v. Chan, 65 Phil. 611 (1938).

11[46]Javier v. Earnshaw, 64 Phil. 626 (1937).

12
[47]
Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).
13
[48]See U.S. v. Ling Su Fan, 10 Phil. 104 (1908); Insular Government v. Ling Su Fan, 15 Phil. 58 (1910).
 7

The due process guaranty has traditionally been interpreted as

imposing two related but distinct restrictions on government, "procedural
due process" and "substantive due process." Procedural due process
refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property.14[49] Procedural due process
concerns itself with government action adhering to the established process
when it makes an intrusion into the private sphere. Examples range from
the form of notice given to the level of formality of a hearing.

Substantive due process completes the protection envisioned by the

due process clause. It inquires whether the government has sufficient
justification for depriving a person of life, liberty, or property.15[50]

The question of substantive due process, more so than most other

fields of law, has reflected dynamism in progressive legal thought tied
with the expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the frequency with
which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the
sophisticated methodology that has emerged to determine the proper
metes and bounds for its application.

C.

The general test of the validity of an ordinance on substantive due

process grounds is best tested when assessed with the evolved footnote 4
test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.16
[51]
Footnote 4 of the Carolene Products case acknowledged that the
judiciary would defer to the legislature unless there is a discrimination
against a “ discrete and insular” minority or infringement of a
“ fundamental right.”17[52] Consequently, two standards of judicial review
were established: strict scrutiny for laws dealing with freedom of the
mind or restricting the political process, and the rational basis standard
of review for economic legislation.

A third standard, denominated as heightened or immediate

scrutiny, was later adopted by the U.S. Supreme Court for evaluating

14
[49]Lopez v. Director of Lands, 47 Phil. 23, 32 (1924).
15
[50]
See City of Manila v. Hon. Laguio, Jr., supra note 1 at 330 citing CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW
PRINCIPLES AND POLICIES, 2nd Ed. 523 (2002).

16
[51]
304 U.S. 144 (1938).
17
[52]
Id, at 152.
 8
18[53] 19[54]
classifications based on gender and legitimacy. Immediate
20[55]
scrutiny was adopted by the U.S. Supreme Court in Craig, after the
21[56]
Court declined to do so in Reed v. Reed. While the test may have first
been articulated in equal protection analysis, it has in the United States
since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in

analysis of equal protection challenges.22[57] Using the rational basis
examination, laws or ordinances are upheld if they rationally further a
legitimate governmental interest.23[58] Under intermediate review,
governmental interest is extensively examined and the availability of less
restrictive measures is considered.24[59] 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.

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.25[60] 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.26[61] The United States Supreme Court has expanded the scope
of strict scrutiny to protect fundamental rights such as suffrage, 27[62]
judicial access28[63] and interstate travel.29[64]

If we were to take the myopic view that an Ordinance should be

analyzed strictly as to its effect only on the petitioners at bar, then it

18[53]Craig v. Boren, 429 U.S. 190 (1976).

19
[54]
Clark v. Jeter, 486 U.S. 456 (1988).
20
[55]
429 U.S. 190 (1976).
21
[56]
404 U.S. 71 (1971).
22
[57]
Central Bank Employee’s Association v. Bangko Sentral ng Pilipinas, 487 Phil. 531 (2004); Association of Small
Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, July 14, 1989, 175 SCRA
343; In Ermita-Malate, supra note 1 at 324, the Court in fact noted: “if the liberty involved were freedom of the mind or the person,
the standard for the validity of government 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."

23[58]Central Bank Employee’s Association v. Bangko Sentral ng Pilipinas , supra note 57.

24[59]Id.

25
[60]
Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, 19 November 2001, 369 SCRA 394.

26[61]Id.

27[62]Bush v. Gore, 531 U.S. 98 (2000).

28[63]Boddie v. Connecticut, 401 U.S. 371 (1971).

29[64]Shapiro v. Thompson, 394 U.S. 618 (1969). It has been opined by Chemerinsky that the use of the equal protection
clause was to avoid the use of substantive due process since the latter fell into disfavor in the United States. See ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES (2nd ed. 2002).
 9
would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of the most
deferential standard – the rational basis test. Yet as earlier stated, we
recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons – those persons who would be
deprived of availing short time access or wash-up rates to the lodging
establishments in question.

D.

It cannot be denied that the primary animus behind the ordinance is

the curtailment of sexual behavior. The City asserts before this Court that
the subject establishments “have gained notoriety as venue of
‘prostitution, adultery and fornications’ in Manila since they ‘provide the
necessary atmosphere for clandestine entry, presence and exit and thus
became the ‘ideal haven for prostitutes and thrill-seekers. ’”30[68] Whether or
not this depiction of a mise-en-scene of vice is accurate, it cannot be
denied that legitimate sexual behavior among willing married or
consenting single adults which is constitutionally protected 31[69] will be
curtailed as well, as it was in the City of Manila case. Our holding therein
retains significance for our purposes:

We cannot discount other legitimate activities which the Ordinance

would proscribe or impair. There are very legitimate uses for a wash rate
or renting the room out for more than twice a day. Entire families are
known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash
up and rest between trips have a legitimate purpose for abbreviated stays
in motels or hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with purposes other
than having sex or using illegal drugs can legitimately look to staying in a
motel or hotel as a convenient alternative.

E.

Further, it is apparent that the Ordinance can easily be

circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug dealers
30
[68]
Rollo, p. 258.
31
[69]
“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. (See Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23 November
2004) 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. 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.” City of Manila v. Hon. Laguio, Jr. supra note 1 at 337-338.
 10
and prostitutes can in fact collect “wash rates” from their clientele by
charging their customers a portion of the rent for motel rooms and
even apartments.

The Ordinance needlessly restrains the operation of the

businesses of the petitioners as well as restricting the rights of their
patrons without sufficient justification. The Ordinance rashly equates
wash rates and renting out a room more than twice a day with
immorality without accommodating innocuous intentions.

To be candid about it, the oft-quoted American maxim that “you

cannot legislate morality” is ultimately illegitimate as a matter of law,
since as explained by Calabresi, that phrase is more accurately interpreted
as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong. Our penal laws, for
one, are founded on age-old moral traditions, and as long as there are
widely accepted distinctions between right and wrong, they will remain so
oriented.

WHEREFORE, the Petition is GRANTED. Ordinance No. 7774

is hereby declared UNCONSTITUTIONAL.

CITY OF MANILA, HON. ALFREDO S. LIM as the

Mayor of the City of Manila, et al vs. HON.
PERFECTO A.S. LAGUIO, JR., as Presiding Judge,
RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, GR No. 118127,
April 12, 2005

TINGA, J.:

Enacted by the City Council[9] 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
 11
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
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
 12
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.
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]

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 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,
 13
[49]
obedience to the dictates of justice, 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 despotically[57] 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
 14
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] 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 rights and 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 Manila [63] 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.
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
 15
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 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.

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]
 16
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.
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.
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]
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
 17
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.

SO ORDERED.
f. to promote the economic security of the people. (ICHONG VS.
HERNANDEZ, 101 Phil. 11155)

Not a valid exercise of police power:

a. CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (6%)

b. YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the
Chairman if the National Meat Commission “may dispose of the carabaos or
carabeef” confiscated for violating the executive order prohibiting the inter-
provincial transport of said animals without prior permit issued by the
government “to charitable agencies as he may deem fit”. This is oppressive and
unreasonable since the owner of the animals is denied due process of law and
the Director of Animal Industry or Chairman of the National Meat Commission
is given so much discretion as the law is not complete in itself nor is there a
standard to guide the official.

c. DE LA CRUZ VS. PARAS, 123 SCRA 569

B. POWER OF EMINENT DOMAIN

C. POWER OF TAXATION

2. Differences and similarities

DIDIPIO EARTH SAVERS MULTI PURPOSE ASSOCIATION VS.

DENR SEC. ELISEA GOZU, ET AL., 485 SCRA 586

Chico-Nazario, J.

1. The power of eminent domain is the inherent right of the State to

condemn or to take private property for public use upon payment of just
compensation while police power is the power of the state to promote
public welfare by restraining and regulating the use of liberty and
property without compensation;
 18
2. In the exercise of police power, enjoyment of a property is restricted
because the continued use thereof would be injurious to public welfare. In
such case, there is no compensable taking provided none of the property
interests is appropriated for the use or for the benefit of the public.
Otherwise, there should be compensable taking if it would result to public
use.
3. Properties condemned under police power are usually noxious or intended
for noxious purpose; hence , no compensation shall be paid. Likewise, in
the exercise of police power, property rights of private individuals are
subjected to restraints and burdens in order to secure the general comfort,
health and prosperity of the state.

While the power of eminent domain often results in the appropriation of

title to or possession of property, it need not always be the case. Taking may
include trespass without actual eviction of the owner, material impairment of
the value of the property or prevention of the ordinary uses for which the
property was intended such as the establishment of an easement.

As such, an imposition of burden over a private property through

easement (by the government) is considered taking; hence, payment of just
compensation is required. The determination of just compensation, however, is
a judicial function (EPZA vs. Dulay, 149 SCRA 305) and initial determinations
on just compensation by the executive department and Congress cannot prevail
over the court’s findings.

Finally, service contracts with foreign corporations is not prohibited under

the 1987 Philippine Constitution with foreign corporations or contractors would
invest in and operate and manage extractive enterprises, subject to the full
control and supervision of the State; this time, however, safety measures were
put in place to prevent abuses of the past regime.

3. Limitations in the exercise of said powers

4. Tests for a valid exercise of police power

a. the interests of the public, not mere particular class, require the exercise of
police power; (LAWFUL SUBJECT)
b. the means employed is reasonably necessary for the accomplishment of
the purpose and not unduly oppressive to individuals. (LAWFUL
MEANS). In short, the end does not justify the means.

5. Read:

a. JMM Promotions vs. CA, 260 SCRA 319

b. ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;
c. ICHONG VS. HERNANDEZ, 101 Phil. 1155
d. CHURCHILL VS. RAFFERTY, 32 Phil. 580
e. PEOPLE VS. POMAR, 46 Phil. 447
f. US VS. TORIBIO, 15 Phil. 85
 19
g. VELASCO VS. VILLEGAS, February 13, 1983
h. ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471
i. AGUSTIN VS. EDU, 88 SCRA 195
j. YNOT VS. IAC, 148 SCRA 659

RESTITUTO YNOT VS. THE ITERMEDIATE

APPELLATE COURT, G.R. No. 74457,March 20,
1987

Cruz, J.

Facts:

1. On January, 13, 1984, Ynot transported six carabaos by using a

pumpboat from Masbate to Iloilo. The six carabaos, were, however,
confiscated by the Police Station Commander of Baratoc Nuevo, Iloilo for
alleged violation of Executive Order No. 626-A which prohibits the inter-
provincial transporting of carabaos and carabeefs which does not comply
with the provisions of Executive No.626;

2. That Section 1 of the said law provides that "henceforth, no carabaos

regardless of age, sex physical condition or purpose and no carabeef shall
be transported from one province to another. The carabao or carabeef
transported in violation of the said law shall be subjected to confiscation
and forfeiture by the government to be distributed to charitable institution
and similar institutions as the Chairman of the National meat inspection
Commission may see fit in the case of the carabeef, and to deserving
farmers through the dispersal of the Director of Animal Industry, in the
case of carabaos;

3. Ynot filed a suit for recovery and the carabao were returned to him
upon the issuance of a writ of replevin upon his filing of a supersede as
bond in the amount of P12,000.00;

4. After trial of the case, the Judge upheld the validity of the act of the
Police Station Commander in confiscating the carabaos. Ynot was ordered
to returned the carabaos but since he could not do so, the court ordered the
confiscation of the bond. The court refused to rule on the constitutionality
of the said Executive Order on the ground of lack of authority to do so
and also because of its presumed validity;

5. The petitioner appealed to the IAC but the said court upheld the
decision of the Trial Court. Hence this petition for review on certiorari
before the Supreme Court where YNOT claimed that the penalty of
confiscation is INVALID the same was imposed without according the
owner the right to be heard before a competent and impartial tribunal as
guaranteed by due process.
 20

Issues:

1. May a lower court (like the MTC, RTC, of the Court of Appeals)
declare a law unconstitutional?

2. Is Executive Order No. 626-A constitutional?

Sub-issues under this are:

a. Was it a valid police power measure?

b. Was there an undue delegation of legislative power?

Held:
1. While the lower courts should observe a becoming modesty in
examining constitutional question, THEY ARE NOT PREVENTED
FROM RESOLVING THE SAME WHENEVER WARRANTED, subject
only to review by the supreme court. This is so because under Section 5,
[2(a)], Art. VIII, of the 1987 Constitution provides that the Supreme Court
has the power to "review, revise, reverse, modify or affirm on appeal" or
certiorari as the rules of court may provide, final judgements and orders of
the lower courts in all cases involving the constitutionality of certain
measures. This simply means that lower courts may declare whether or
not a law is constitutional.

2. In order that a measure or law may be justified under the police

power of the state, it must meet two tests:

a. the subject must be lawful; and

b. the means employed is lawful.

Since the prohibition of the slaughtering of carabaos except where they

are at least 7 years old when male and at least 11 years old when female is
in furtherance of the public interest since said carabaos are very useful to
the work at the farm, it is conceded
that the Executive Order meets the first test---- it has lawful subject.

But does the law meets the second requisite or test which is lawful
method?

Executive Order No. 626-A imposes an absolute ban not on the

slaughtering of carabaos BUT ON THIER MOVEMENT, providing that
"no carabao regardless of age, sex, physical condition or purpose and no
carabeef shall be transported from one province to another." The
reasonable connection between the means employed and the purpose
sought to be achieved by the question measure is missing. We do not see
how the prohibition of the inter-provincial transport can prevent their
indiscriminate slaughter considering that they can be killed any where,
 21
with no less difficulty in one province than in the other. Obviously,
retaining a carabao in one province will not prevent their slaughter there,
any more than moving them to another province will make it easier to kill
them there.

The law is unconstitutional because it struck at once and pounced

upon the petitioner without giving him a chance to be heard, thus denying
him the centuries-old guarantee of elementary fair play.

Since the Executive Order in question is a penal law, then violation

thereof should be pronounce not by the police BUT BY A COURT OF
JUSTICE, WHICH ALONE WOULD HAVE HAD THE AUTHORITY
TO IMPOSE THE PRESCRIBED PENALTY, AND ONLY AFTER
TRIAL AND CONVICTION OF THE ACCUSED.

Also, there is no reasonable guidelines or bases of the Director of

Animal Industry or the Chairman of the NATIONAL Meat Inspection
Commission in the disposition of the carabaos or carabeef other than what
"they may see fit" which is very dangerous and could result to
opportunities for partiality and abuse, and even graft and corruption.

The Executive Order is, therefore, invalid and unconstitutional and

not a valid police power measure because the METHOD EMPLOYED
TO CONSERVE CARABAOS IS NOT REASONABLY NECESSARY
TO THE PURPOSE OF THE LAW AND, WORSE IS UNDULY
OPPRESSIVE. DUE PROCESS IS VIOLATED BECAUSE THE
OWNER OF THE PROPERTY CONFISCATED IS DENIED THE
RIGHT TO BE HEARD IN HIS DEFENSE AND IS IMMEDIATELY
CONDEMNED AND PUNISHED. THE CONFERMENT ON THE
ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER
TO ADJUDGE THE GUILT OF THE SUPPOSED OFFENDER IS A
CLEAR ENCROACHMENT OF JUDICIAL FUNCTIONS AND
MILITATES AGAINST THE DOCTRINE OF SEPARATIION OF
POWERS.

Also, there is undue delegation of legislative power to the officers

mentioned therein (Director of Animal Industry and Head of the National
Meat Commission) because they were given unlimited discretion in the
distribution of the property confiscated.

k. TAXICAB OPERATORS VS. BOT, 119 SCRA 597

l. BAUTISTA VS. JUINIO, 127 SCRA 329

MARY CONCEPCION-BAUTISTA VS. ALFREDO

JUINIO, ET AL, 127 SCRA 329

Fernando, C.J.
 22

Facts:

1. On May 31, 1979, President Marcos issued Letter of Instruction

No. 869 prohibiting the use of private motor vehicles with H
(Heavy Vehicles) and EH (Extra Heavy Vehicles) on week-ends and
holidays from 12:00 a.m. Saturday morning to 5:00 a.m. Monday
morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the
holiday. Motor vehicles of the following classifications are however,
exempted:

1. S----service;
2. T----Truck;
3. DPL--Diplomatic;
4. CC---Consular Corps; and
5. TC---Tourist Cars

2. On June 11, 1979, the then Commissioner of Land Transportation,

ROMEO EDU issued Circular No. 39 imposing "the penalties of
fine, confiscation of vehicle and cancellation of registration on
owners of the above-specified found violating such letter of
Instructions";

3. Bautista is questioning the constitutionality of the LOI and the

Implementing Circular on the grounds that:

a. The banning of H and EH vehicles is unfair, discriminatory, and

arbitrary and thus contravenes the EQUAL PROTECTION
CLAUSE; and

b. The LOI denies the owners of H and EH vehicles of due

process, more specifically of their right to use and enjoy their
private property and of their freedom to travel and hold family
gatherings, reunions, outings on week-ends and holidays, while
those not included in the prohibition are enjoying unrestricted
freedom;
c. The Circular violates the prohibition against undue
delegation of legislative power because the LOI does not impose the
penalty of confiscation.

HELD:

1. It must be pointed out that the LOI was promulgated to

solve the oil crisis which was besetting the country at that time. It
was therefore a valid police power measure to ensures the country's
economy as a result of spiralling fuel prices. In the interplay of
Bautista's right to due process and the exercise of police power by
the State, the latter must be given leeway. The police power is
 23
intended to promote public health, public morals, public safety and
general welfare.

2. The petitioners' claim that their right to equal protection was

violated is without basis. This is so because there is a valid
classification in this case. Definitely, Heavy and Extra-Heavy
vehicles consume more gasoline that the other kinds of vehicles and
it is but proper to regulate the use of those which consumes more
gasoline. If all the owner of H and EH vehicles are treated in the
same fashion, or whatever restrictions cast on some in the group is
held equally binding on the rest, there is no violation of the equal
protection clause.

3. The penalty of "impounding" the vehicle as embodied in

Circular No. 39 has no statutory basis. Therefore, it is not valid
being an "ultra vires".

m.ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF

AGRARIAN REFORM, 175 SCRA 343
n. DECS VS. SAN DIEGO, 180 SCRA 533
o. VILLANUEVA VS. CASTANEDA, September 21, 1987

5-a. Not a valid exercise of police power

CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA

759

CHAPTER II— DUE PROCESS

Section 1---NO PERSON SHALL BE

DEPRIVED OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS
OF LAW, NOR SHALL ANY PERSON BE
DENIED EQUAL PROTECTION OF THE
LAWS.

Kinds of Due Process:

a. substantive due process---requires the intrinsic validity of the law in interfering

with the rights of the person to life, liberty or property. In short, it is to
determine whether it has a valid governmental objective like for the interest of
the public as against mere particular class.
b. Procedural due process---one which hears before it condemns as pointed out by
Daniel Webster.
 24
Due process is a law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial (Per Daniel Webster in the
DARTMOUTH COLLEGE CASE)

1. Requisites of “judicial due process”.

a. BANCO ESPANOL VS. PALANCA, 37 Phil. 921

Requisites:

1. There must be an impartial court or tribunal clothed with judicial power to

hear and decide the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the defendant or
over the property subject of the proceedings;
3. The defendant must be given the opportunity to be heard;
4. Judgment must be rendered only after lawful hearing.

a. GALMAN VS. PAMARAN (the 1st case)

b. IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998

IMELDA R. MARCOS VS. SANDIGANBAYAN,

G.R. No. 126995, October 6, 1998

Purisima, J.

Facts:

1. On June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman

and Vice Chairman of the Light Railway Transit Authority (LRTA)
entered into a Lease Contract with the Philippine General Hospital
Foundation (PGHFI) involving an LRTA property in Pasay City for
P102,760.00 per month for 25 years;
2. On June 27,1984, the PGHFI subleased the said property for P734,000.00
per month to the Transnational Construction Corporation represented by
one Ignacio Jumenez;
3. After petitioner’s husband was deposed as President of the Philippines,
she and Dans were charged of alleged violation of Section 3 [g] of RA
3019, otherwise known as the Anti-Graft and Corrupt Practices Act before
the Sandiganbayan;
4. After trial , the First Division of the Sandiganbayan failed to comply with
the legal requirement that all the 3 justices must be unanimous in its
Decision because Justice Garchitorena and Justice Jose Balajadia voted
for the conviction of both accused while Justice Narciso Atienza voted to
acquit them;
5. Thereafter, Justice Garchitorena as Presiding Justice issued Administrative
Order No. 288-93 constituting a Special Division of five and designating
Justices Augusto Amores and Cipriano del Rosario;
 25
6. On September 21, 1993, Justice Amores wrote Justice Garchitorena that
he be given 15 days his Manifestation. On the same date, however, Justice
Garchitorena dissolved the division of 5 allegedly because he and Justice
Balajadia had agreed to the opinion of Justice del Rosario;
7. On September 24, 1993, a Decision was rendered convicting the
petitioner and Dans of violation of Sec. 3 [g] of RA 3019;
8. On June 29, 1998, the Third Division of the Supreme Court by a vote of
3-2 affirmed the conviction of the petitioner but acquitted DANS;
9. Petitioner then filed a Motion for Reconsideration and at the same time
prayed that her Motion be heard by the Supreme Court en banc claiming
that her right to due process of law, both substantive and procedural, was
violated:

a. as a result of the fact that she was convicted as a result of the alleged
disparity of the rentals agreed upon with PGHFI and the subsequent sub-
lease contract between PGHFI and Transnational Construction
Corporation; and
b. the First Division convicted her after Justice Garchitorena dissolved the
Special Division of 5 after a lunch in a Quezon City restaurant where they
agreed to convict her in one case and acquit her in her other cases. The
said meeting was attended by another justice who is not a member of the
First Division or the Special Division in violation of the Rules of the
Sandiganbayan which requires that sessions of the court shall be done
only in its principal office in Manila and that only justices belonging to
the division should join the deliberations.

Held:

The petitioner is hereby acquitted.

1. The great disparity between the rental price of the lease agreement
signed by the petitioner (P102,760.00 per month) and the sub-lease rental
(P734,000.00 per month) does not necessarily render the monthly rate of
P102,760.00 manifestly and grossly disadvantageous to the government in
the absence of any evidence using rentals of adjacent properties showing
that the rentals in the property subject of the lease agreement is indeed
very low. NO EVIDENCE WHATSOEVER WAS PRESENTED BY THE
PROSECUTION REGARDING THE RENTAL RATE OF ADJACENT
PROPERTIES.. As such, the prosecution failed to prove the guilt of the
petitioner reasonable doubt.

2. The court notes likewise the bias and prejudice of Presiding Justice
Garchitorena against the petitioner as shown by his leading, misleading
and baseless hypothetical questions of said justice to RAMON F.
CUERVO, witness for the petitioner. Said justice asked 179 questions to
the witness as against the prosecutor who cross-examined the witness
which was 73. Said number of questions could no longer be described as
“clarificatory questions”. Another ground therefore for the acquittal of the
 26
petitioner is that she was denied IMPARTIAL TRIAL before the
Sandiganbayan. This is one reason why the case could no longer be
remanded to the Sandiganbayan especially so that the other
Sandiganbayan Justices in the Special Division of 5 have retired. There is
therefore no compelling reason why the case should still be remanded to
the lower court when all the evidence are already with the Supreme Court.

(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado,
Davide, Jr., Romero, and Panganiban voted for conviction while Justice
Vitug was the only Justice who voted for the return of the case to the
Sandiganbayan “to allow the corrections of the perceived ‘irregularities’ in
the proceedings below.)

c. DBP VS. CA, January 29, 1999

d. MATUGUINA VS. CA, 263 SCRA 490
e. PEOPLE VS. CA, 262 SCRA 452
f. JAVIER VS. COMELEC, 144 SCRA 194

JAVIER VS. COMELEC

G.R. No.L- 68379-812, September 22, 1986

FACTS:

1. The petitioner Evelio Javier and the private respondent Arturo

Pacificador were candidates in Antique for the Batasang Pambansa
election in May 1984;

2. Alleging serious anomalies in the conduct of the elections and the

canvass of the election returns, Javier went to the COMELEC to prevent
the impending proclamation of his rival;

3. On May 18, 1984, the Second Division of the COMELEC directed the
provincial board of canvassers to proceed with the canvass but to suspend
the proclamation of the winning candidate until further orders;

4. On June 7, 1984, the same Second Division ordered the board to

immediately convene and to proclaim the winner without prejudice to the
outcome of the petition filed by Javier with the COMELEC;

5. On certiorari with the S.C. the proclamation made by the Board of

Canvassers was set aside as premature, having been made before the lapse
of the 5 - day period of appeal, which the petitioner seasonably made;

6. On July 23, 1984 the Second Division itself proclaimed Pacificador

the elected assemblyman of Antique.
 27
ISSUE:

Was the Second Division of the COMELEC, authorized to promulgate

its decision of July 23, 1984 proclaiming Pacificador the winner in the
election ?

APPLICABLE PROVISIONS OF THE CONSITUTION:

The applicable provisions of the 1973 Constitution are Art. XII-C,

secs. 2 and 3, which provide:

"Section 2. Be the sole judge of all contests relating to the election,

returns and qualifications of all members of the Batasang Pambansa and
elective provincial and city officials."

"Section 3. The Commission on Elections may sit en banc or in

three divisions. All election cases may be heard and decided by
divisions except contests involving members of the Batasang
Pambansa, which shall be heard and decided en banc. Unless
otherwise provided by law, all election cases shall be decided within
ninety days from the date of their submission for decision."

CONTENTIONS OF THE PARTIES:

Petitioner:

The proclamation made by the Second Division is invalid because all

contests involving members of the Batasang Pambansa come under the
jurisdiction of the Commission on Elections en banc.

Respondents:

Only "contests" need to be heard and decided en banc, all other cases
can be - in fact, should be - filed with and decided only by any of the
three divisions.

There is a difference between "contests" and "cases" and also a

difference between "pre-proclamation controversies" and "election
protests". The pre-proclamation controversy between the petitioner and
the private respondent was not yet a contest at the time and therefore
could be validly heard by a mere division of the Commission on elections,
consonant with Sec. 3. The issue at that stage was still administrative and
could be resolved by a division.

HELD:

a. The S.C. decided to resolve the case even if the Batasang Pambansa
had already been abolished by the Aquino government, and even if Javier
 28
had already died in the meantime. This was because of its desire for this
case to serve as a guidance for the future. Thus it said: "The Supreme
Court is not only the highest arbiter of legal questions but also the
conscience of the government. The citizen comes to us in quest of law but
we must also give him justice. The two are not always the same. There are
times when we cannot grant the latter because the issue has been settled
and decision is no longer possible according to law. But there are also
times when although the dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice demands that we act, then,
not only for the vindication of the outraged right, though gone, but also
for the guidance of and as a restraint upon the future."

b. The S.C. held on the main issue that in making the COMELEC the
sole judge of all contests involving the election, returns and qualifications
of the members of the Batasang Pambansa and elective provincial and city
officials, the Constitution intended to give it full authority to hear and
decide these cases from beginning to end and on all matter related thereto,
including those arising before the proclamation of the winners.

The decision rendered by the Second Division alone was therefore set
aside as violative of the Constitution. The case should have been decided
en banc.

c. Pre-proclamation controversies became known and designated as such

only because of Sec. 175 of the 1978 Election Code. The 1973
Constitution could not have therefore been intended to have divided
contests between pre and post proclamation when that Constitution was
written in 1973.

d. The word "contests" should not be given a restrictive meaning; on the

contrary, it should receive the widest possible scope conformably to the
rule that the words used in the Constitution should be interpreted liberally.
As employed in the 1973 Constitution, the term should be understood as
referring to any matter involving the title or claim of title to an elective
office, made before or after the proclamation of the winner, whether or not
the contestant is claiming the office in dispute.

e. There was also a denial of due process. One of the members of the
Second Division, Commissioner Jaime Opinion was a law partner of
Pacificador. He denied the motion to disqualify him from hearing the
case. The Court has repeatedly and consistently demanded "the cold
neutrality of an impartial judge" as the indispensable imperative of
due process. To bolster that requirement we have held that the judge must
not only be impartial but must also appear to be impartial as an added
assurance to the parties that his decision will be just.

g. AZUL VS. CASTRO, 133 SCRA 271

h. PADERANGA VS. AZURA, 136 SCRA 266
 29
i. DAVID VS. AQUILIZAN, 94 SCRA 707
j. LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a
party to the ejectment case) so to enforce the decision on her violates her
right to due process of law
k. ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261
l. ANZALDO VS. CLAVE, 119 SCRA 353
m.SINGSON VS. NLRC, 273 SCRA 258
n. ANZALDO VS. CLAVE, 119 SCRA 353
o. MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

MAYOR BAYANI ALONTE VS. JUDGE

SAVELLANO, 287 SCRA 245

Vitug, J.

Mayor Alonte of Binan, Laguna was charged of rape before Branch

25, RTC of Laguna. However, as a result of a petition for a transfer of
venue filed by the prosecution and granted by the SC, his case was
transferred to RTC Branch 53, Manila, presided over by the respondent
judge.

After the petitioner’s arraignment, the prosecution submitted an

AFFIDAVIT OF DESISTANCE signed by the private complainant
JUVIE-LYN PUNONGBAYAN where she prayed for the withdrawal of
the case because she is no longer interested in pursuing the same with no
intention of re-filing the said case in the future.

Pending resolution of the said motion to withdraw, the petitioner

filed a motion for bail. The same was not resolved despite several motions
filed by the petitioner to resolve the same.

On December 17, 1997, counsel for the petitioner, ATTY. PHILIP

SIGFRID FORTUN, received a notice from the respondent judge
notifying him of the promulgation of the decision in this case despite the
fact that the prosecution and the defense have not presented their evidence
in court.

On December 18, 1997, the respondent judge issued a Decision

convicting the petitioner of rape and sentenced to suffer a penalty of
RECLUSION PERPETUA.

Issue:

Whether or not the petitioner was denied his right to due process of
law.
 30
Held:

In order that an accused in a criminal proceedings is deemed to have

been given the right to due process of law, the following requisites must
be complied with before a decision is rendered:

1. the court or tribunal trying the case is clothed with jurisdiction to

hear and determine the matter before it;
2. that jurisdiction was lawfully acquired by it over the person of the
accused;
3. that the accused is given the opportunity to be heard; and
4. that judgment is rendered only upon lawful hearing (PEOPLE
VS. DAPITAN, 197 SCRA 378)

The act of the respondent judge in rendering a decision without even

giving the petitioner the right to adduce evidence in his behalf is a gross
violation of his right to due process of law. The Decision rendered is
NULL AND VOID for want of due process.

p. DBP VS. CA, January 29, 1999

2. Procedural due process before administrative bodies

a. TIBAY VS. CIR, 69 Phil. 635

Requisites:

a. the right to a hearing which includes the right to present

evidence;
b. the tribunal must consider the evidence presented;
c. the decision must have something to support itself;
d. the evidence must be substantial;
e. the decision must be based on the evidence presented during
the hearing;
f. the tribunal or body must act on its own independent
consideration of the law or facts;
g. the board or body shall in all controversial questions, render
its decision in such a manner that the parties to the
proceedings can know the various issues involved.

b. AMERICAN TOBACCO VS. DIRECTOR, 67 SCRA 287

c. MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531
d. DELGADO VS. CA, November 10, 1986

If an accused was represented by a non-lawyer during the trial

(though he thought that he was a lawyer), his right to due process was
violated and therefore entitled to a new trial.
 31
3. Procedural due process in disciplinary actions against students

Academic freedom; due process in disciplinary actions involving students

DE LA SALLE UNIVERSITY VS. COURT OF

APPEALS, HON.WILFREDO D. REYES, in his
capacity as Presiding Judge of Branch 36, Regional
Trial Court of Manila, THE COMMISSION ON
HIGHER EDUCATION, THE DEPARTMENT OF
EDUCATION CULTURE AND SPORTS, ALVIN
AGUILAR, JAMES PAUL BUNGUBUNG,
RICHARD REVERENTE and ROBERTO VALDES,
JR., G.R. No. 127980, December 19, 2007

REYES, R.T., J.:

THE FACTS:

PRIVATE respondents Alvin Aguilar, James Paul Bungubung,

Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma
Phi Fraternity who were expelled by the De La Salle University (DLSU)
and College of Saint Benilde (CSB) Joint Discipline Board because of
their involvement in an offensive action causing injuries to petitioner
James Yap and three other student members of Domino Lux Fraternity.

The mauling incidents were a result of a fraternity war. The victims,

namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and
Michael Perez, are members of the “Domino Lux Fraternity,” while the
alleged assailants, private respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of
“Tau Gamma Phi Fraternity,” a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint
with the Discipline Board of DLSU charging private respondents with
“direct assault.” Similar complaints were also filed by Dennis Pascual
and Ericson Cano against Alvin Lee and private respondents Valdes and
Reverente. Thus, cases entitled “De La Salle University and College of
St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung
(AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin
Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin
A. Papio (AB-MGT/9251227)” were docketed as Discipline Case No.
9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to

private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente
 32
informing them of the complaints and requiring them to answer. Private
respondents filed their respective answers.

Said notices issued by De La Salle Discipline Board uniformly

stated as follows:

Please be informed that a joint and expanded Discipline Board had

been constituted to hear and deliberate the charge against you for
violation of CHED Order No. 4 arising from the written complaints of
James Yap, Dennis C. Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on

April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your
witnesses to give testimony and present evidence in your behalf. You may
be assisted by a lawyer when you give your testimony or those of your
witnesses.

During the proceedings before the Board on April 19 and 28, 1995,
private respondents interposed the common defense of alibi. No full-
blown hearing was conducted nor the students allowed to cross-examine
the witnesses against them.

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a

Resolution finding private respondents guilty. They were meted the
supreme penalty of automatic expulsion pursuant to CHED Order No. 4.
The dispositive part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds

respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL
BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and
RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having
violated CHED Order No. 4 and thereby orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227),

the Board acquits him of the charge.

I SSUE

Were private respondents accorded due process of law because there

was no full-blown hearing nor were they allowed to cross-examine the
witnesses against them?

H E L D:

Private respondents’ right to due process of law was not violated.

 33
In administrative cases, such as investigations of students found
violating school discipline, “ [t]here are withal minimum standards
which must be met before to satisfy the demands of procedural due
process and these are: that (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 and with the assistance if
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.”

Where a party was afforded an opportunity to participate in the

proceedings but failed to do so, he cannot complain of deprivation of due
process. 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.

Private respondents were duly informed in writing of the charges against

them by the DLSU-CSB Joint Discipline Board through petitioner Sales.
They were given the opportunity to answer the charges against them as
they, in fact, submitted their respective answers. They were also informed
of the evidence presented against them as they attended all the hearings
before the Board. Moreover, private respondents were given the right to
adduce evidence on their behalf and they did. Lastly, the Discipline
Board considered all the pieces of evidence submitted to it by all the
parties before rendering its resolution in Discipline Case No. 9495-3-
25121.

Private respondents cannot claim that they were denied due process
when they were not allowed to cross-examine the witnesses against them.
This argument was already rejected in Guzman v. National University]
where this Court held that “x x x the imposition of disciplinary sanctions
requires observance of procedural due process. And it bears stressing that
 34
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. The proceedings in student discipline
cases may be summary; and cross examination is not, x x x an essential
part thereof.”

GUZMAN VS. NATIONAL UNIVERSITY

G.R. No. L-68288, July 11, 1986

FACTS:

Petitioners who are students of the National University were barred

from enrolment. The school claims that their scholastic standing is poor
and that they have been involved in activities that have disrupted classes
and had conducted mass actions without the required permits.

HELD:

a. It is apparent that despite the accusations of alleged violations hurled

by the school against the petitioners, the fact is that it had never conducted
proceedings of any sort to determine whether or not petitioners-students
had indeed led or participated "in activities within the university premises,
conducted without prior permit from school authorities, that disturbed or
disrupted classes therein".

Also apparent is the omission of respondents to cite any duly published

rule of theirs by which students may be expelled or refused re-enrollment
for poor scholastic standing.

b. Under the Education Act of 1982, students have the right "to freely
choose their field of study subject to existing curricula and to continue
their course therein up to graduation, EXCEPT in case of academic
deficiency, or violation of disciplinary regulations."

The petitioner were denied of this right, and were being disciplined
without due process, in violation of the admonition in the Manual of
Regulations for Private Schools that "no penalty shall be imposed upon
any student except for cause as defined in *** (the) Manuel and/or in the
school rules and regulations as duly promulgated and only after due
investigation shall have been conducted. It has already been held in
Berina vs. Philippine Maritime Institute, 117 SCRA 581, that it is illegal
of a school to impose sanctions on students without conducting due
investigation.

c. Of course, all schools have the power to adopt and enforce its rules. In
fact the maintenance of good school discipline is a duty specifically
 35
enjoined on every private school. The Manual of Regulations for Private
Schools provides that:

"* * The school rules governing discipline and the corresponding

sanctions therefor must be clearly specified and defined in writing and
made known to the students and/or their parents or guardians. Schools
shall have the authority and prerogative to promulgate such rules and
regulations as they may deem necessary from time to time effective as of
the date of their promulgation unless otherwise specified."

d. The imposition of disciplinary sanctions requires observance of

procedural due process. Due process in disciplinary cases involving
students :

a. need not entail proceedings and hearing similar to those prescribed

for actions and proceedings in court of justice;

b. the proceedings may be summary;

c. cross-examination is not an essential part thereof.

But the S.C. said that the following minimum standards must be met to
satisfy the demands of procedural due process:

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;
3. they shall be informed of the evidence against them;
4. they shall have the right to adduce evidence in their own behalf;
5. the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and
decide the case.

a. BERINA VS. PMI, September 30, 1982

Due process in the dismissal of employees

Requisites of Due Process before the NLRC

1. Notice; and
2. Hearing

a. MGG Marine Services vs. NLRC, 259 SCRA 664

 36
b. Philippine Savings Bank vs. NLRC, 261 SCRA 409
c. RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589
d. WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174
e. SAMILLANO VS. NLRC, 265 SCRA 788
f. STOLT-NIELSEN VS. NLRC, 264 SCRA 307
g. GARCIA VS. NLRC, 264 SCRA 261

4. Effect of a Motion for Reconsideration to violation of the right to due process

a. CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635

b. CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652

5. In administrative proceedings, does due process require that [1] a party be

assisted by counsel and [2] be able to cross-examine the witnesses?

LUMIQUED VS. EXENEA, 282 SCRA 125

There is no law, whether the Civil Service Act or the Administrative Code
of 1987, which provides that a respondent in an administrative case should be
assisted by counsel in order that the proceedings therein is considered valid.
Not only, that, petitioner herein was given the opportunity several times to
engage the services of a lawyer to assist him but he confidently informed the
investigators that he could protect himself.

Administrative Due Process before the

Civil Service Commission

ATTY. ROMEO ERECE VS. LYN MACALINGAY,

ET AL., G.R. No. 166809, April 22, 2008

THE FACTS:

Petitioner is the Regional Director of the Commission on Human

Rights (CHR) Region I, whose office is located in San Fernando City, La
Union. Respondent employees of the CHR Region I filed an Affidavit-
Complaint dated October 2, 1998 against petitioner alleging that he
denied them the use of the office vehicle assigned to petitioner, that
petitioner still claimed transportation allowance even if he was using the
said vehicle, and that he certified that he did not use any government
vehicle, when in fact he did, in order to collect transportation allowance.

Respondent filed his answer denying the allegations against him.

After a fact-finding investigation, the CSC Proper in CSC

Resolution No. 99-1360 dated July 1, 1999 charged petitioner with
Dishonesty and Grave Misconduct for using a government vehicle in spite
of his receipt of the monthly transportation allowance and for certifying
 37
that he did not use any government vehicle, when in fact, he did, in order
to receive the transportation allowance.

Pertinent portions of the formal charge read:

1. That despite the regular receipt of Erece of his monthly

Representation and Transportation Allowance (RATA) in the amount of
P4,000.00, he still prioritizes himself in the use of the office vehicle
(Tamaraw FX) in spite of the directive from the Central Office that he
cannot use the service vehicle for official purposes and at the same time
receive his transportation allowance;

2. That Erece did not comply with the directive of the Central
Office addressed to all Regional Human Rights Directors, as follows: ‘to
regularize your receipt of the transportation allowance component of the
RATA to which you are entitled monthly, you are hereby directed to
immediately transfer to any of your staff, preferably one of your lawyers,
the memorandum receipt of the vehicle(s) now still in your name;’

3. That he certified in his monthly liquidation of his RATA that

he did not use any government vehicle for the corresponding month,
which is not true because he is the regular user of the government vehicle
issued to CHR-Region I.

The foregoing facts and circumstances indicate that government

service has been prejudiced by the acts of Erece.

WHEREFORE, Romeo L. Erece is hereby formally charged with

Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days
from receipt hereof to submit his Answer under oath and affidavits of his
witnesses, if any, to the Civil Service Commission-Cordillera
Administrative Region (CSC-CAR). On his Answer, he should indicate
whether he elects a formal investigation or waives his right thereto. Any
Motion to Dismiss, request for clarification or Bills of Particulars shall not
be entertained by the Commission. Any of these pleadings interposed by
the respondent shall be considered as an Answer and shall be evaluated as
such. Likewise, he is advised of his right to the assistance of counsel of
his choice.32[4]

After a formal investigation of the case, the CSC issued Resolution

No. 020124, dated January 24. 2002, finding petitioner guilty of
dishonesty and conduct prejudicial to the best interest of the service and
penalizing him with dismissal from the service.

Petitioner filed a petition for review of the CSC Resolution with the
CA.

32[4] Id. at 35-36.

 38
In the Decision promulgated on January 7, 2005, the CA upheld the
CSC Resolution, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition is DENIED

and the assailed Resolutions of the Civil Service Commission are hereby
AFFIRMED.

Hence, this petition.

I S S U E:

Petitioner raised the issue of violation of his right to due process

because he was denied the right to cross-examine the respondents on their
affidavit-complaint.

H E L D:

Petitioner contends that he was denied due process as he was not

afforded the right to cross-examine his accusers and their witnesses. He
stated that at his instance, in order to prevent delay in the disposition of
the case, he was allowed to present evidence first to support the
allegations in his Counter-Affidavit. After he rested his case, respondents
did not present their evidence, but moved to submit their position paper
and formal offer of evidence, which motion was granted by the CSC over
his (petitioner’s) objection. Respondents then submitted their Position
Paper and Formal Offer of Exhibits.

Petitioner submits that although he was allowed to present evidence

first, it should not be construed as a waiver of his right to cross-examine
the complainants. Although the order of presentation of evidence was not
in conformity with the procedure, still petitioner should not be deemed to
have lost his right to cross-examine his accusers and their witnesses. This
may be allowed only if he expressly waived said right.

The Court agrees with the CA that petitioner was not denied due
process when he failed to cross-examine the complainants and their
witnesses since he was given the opportunity to be heard and present his
evidence. In administrative proceedings, the essence of due process is
simply the opportunity to explain one’s side.

Velez v. De Vera it was held that :

Due process of law in administrative cases is not identical with

“judicial process” for a trial in court is not always essential to due process.
While a day in court is a matter of right in judicial proceedings, it is
otherwise in administrative proceedings since they rest upon different
principles. The due process clause guarantees no particular form of
procedure and its requirements are not technical. Thus, in certain
 39
proceedings of administrative character, the right to a notice or hearing are
not essential to due process of law. The constitutional requirement of due
process is met by a fair hearing before a regularly established
administrative agency or tribunal. It is not essential that hearings be had
before the making of a determination if thereafter, there is available trial
and tribunal before which all objections and defenses to the making of
such determination may be raised and considered. One adequate hearing
is all that due process requires. . . .

The right to cross-examine is not an indispensable aspect of due

process. Nor is an actual hearing always essential. . . .

The dismissal of the petitioner from the government is valid.

DATUPAX MANGUDADATU VS. HOUSE OF

REPRESENTATIVES ELECTORAL TRIBUNAL
(HRET), G.R. No. 179813, December 18, 2008

LEONARDO-DE CASTRO, J.:

Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O.
Montilla (private respondent) were congressional candidates for the First
District of Sultan Kudarat during the May 14, 2007 national elections.
Petitioner won by 17,451 votes and was proclaimed on May 22, 2007 by
the Provincial Board of Canvassers as the duly elected Representative of
the said congressional district. On May 31, 2007, respondent filed with
the HRET a Petition of Protest (Ad Cautelam)33[4] contesting the results of
the elections and the proclamation of petitioner.

On June 14, 2007, the Secretary of the HRET caused the service of
summons34[5] upon petitioner through registered mail at Purok Losaria,35
[6]
Tamnag (Poblacion), Lutayan, Sultan Kudarat, requiring petitioner to
file an Answer to the protest within ten (10) days from receipt thereof.

On July 11, 2007, the HRET received the Registry Return Receipt
36[7]
Card, showing that a certain Aileen R. Baldenas 37[8] (Baldenas)
received the summons on June 27, 2007.

[4]
33 Id., pp. 41-76.
[5]
34 Id., p. 77.
[6]
35 The assailed Resolutions state “Loria” but the Summons and Registry Return Receipt Card correctly state
“Losaria.”
36 [7] Rollo, p. 78.
37 [8] The assailed Resolutions state “Baldena”; it should be “Baldenas ” based on the Registry Return Receipt
Card.
 40
38[9]
On August 16, 2007, the HRET issued Resolution No. 07-179
which noted the aforementioned Registry Return Receipt Card and that
despite the fact that 43 days from June 27, 2007 had passed since
Baldenas received the summons, petitioner had not filed an answer in
accordance with Rule 2739[10] of the 2004 HRET Rules. In the same
Resolution, the HRET considered petitioner to have entered a general
denial of the allegations of the protest.

In an Order dated August 17, 2007, the HRET set the preliminary
conference on September 27, 2007 at 11:00 a.m.

Meanwhile, petitioner informally learned of respondent’s protest,

prompting petitioner to request his lawyers to verify the same from the
records of the HRET. Thereafter, his lawyers entered their appearance on
September 4, 2007 and requested that they be furnished with copies of the
petition of protest as well as notices, orders and resolutions pertaining to
the protest.

On September 10, 2007, petitioner filed a Motion to Reconsider 40[11]

Resolution No. 07-179 and Motion to Admit Answer with Counter-
Protest, alleging that he never received the summons issued by the HRET.
In his affidavit41[12] attached to the motion, petitioner denied that Baldenas
was a member of his household or his employee. He further claimed that
she was not authorized to receive any important documents addressed to
him. And assuming that he had authorized her, the summons received by
her was never brought to his attention.

On September 19, 2007, the HRET issued Resolution No. 07-

42[13]
300 denying for lack of merit.

Hence, this petition.

Petitioner filed the instant petition imputing grave abuse of

discretion amounting to lack of jurisdiction on the part of the HRET for
issuing Resolution Nos. 07-179 and 07-300. He also prayed for a
temporary restraining order and/or a writ of preliminary injunction for this
Court to enjoin the HRET from further proceeding with HRET Case
No.07-021. Petitioner contended that the HRET never acquired
jurisdiction over his person because of the absence of a valid service of

[9]
38 See Note 2.
[10]
39 RULE 27. Failure to Answer; Effect. – If no answer is filed to the protest, counter-protest, or the petition for
quo warranto within the period fixed in these Rules, a general denial shall be deemed to have been entered.
40 [11] Rollo, pp. 26-37.
41 [12] Id., p. 30.
42 [13] See Note 3.
 41
summons. He argued that a substitute service of summons is made only
“when the defendant cannot be served personally at a reasonable time
after efforts to locate him have failed.”43[14] In his case, since the process
server’s return failed to show on its face the impossibility of personal
service, then the substituted service was improper and invalid.

In his comment, respondent countered that the HRET did not

commit grave abuse of discretion in issuing Resolution Nos. 07-179 dated
August 16, 2007 and 07-300 dated September 19, 2007. He argued that
Rule 22 of the 2004 HRET Rules merely states that “the Secretary of the
Tribunal shall issue the corresponding summons to the protestee or
respondent, as the case may be.” He posited then that the intent of the
HRET in not expressly specifying personal service of summons on the
protestee or respondent was to give it a reasonable discretion or leeway in
serving the summons by other means such as registered mail. Thus,
service of summons on petitioner through registered mail did not violate
Rule 22 of the 2004 HRET Rules. Further, respondent claimed that Rule
14, Sections 6 and 7 of the Rules of Court were inconsistent with Rule 22
of the 2004 HRET Rules and therefore should not be given suppletory
application to HRET proceedings.

HELD:

Rule 22 of the 2004 HRET Rules provides:

RULE 22. Summons. – If the petition is not summarily

dismissed in accordance with Rule 21 of these Rules, the
Secretary of the Tribunal shall issue the corresponding
summons to the protestee or respondent, as the case may be,
together with a copy of the petition, requiring him within ten
(10) days from receipt thereof to file his answer.

The 2004 HRET Rules on summons is silent on how the summons

should be served on the protestee. Significantly, Rule 80 44[15] of the 2004
HRET Rules provides that the 1997 Rules of Civil Procedure applies by
analogy or suppletorily in so far as the latter may be applicable and not
inconsistent therewith as well as with the orders, resolutions and decisions
of the HRET. In view of the failure of the HRET Rules to specify the

43[14]Rollo, p.12.
44 [15]
RULE 80. Applicability. – The following shall be applicable by analogy or in suppletory character and
effect in so far as they may be applicable and are not inconsistent with these Rules and with the orders,
resolutions and decisions of the Tribunal, namely:
(1) The Rules of Court;
(2) Decisions of the Supreme Court;
(3) Decisions of the Electoral Tribunals.
 42
authorized modes of service of summons, resort then is necessary to
Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure, which state:

SEC. 6. Service in person on defendant. – Whenever

practicable, the summons shall be served handling a copy
thereof to the defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him.

SEC. 7. Substituted service. – If, for justifiable causes, the

defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a)
by leaving copies of the summons at the defendant’s
residence with some person of suitable age and discretion
then residing therein, or (b) by leaving copies at
defendant’ s office or regular place of business with some
competent person in charge thereof.

In the case at bar, the service of the summons was made through
registered mail, which is not among the allowed modes of service under
Rule 14 of the Rules of Court.

Indeed, if in ordinary civil cases (which involve only private and

proprietary interests) personal service of summons is preferred and
service by registered mail is not allowed on jurisdictional and due process
grounds, with more reason should election cases (which involve public
interest and the will of the electorate) strictly follow the hierarchy of
modes of service of summons under the Rules of Court.

The Court sees no reason why the HRET cannot make use of its
own process servers to personally serve the summons, or alternatively,
delegate the matter to the process server of a court with territorial
jurisdiction over the place of residence of the respondent/protestee in the
election case, at the expense of the petitioner/protestant. Considering
that the proper service of summons on the respondent/protestee is a
jurisdictional requirement and goes to heart of due process, we cannot
allow service of summons by a method not sanctioned by the HRET Rules
in relation to the Rules of Court.

In view of the foregoing, we find that the HRET committed grave

abuse of discretion in considering petitioner to have entered a general
denial of the allegations in respondent’s petition of protest and in denying
his motion to reconsider as well as his motion to admit answer with
counter-protest.
 43
WHEREFORE, the petition for certiorari is hereby GRANTED.
HRET is directed to admit the Answer with Counter-Protest of petitioner
Datu Pax Pakung S. Mangudadatu.

DEPARTMENT OF EDUCATION VS.

GODOFREDO CUANAN, G.R. No. 169013,
December 16, 2008

The factual background of the case is as follows:

On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their
respective minor daughters, Lily Borja and Charo Castro, filed before the Department
of Education, Culture and Sports - Regional Office No. III (DECS-RO No. III),
Cabanatuan City, two separate administrative complaints45[3] for Sexual Harassment
and Conduct Unbecoming a Public Officer against Cuanan, then Principal of Lawang
Kupang Elementary School in San Antonio, Nueva Ecija.

Acting on the complaints, DECS-RO No. III Regional Director Vilma L.

Labrador constituted an Investigating Committee, composed of three DepEd officials
from the province, to conduct a formal investigation. Following the investigation, the
Investigating Committee submitted its Investigation Report46[4] dated December 14,
1999, finding Cuanan guilty of sexual harassment and recommending his forced
resignation without prejudice to benefits. In a Decision 47[5] dated January 28, 2000,
Regional Director Labrador concurred in the findings of the Investigating Committee
and meted out the penalty of forced resignation to Cuanan without prejudice to
benefits.

In an Order48[6] dated April 13, 2000, then DepEd Secretary Andrew Gonzales
affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan filed
a Petition for Reconsideration49[7] thereof, but the same was denied for lack of merit by
Secretary Gonzales in a Resolution50[8] dated June 19, 2000.
Cuanan elevated his case to the CSC. On January 20, 2003, the CSC issued
Resolution No. 030069,51[9] which set aside the June 19, 2000 Resolution of Secretary
Gonzales and exonerated Cuanan from the charge of sexual harassment. On January
23, 2003, copies of the resolution were duly sent to the parties, including the DepEd.52
[10]
Cuanan received a copy of Resolution No. 030069 on January 31, 2003.53[11]

In a Letter dated February 3, 2003, Cuanan requested his reinstatement as

Elementary School Principal I.54[12] In a 1st Indorsement, the District Supervisor
45
46
47
48
49
50
51
52
53
54
 44
55[13] nd
recommended appropriate action. In a 2 Indorsement dated February 4, 2003,
Schools Division Superintendent Dioscorides D. Lusung (Superintendent)
recommended that Cuanan be reinstated to duty as School Principal of San Antonio
District upon finality of the decision of the CSC.56[14] In a Letter57[15] dated February
10, 2003, Regional Director Ricardo T. Sibug informed the Superintendent that
Cuanan could not be immediately reinstated to the service until an order of
implementation was received from the Department Secretary.

Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon

sent a letter to the CSC requesting a copy of CSC Resolution No. 030069 dated
January 20, 2003. In a Letter58[16] dated March 25, 2003, the CSC informed the DepEd
that a copy of the requested resolution was duly sent to it on January 23, 2003.
Nonetheless, the CSC sent another copy of the resolution to the DepEd for its
reference. The DepEd received said reference copy on March 28, 2003.59[17]

On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a

Petition for Review/Reconsideration60[18] with the CSC. No copy of the pleading was
served upon Cuanan.

On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for

Review/Reconsideration61[19] reiterating the prayer for reversal of the resolution.
Again, no copy of the pleading was served upon Cuanan.

Subsequently, pursuant to Division Special Order No. 001 series of 2003 dated
June 18, 2003, Cuanan was reinstated to his former position as school principal
effective April 30, 2003.62[20] In Division Special Order No. 285, series of 2003 dated
July 8, 2003, Cuanan was directed to return to duty. 63[21] Based thereon, Cuanan
requested payment of salaries and his inclusion in the payroll, which the Division
School Superintendent of Nueva Ecija duly endorsed on November 7, 2003.64[22]

However, on October 22, 2004, the CSC issued Resolution No. 04114765[23]
setting aside CSC Resolution No. 030069 dated January 20, 2003. It found Cuanan
guilty of Sexual Harassment, Grave Misconduct and Conduct Grossly Prejudicial to
the Best Interest of the Service and meted out the penalty of dismissal from the service
with forfeiture of retirement benefits, cancellation of his service eligibility, and
perpetual disqualification from holding public office. Cuanan received a copy of the
Resolution on November 9, 2004.66[24]

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64
65
66
 45
Thirteen days later, or on November 22, 2004, Cuanan filed a petition for
certiorari67[25] with the CA seeking to annul Resolution No. 041147, alleging that the
CSC should not have entertained the petition for review/reconsideration since the
DepEd was not the complainant or the party adversely affected by the resolution; that
the petition for review/reconsideration was filed out of time; and that Cuanan was not
furnished copies of the pleadings filed by the DepEd in violation of procedural due
process.

The DepEd sought the dismissal of the petition on the ground of improper
remedy, the mode of review from a decision of the CSC being a petition for review
under Rule 43 of the Rules of Court.

On May 16, 2005, the CA rendered a Decision68[26] granting the petition for
certiorari and setting aside CSC Resolution No. 041147 dated October 12, 2004. The
CA held that while a motion for reconsideration and a petition for review under Rule
43 were available remedies, Cuanan's recourse to a petition for certiorari was
warranted, since the act complained of was patently illegal; that the CSC gravely
abused its discretion in granting the petition for review/reconsideration filed by the
DepEd without regard for Cuanan's fundamental right to due process, since he was not
duly notified of the petition for review/reconsideration, nor was he required by the
CSC to file a comment thereon, much less, given a copy of the said petition; that the
DepEd failed to establish that the resolution was not yet final and executory when it
filed its petition for review/reconsideration.

DepEd filed a Motion for Reconsideration,69[27] but the CA denied the same in its
Resolution70[28] dated July 18, 2005.

Hence, the present petition on the following grounds:

I
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY
ERRED ON A QUESTION OF LAW IN TAKING COGNIZANCE OF
THE PETITION IN CA-G.R. SP NO. 87499, THE SAME NOT BEING
THE PROPER REMEDY IN ASSAILING CSC RESOLUTION NO.
041147 DATED OCTOBER 22, 2004.

II
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY
ERRED ON A QUESTION OF LAW IN ADJUDGING CSC AS
HAVING COMMITTED GRAVE ABUSE OF DISCRETION IN
ISSUING RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.71
[29]

67
68
69
70
71
 46
DepEd contends that the CA should have dismissed outright the petition for
certiorari because CSC decisions are appealable to the CA by petition for review
under Rule 43; that the filing of a motion for reconsideration was a precondition to the
filing of a petition for certiorari under Rule 65; that the DepEd, even if not the
complainant, may question the resolution of the CSC; that Cuanan failed to prove that
the CSC's petition for review/reconsideration was not seasonably filed; that even if
Cuanan was not served a copy of the pleadings filed by the DepEd, the CSC was not
bound by procedural rules.

Cuanan, on the other hand, contends that the DepEd cannot file a motion for
reconsideration from the CSC Resolution exonerating him, since it is not the
complainant in the administrative case and therefore not a party adversely affected by
the decision therein; that even if DepEd may seek reconsideration of the CSC
Resolution, the petition for review/reconsideration was filed out of time; and that
Cuanan’s right to due process was violated when he was not given a copy of the
pleadings filed by the DepEd or given the opportunity to comment thereon.

The Court finds it necessary, before delving on the grounds relied upon by the
DepEd in support of the petition, to first resolve the question of whether the DepEd
can seek reconsideration of the CSC Resolution exonerating Cuanan.

In a long line of cases, beginning with Civil Service Commission v. Dacoycoy,72

[30]
and reiterated in Philippine National Bank v. Garcia, Jr.,73[31] the Court has
maintained that the disciplining authority qualifies as a party adversely affected by the
judgment, who can file an appeal of a judgment of exoneration in an administrative
case. CSC Resolution No. 02160074[32] allows the disciplining authority to appeal
from a decision exonerating an erring employee, thus:

Section 2. Coverage and Definition of Terms. – x x x (l) PARTY

ADVERSELY AFFECTED refers to the respondent against whom a
decision in a disciplinary case has been rendered or to the disciplining
authority in an appeal from a decision exonerating the said employee.
(Emphasis supplied)

Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to a
motion for reconsideration by the DepEd which, as the appointing and disciplining
authority, is a real party in interest.

Now, as to the merits of DepEd's arguments, the Court finds none.

The remedy of an aggrieved party from a resolution issued by the CSC is to file
a petition for review thereof under Rule 4375[33] of the Rules of Court within fifteen
days from notice of the resolution. Recourse to a petition for certiorari under Rule 65
renders the petition dismissible for being the wrong remedy. Nonetheless, there are

72
73
74
75
 47
exceptions to this rule, to wit: (a) when public welfare and the advancement of public
policy dictates; (b) when the broader interest of justice so requires; (c) when the writs
issued are null and void; or (d) when the questioned order amounts to an oppressive
exercise of judicial authority.76[34] As will be shown forthwith, exception (c) applies to
the present case.

Furthermore, while a motion for reconsideration is a condition precedent to the

filing of a petition for certiorari, immediate recourse to the extraordinary remedy of
certiorari is warranted where the order is a patent nullity, as where the court a quo has
no jurisdiction; where petitioner was deprived of due process and there is extreme
urgency for relief; where the proceedings in the lower court are a nullity for lack of
due process; where the proceeding was ex parte or one in which the petitioner had no
opportunity to object.77[35] These exceptions find application to Cuanan's petition for
certiorari in the CA.

At any rate, Cuanan's petition for certiorari before the CA could be treated as a
petition for review, the petition having been filed on November 22, 2004, or thirteen
(13) days from receipt on November 9, 2004 of CSC Resolution No. 041147, clearly
within the 15-day reglementary period for the filing of a petition for review.78[36] Such
move would be in accordance with the liberal spirit pervading the Rules of Court and
in the interest of substantial justice.79[37]

Furthermore, CSC Resolution No. 030069 has long become final and executory.
It must be noted that the records show that copies of CSC Resolution No. 030069
were duly sent to the parties, including DepEd, on January 23, 2003. 80[38] Cuanan
received a copy thereof on January 31, 2003,81[39] while the DepEd requested a copy
sometime in March 2003, or about two months later. Under the Rules of Evidence, it
is presumed that official duty has been regularly performed, unless contradicted. 82[40]
This presumption includes that of regularity of service of judgments, final orders or
resolutions.

Consequently, the burden of proving the irregularity in official conduct -- that is,
non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the part of
the DepEd, which in the present case clearly failed to discharge the same.83[41] Thus,
the presumption stands that CSC Resolution No. 030069 dated January 20, 2003 had
already become final and executory when the DepEd filed its Petition for
Review/Reconsideration on April 11, 2003, more than two months later.

It is elementary that once judgment has become final and executory, it becomes
immutable and can no longer be amended or modified. In Gallardo-Corro v.
Gallardo,84[42] this Court held:
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79
80
81
82
83
84
 48

Nothing is more settled in law than that once a judgment attains

finality it thereby becomes immutable and unalterable. It may no longer
be modified in any respect, even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted to be made by the
court rendering it or by the highest court of the land. Just as the losing
party has the right to file an appeal within the prescribed period, the
winning party also has the correlative right to enjoy the finality of the
resolution of his case. The doctrine of finality of judgment is grounded on
fundamental considerations of public policy and sound practice, and that,
at the risk of occasional errors, the judgments or orders of courts must
become final at some definite time fixed by law; otherwise, there would
be no end to litigations, thus setting to naught the main role of courts of
justice which is to assist in the enforcement of the rule of law and the
maintenance of peace and order by settling justiciable controversies with
finality.85[43]

Moreover, while it is true that administrative tribunals exercising quasi-judicial

functions are free from the rigidity of certain procedural requirements, they are bound
by law and practice to observe the fundamental and essential requirements of due
process in justiciable cases presented before them.86[44] The relative freedom of the
CSC from the rigidities of procedure cannot be invoked to evade what was
clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial
Relations:87[45] that all administrative bodies cannot ignore or disregard the
fundamental and essential requirements of due process.

Furthermore, Section 43.A.88[46] of the Uniform Rules in Administrative Cases in

the Civil Service provides:

Section 43.A. Filing of Supplemental Pleadings. - All pleadings

filed by the parties with the Commission, shall be copy furnished the
other party with proof of service filed with the Commission.

Any supplemental pleading to supply deficiencies in aid of an

original pleading but which should not entirely substitute the latter can be
filed only upon a favorable action by the Commission on the motion of a
party to the case. The said motion should be submitted within five (5)
days from receipt of a copy of the original pleading and it is discretionary
upon the Commission to allow the same or not or even to consider the
averments therein.(Emphasis supplied)

Cuanan undoubtedly was denied procedural due process. He had no

opportunity to participate in the proceedings for the petition for review/

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86
87
88
 49
reconsideration filed by the DepEd, since no copy of the pleadings filed by the DepEd
were served upon him or his counsel; nor was he even required by the CSC to file his
comments thereon. Considering that pleadings filed by the DepEd were not served
upon Cuanan, they may be treated as mere scraps of paper which should not have
merited the attention or consideration of the CSC.

WHEREFORE, the petition is DENIED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED.

CHAPTER III - THE EQUAL

PROTECTION CLAUSE

… nor shall any person be denied the equal protection of the laws.

1. The scope of the equal protection clause, 95 SCRA 420

2. Equal protection of the law, 13 SCRA 266

3. Requisites for a valid classification-

Read:

1. People vs. Cayat, 68 Phil. 12

a. There must be real and substantial distinctions;

b. It must be germane tot he purposes of the law;
c. It must not be limited to existing conditions only; and
d. It must apply equally to all members of the same class.

2. Read again, Association of Small Landowners vs. Sec. of Agrarian

reform, July 14, 1989

4. Equal protection in general-

Read:

1. P. vs. Vera, 65 Phil. 56

2. TIU VS. CA, 301 SCRA 278 (There is real and substantial distinction between
business inside the Subic Special Economic Zone and outside wherein those
inside are exempt from other taxes as a result of the policy of the government to
accelerate the development of the portion of Subic left by the Americans)

3. IMELDA MARCOS VS. CA, 278 SCRA 843

4. HIMAGAN VS. PEOPLE, October 7, 1994

The fact that policemen charged with a criminal offense punishable by
more than 6 years are to be suspended during the entire duration of the case
 50
unlike other government employees is valid since it rests on valid classification
because policemen carry weapons and the badge of the law which can be used
to harass or intimidate witnesses against them.

2-A Gumabon vs. Director of Prisons, 37 SCRA 420

2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999
2-b-1. BASCO VS. PAGCOR, May 14, 1991

No violation of the equal protection clause if Congress would legalize

cock-fighting and horse racing since police power could regulate gambling.

3. PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993

There is no valid distinction for a law removing the franking privilege of

the judiciary while leaving the same to the Executive and Legislative despite
the fact that there is considerable volume of mails from the courts. Loss of
revenue is not a valid ground unless it would be withdrawn to all government
offices.

FRANCISCO TATAD vs. THE SECRETARY OF

DEPARTMENT OF ENERGY, G. R. No. 124360,
November 5, 1997

EDCEL LAGMAN, JOKER ARROYO, ENRIQUE

GARCIA, WIGBERTO TANADA, FLAG HUMAN
RIGHTS FOUNDATION vs. HON. RUBEN
TORRES, HON. FRANCISCO VIRAY, PETRON,
FILIPINAS SHELL and CALTEX PHILIPPINES,
G.R. No. 127867, November 5, 1997.

PUNO, J.

These petitions challenge the constitutionality of Republic Act No. 8180

entitled “An Act Deregulating the Downstream Oil Industry and for Other
Purposes”. RA 8180 seeks to end 26 years of government regulation of
the downstream oil industry.

The facts:

1. Prior to 1971, no government agency was regulating the oil industry.

New players were free to enter the oil market without any government
interference. There were four (4) refining companies at that time.
SHELL, CALTEX, BATAAN REFINING COMPANY and FILOIL
MARKETING and six (6) petroleum marketing companies: ESSO,
FILOIL, CALTEX, GETTY, MOBIL and SHELL;
 51
2. In 1971, the country was driven to its knees by the crippling oil crisis and
in order to remedy the same, the OIL INDUSTRY COMMISSION ACT
was enacted REGULATING the oil industry ;
3. On November 9, 1973, then President Marcos created the Philippine
national Oil Corporation (PNOC) t break the control of the foreigners to
the oil industry. It acquired ownership of ESSO Philippines and Filoil and
likewise bought controlling shares of the Bataan Refining Corporation.
PNOC then operated under the business name PETRON CORPORATION
and for the first time, there was a Filipino presence in the Philippine oil
market;
4. In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL
PRICE STABILIZATION FUND (OPSF) to cushion the effects of
frequent changes in the price of oil caused by the exchange rate
adjustments or increase of the world market prices crude oil and imported
petroleum products;
5. By 1985, only three (3) oil companies were left operating in the country.
These are: CALTEX, FILIPINAS SHELL and PNOC;
6. In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172
creating the ENERGY REULATORY BOARD to regulate the business of
importing, exporting, shipping, transporting, processing, refining,
marketing and distributing energy resources “WHEN WARRANTED
AND ONLY WHEN PUBLIC NECESSITY REQUIRES”. The Board
was empowered to “fix and regulate the prices of petroleum products and
other related merchandise;
7. In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry
not later than March, 1997. The law requires that the implementation of
the regulation, shall as far as practicable be made at a time WHEN THE
PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN THE
WORLD ARE DECLINING AND WHEN THE EXCHANGE RATE OF
THE PESO IN RELATION TO THE US DOLLAR; IS STABLE;
8. On February 8, 1997, Executive Order No. 372 was issued by President
Fidel Ramos implementing full deregulation ON THE GROUND THAT
THE OPSF FUND HAS BEEN DEPLETED;
9. The petitioners questioned the constitutionality of RA 8180 on the
following grounds:

a. Section 5 of RA 8180 violates the equal protection clause of the

Constitution;
b. The imposition of different tariff rates does not deregulate the oil industry
and even bars the entry of other players in the oil industry but instead
effectively protects the interest of the oil companies with existing
refineries. Thus, it runs counter to the objective of the law “to foster a
truly competitive market”; The inclusion of Sec. 5 [b] providing for tariff
differential violates Section 26 [1] of Art. VI of the 1987 Constitution
which requires every law to have only one subject which should be
expressed in the title thereof;
 52
c. Section 15 of RA 8180 and EO No. 392 are unconstitutional for undue
delegation of legislative power to the President and the Secretary of
Energy;
d. EO 392 implementing the full deregulation of the oil industry is
unconstitutional since it is arbitrary and unreasonable since it was enacted
due to the alleged depletion of the OPSF fund, a condition which is not
found in RA No. 8180;
e. Section 15 of RA 8180 is unconstitutional for it allows the formation of a
de facto cartel among three existing oil companies in violation of the
Constitution prohibiting against monopolies, combination in restraint of
trade and unfair competition.

The provisions of the law being questioned as unconstitutional are Section

5 [b] and Section 15 which provide:

“Section 5 [b] Any law to the contrary notwithstanding and starting with
the effectivity of this Act, tariff duty shall be imposed and collected on
imported crude oil at the rate of 3% and imported refined petroleum
products at the rate of seven (7%) percent, except fuel oil and LPG, the
rate for which shall be the same; Provided, that beginning on January 1,
2004, the tariff rate on imported crude oil and refined petroleum products
shall be the same; Provided, further, that this provision may be amended
only by an Act of Congress.”

xxx

“ Section 15. Implementation of full deregulation. Pursuant to Section 5

[e] of RA 7638, the DOE, upon approval of the President, implement
full deregulation of the downstream oil industry not later than March,
1997. As far as practicable, the DOE shall time the full deregulation
when the prices of crude oil and petroleum products in the world
market are declining and when the exchange rate of the peso in relation
to the US dollar is stable.”

The issues are:

Procedural Issues:

a. Whether or not the petitions raise justiciable controversy; and

b. Whether or not the petitioners have the standing to question the validity
of the subject law and executive order.

Substantive Issues:

a. Whether or not Section 5 of RA 8180 violates the one title—one subject

requirement of the Constitution;
b. Whether or not Section 5 of RA 8180 violates the equal protection clause
of the Constitution;
 53
c. Whether section 15 violates the constitutional prohibition on undue
delegation of legislative power;
d. Whether or not EO 392 is arbitrary and unreasonable; and
e. Whether or not RA 8180 violates the constitutional prohibition against
monopolies, combinations in restraint of trade and unfair competition.

HELD:

1. Judicial power includes not only the duty of the courts to settle
controversies involving rights 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 agency or branch of the 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. When the statute violates the
Constitution, it is not only the right of the judiciary to declare such act as
unconstitutional and void.
2. The question of locus standi must likewise fall . As held in KAPATIRAN
NG MGA NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC.
VS. TAN, it was held that:

“Objections to taxpayer’s suit for lack of sufficient personality, standing,

or interest are , however, in the main procedural matters. CONSIDERING
THE IMPORTANCE OF THE CASES TO THE PUBLIC, AND IN
KEEPING WITH THE COURT’S DUTY TO DETERMINE WHETHER
OR NOT THE OTHER BRANCHEDS OF GOVERNMENT HAVE
KEPT THEMSELVES WITHIN THE LIMITS OF THE
CONSTITUTION AND THE LAWS AND THAT THEY HAVE NOT
ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS
BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS
TAKEN COGNIZANCE OF THESE PETITIONS.”

There is no disagreement on the part of the parties as to the far-reaching

importance of the validity of RA 8180. Thus, there is no good sense in
being hyper-technical on the standing of the petitioners for they pose
issues which are significant to our people and which deserve our
forthright resolution.

3. It is contended that Section 5[b[ of RA 8180 on tariff differentials violates

the Constitutional prohibition requiring every law to have only one
subject which should be expressed in its title. We do not concur with this
contention. As a policy, the Court has adopted a liberal construction of the
one title---one subject rule. We have consistently ruled that the title need
not mirror, fully index or catalogue all contents and minute details of a
law. A law having a single general subject indicated in the title may
contain a number of provisions, no matter how diverse they may be, so
long as they are not inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by providing for the
 54
method and means of carrying out the general subject. We hold that
Section 5 providing for tariff differential is germane to the subject of RA
8180 which is the deregulation of the downstream oil industry.

4. The contention that there is undue delegation of legislative power when it

authorized the President to determine when deregulation starts is without
merit. The petitioners claim that the phrases “as far as practicable ”,
“decline of crude oil prices in the world market” and “stability of the peso
exchange rate to the US dollar” are ambivalent, unclear and inconcrete in
meaning and could not therefore provide the “determinate or determinable
standards” which can guide the President in his decision to fully
deregulate the oil industry. The power of Congress to delegate the
execution of laws has long been settled by this Court in 1916 in the case
of COMPANIA GENERAL DE TABACOS DE FILIPINA VS. THE
BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT WAS
HELD THAT:

“The true distinction is between the delegation of power to make the law ,
which necessarily involves a discretion as to what it shall be, and
conferring authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter, no
valid objection can be made.”

Two tests have been developed to determine whether the delegation

of the power to execute laws does not involve the abdication of the power
to make law itself. We delineated the metes and bounds of these tests in
EASTERM SHIPPING LINES VS. POEA, thus:

There are two accepted tests to determine whether or not there is a valid
delegation of legislative power , viz: the completeness test and the
sufficiency of standard test. Under the first test, the law must be complete
in all its terms and conditions when it leaves the legislative such that
when it reaches the delegate, the only thing he will do is enforce it. Under
the sufficient standard test, there must be adequate guidelines or
limitations in the law to map out the boundaries of the delegate ’s authority
and prevent the delegation from running riot. BOTH TESTS ARE
INTENDED TO PREVENT A TOTAL TRANSFERENCE OF
LEGISLATIVE AUTHORITY TO THE DELEGATE, WHO IS NOT
ALLOWED TO STEP INTO THE SHOES OF THE LEGISLATURE
AND EXERCISE A POWER ESSENTIALLY LEGISLATIVE.”

The validity of delegating legislative power is now a quiet area in our

constitutional landscape because such has become an inevitability in light
of the increasing complexity of the task of government. In fact, in
HIRABAYASHI VS. UNITED STATES, the Supreme Court through
Justice ISAGANI CRUZ held that “even if the law does not expressly
pinpoint the standard, THE COURTS WILL BEND BACKWARD TO
 55
LOCATE THE SAME ELSEWHERE IN ORDER TO SPARE THE
STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.”

5. EO No. 392 failed to follow faithfully the standards set by RA 8180

when it considered the extraneous factor of depletion of the OPSF Fund.
The misapplication of this extra factor cannot be justified. The executive
is bereft of any right to alter either by addition or subtraction the standards
set by RA 8180 for it has no power to make laws. To cede to the executive
the power to make laws would invite tyranny and to transgress the
separation of powers. The exercise of delegated power is given a strict
scrutiny by courts for the delegate is a mere agent whose action cannot
infringe the terms of the agency.

6. Section 19 of Article XII of the Constitution provides:

“The state shall regulate or prohibit monopolies when the public interests
so requires. No combinations in restraint of trade or unfair competition
shall be allowed.”

A monopoly is a privilege or peculiar advantage vested in one or more

persons or companies, consisting of the exclusive right or power to carry
on a particular business or trade, manufacture a particular article or
control the sale or the whole market structure in which one or only a few
firms dominate the total sales of a product or service. On the other hand, a
combination in restraint of trade is an agreement or understanding
between two or more persons, in the form of contract, trust, pool, holding
company, for the purpose of unduly restricting competition,
monopolizing trade and commerce in a certain commodity, controlling its
production, distribution and price or otherwise interfering with freedom of
trade without statutory authority. Combination in restraint of trade refers
to means while monopoly refers to the end.

Respondents aver that the 4% tariff differential is designed to encourage

new entrants to invest in refineries. They stress that the inventory
requirement is meant to guaranty continuous domestic supply of
petroleum and to discourage fly-by-night operators. They also claim that
the prohibition against predatory pricing is intended to protect prospective
entrants.

The validity of the assailed provisions of RA 8180 has to be decided in the

light of the letter and spirit of Section 19, Art. XII of the Constitution.
While the Constitution embraced free enterprise as an economic creed, it
did not prohibit per se the operation of monopolies which can, however,
be regulated in the public interest. This distinct free enterprise system is
dictated by the need to achieve the goals of our national economy as
defined under Section 1, Art. XII of the Constitution which are: more
equitable distribution of opportunities, income and wealth; a sustained
increase in the amount of goods and services produced by the nation for
 56
all, especially the underprivileged . It also calls for the State to protect
Filipino enterprises against unfair and trades practices.

The provisions on 4% tariff differential, predatory pricing and inventory

requirement blocks the entry of other players and give undue advantage to
the 3 oil companies resulting to monopolies or unfair competition. This is
so because it would take billions for new players to construct refineries,
and to have big inventories. This would effectively prevent new players.

In the case at bar, it cannot be denied that our oil industry is operated and
controlled by an oligopoly (dominated by a handful of players) and a
foreign oligopoly at that. As the dominant players, SHELL, CALTEX &
PETRON boast of existing refineries of various capacities. The tariff
differential of 4% works to their immense advantage. Yet, this is only one
edge on tariff differential. THE OTHER EDGE CUTS AND CUTS DEEP
IN THE HEART OF THEIR COMPETITORS. IT ERECTS HIGH
BARRIERS TO NE PLAYERS. New players in order to equalize must
build their refineries worth billions of pesos. Those without refineries had
to compete with a higher cost of 4%.They will be competing on an uneven
field.

The provision on inventory widens the advantage of PETRON, SHELL

AND CALTEX against prospective new players. The three (3) could
easily comply with the inventory requirement in view of their numerous
storage facilities. Prospective competitors again find compliance oft his
requirement difficult because of prohibitive cost in constructing new
storage facilities. The net effect would be to effectively prohibit the
entrance of new players.

Now comes the prohibition on predatory pricing or “selling or offering to

sell any product at a price unreasonably below the industry average cost
so as to attract customers to the detriment of the competitors ”. According
to HOVENKAMP:

“ The rationale for predatory pricing is the sustaining of losses today

that will give a firm monopoly profits in the future. The monopoly
profits will never materialize, however, if the market is flooded with
new entrants as soon as the successful predator attempts to raise its
price. Predatory pricing will be profitable only if the market contains
significant barriers to new entry.”

Coupled with the 4% tariff differential and the inventory requirement, the
predatory pricing is a significant barrier which discourage new players to
enter the oil market thereby promoting unfair competition, monopoly and
restraint of trade which are prohibited by the Constitution.
 57
ROMA DRUG and ROMEO RODRIGUEZ vs. the
Regional trial Court of Guagua, Pampanga vs. RTC
OF GUAGUA, PAMPANGA, & THE PROVINCIAL
PROSECUTOR OF PAMPANGA, BFAD & GLAXO,
G.R. No. 149907, April 16, 2009

TINGA, J.:

On 14 August 2000, a team composed of the National Bureau of

Investigation (NBI) operatives and inspectors of the Bureau of Food and Drugs
(BFAD) conducted a raid on petitioner Roma Drug, a duly registered sole
proprietorship of petitioner Romeo Rodriguez (Rodriguez) operating a drug
store located at San Matias, Guagua, Pampanga. The raid was conducted
pursuant to a search warrant issued by the Regional Trial Court (RTC), Branch
57, Angeles City. The raiding team seized several imported medicines,
including Augmentin (375mg.) tablets, Orbenin (500mg.) capsules, Amoxil
(250mg.) capsules and Ampiclox (500mg.). It appears that Roma Drug is one of
six drug stores which were raided on or around the same time upon the request
of SmithKline Beecham Research Limited (SmithKline), a duly registered
corporation which is the local distributor of pharmaceutical products
manufactured by its parent London-based corporation. The local
SmithKline has since merged with Glaxo Wellcome Phil. Inc to form Glaxo
SmithKline, private respondent in this case. The seized medicines, which were
manufactured by SmithKline, were imported directly from abroad and not
purchased through the local SmithKline, the authorized Philippine distributor of
these products.

The NBI subsequently filed a complaint against Rodriguez for violation

of Section 4 (in relation to Sections 3 and 5) of Republic Act No. 8203, also
known as the Special Law on Counterfeit Drugs (SLCD), with the Office of
the Provincial Prosecutor in San Fernando, Pampanga. The section prohibits
the sale of counterfeit drugs, which under Section 3(b)(3), includes “an
unregistered imported drug product.” The term “unregistered” signifies the
lack of registration with the Bureau of Patent, Trademark and Technology
Transfer of a trademark, tradename or other identification mark of a drug in the
name of a natural or juridical person, the process of which is governed under
Part III of the Intellectual Property Code.

In this case, there is no doubt that the subject seized drugs are identical in
content with their Philippine-registered counterparts. There is no claim that they
were adulterated in any way or mislabeled at least. Their classification as
“counterfeit” is based solely on the fact that they were imported from abroad
and not purchased from the Philippine-registered owner of the patent or
trademark of the drugs.

Hence, the present Petition for Prohibition questing the RTC-Guagua

Pampanga and the Provincial Prosecutor to desist from further prosecuting
Rodriguez, and that Sections 3(b)(3), 4 and 5 of the SLCD be declared
unconstitutional. In gist, Rodriguez asserts that the challenged provisions
 58
contravene three provisions of the Constitution. The first is the equal
protection clause of the Bill of Rights. The two other provisions are Section
11, Article XIII, which mandates that the State make “essential goods,
health and other social services available to all the people at affordable
cost;” and Section 15, Article II, which states that it is the policy of the
State “ to protect and promote the right to health of the people and instill
health consciousness among them.”

Through its Resolution dated 15 October 2001, the Court issued a

temporary restraining order enjoining the RTC from proceeding with the trial
against Rodriguez, and the BFAD, the NBI and Glaxo Smithkline from
prosecuting the petitioners.

Glaxo Smithkline and the Office of the Solicitor General (OSG) have
opposed the petition, the latter in behalf of public respondents RTC, Provincial
Prosecutor and Bureau of Food and Drugs (BFAD). On the constitutional issue,
Glaxo Smithkline asserts the rule that the SLCD is presumed constitutional,
arguing that both Section 15, Article II and Section 11, Article XIII “are not
self-executing provisions, the disregard of which can give rise to a cause of
action in the courts.” It adds that Section 11, Article XIII in particular cannot be
work “to the oppression and unlawful of the property rights of the legitimate
manufacturers, importers or distributors, who take pains in having imported
drug products registered before the BFAD.” Glaxo Smithkline further claims
that the SLCD does not in fact conflict with the aforementioned constitutional
provisions and in fact are in accord with constitutional precepts in favor of the
people’s right to health.

II.

The constitutional aspect of this petition raises obviously interesting

questions. However, such questions have in fact been mooted with the passage
in 2008 of Republic Act No. 9502, also known as the “Universally Accessible
Cheaper and Quality Medicines Act of 2008”.

Section 7 of Rep. Act No. 9502 amends Section 72 of the Intellectual

Property Code in that the later law unequivocally grants third persons the right
to import drugs or medicines whose patent were registered in the Philippines by
the owner of the product:

“72.1. Using a patented product which has been put on the

market in the Philippines by the owner of the product, or with his
express consent, insofar as such use is performed after that product
has been so put on the said market: Provided, That, with regard to
drugs and medicines, the limitation on patent rights shall apply
after a drug or medicine has been introduced in the Philippines
or anywhere else in the world by the patent owner, or by any
party authorized to use the invention: Provided, further, That
the right to import the drugs and medicines contemplated in this
 59
section shall be available to any government agency or any
private third party;

The unqualified right of private third parties such as petitioner to import

or possess “unregistered imported drugs” in the Philippines is further confirmed
by the “Implementing Rules to Republic Act No. 9502” promulgated on 4
November 2008. The relevant provisions thereof read:

Rule 9. Limitations on Patent Rights. The owner of a patent

has no right to prevent third parties from performing, without his
authorization, the acts referred to in Section 71 of the IP Code as
enumerated hereunder:

(i) Introduction in the Philippines or Anywhere Else in the

World.

Using a patented product which has been put on the market in

the Philippines by the owner of the product, or with his express
consent, insofar as such use is performed after that product has been
so put on the said market: Provided, That, with regard to drugs and
medicines, the limitation on patent rights shall apply after a drug or
medicine has been introduced in the Philippines or anywhere else in
the world by the patent owner, or by any party authorized to use the
invention: Provided, further, That the right to import the drugs and
medicines contemplated in this section shall be available to any
government agency or any private third party. (72.1)

The drugs and medicines are deemed introduced when they

have been sold or offered for sale anywhere else in the world. (n)

It may be that Rep. Act No. 9502 did not expressly repeal any provision of
the SLCD. However, it is clear that the SLCO’s classification of “unregistered
imported drugs” as “counterfeit drugs,” and of corresponding criminal penalties
therefore are irreconcilably in the imposition conflict with Rep. Act No. 9502
since the latter indubitably grants private third persons the unqualified right to
import or otherwise use such drugs. Where a statute of later date, such as Rep.
Act No. 9502, clearly reveals an intention on the part of the legislature to
abrogate a prior act on the subject that intention must be given effect. When a
subsequent enactment covering a field of operation coterminus with a prior
statute cannot by any reasonable construction be given effect while the prior
law remains in operative existence because of irreconcilable conflict between
the two acts, the latest legislative expression prevails and the prior law yields to
the extent of the conflict. Irreconcilable inconsistency between two laws
embracing the same subject may exist when the later law nullifies the reason or
purpose of the earlier act, so that the latter loses all meaning and function. Legis
posteriors priores contrarias abrogant.
 60
For the reasons above-stated, the prosecution of petitioner is no longer
warranted and the quested writ of prohibition should accordingly be issued.

III.

Had the Court proceeded to directly confront the constitutionality of the

assailed provisions of the SLCD, it is apparent that it would have at least placed
in doubt the validity of the provisions. As written, the law makes a criminal of
any person who imports an unregistered drug regardless of the purpose, even if
the medicine can spell life or death for someone in the Philippines. It does not
accommodate the situation where the drug is out of stock in the Philippines,
beyond the reach of a patient who urgently depends on it. It does not allow
husbands, wives, children, siblings, parents to import the drug in behalf of their
loved ones too physically ill to travel and avail of the meager personal use
exemption allotted by the law. It discriminates, at the expense of health, against
poor Filipinos without means to travel abroad to purchase less expensive
medicines in favor of their wealthier brethren able to do so. Less urgently
perhaps, but still within the range of constitutionally protected behavior, it
deprives Filipinos to choose a less expensive regime for their health care by
denying them a plausible and safe means of purchasing medicines at a cheaper
cost.

The absurd results from this far-reaching ban extends to implications that
deny the basic decencies of humanity. The law would make criminals of doctors
from abroad on medical missions of such humanitarian organizations such as
the International Red Cross, the International Red Crescent, Medicin Sans
Frontieres, and other like-minded groups who necessarily bring their own
pharmaceutical drugs when they embark on their missions of mercy. After all,
they are disabled from invoking the bare “personal use” exemption afforded by
the SLCD.

Even worse is the fact that the law is not content with simply banning, at
civil costs, the importation of unregistered drugs. It equates the importers of
such drugs, many of whom motivated to do so out of altruism or basic human
love, with the malevolents who would alter or counterfeit pharmaceutical drugs
for reasons of profit at the expense of public safety. Note that the SLCD is a
special law, and the traditional treatment of penal provisions of special laws is
that of malum prohibitum–or punishable regardless of motive or criminal intent.
For a law that is intended to help save lives, the SLCD has revealed itself as
a heartless, soulless legislative piece.

2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999

3. Taxicab Operators vs. BOT, September 30,l982
4. Bautista vs. Juinio,127 SCRA 329
5. Dumlao vs. COMELEC, 95 SCRA 392
6. Villegas vs. Hiu, 86 SCRA 270
7. Ceniza vs. COMELEC, 95 SCRA 763
8. UNIDO vs. COMELEC, 104 SCRA 38
 61
9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting
opinion of Justice Makasiar
10. Sison vs. Ancheta, 130 SCRA 654
11. Citizens Surety vs. Puno, 119 SCRA 216
12. Peralta vs. COMELEC, 82 SCRA 30
13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306
14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603
15. Flores vs. COMELEC, 184 SCRA 484

CHAPTER IV - THE SEARCH

AND SEIZURE PROVISION

Section 2. The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,

Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)

Sec. 18. Period of detention without judicial warrant of arrest.- The

provisions of Article 125 of the Revised Penal Code, notwithstanding, any
police or law enforcement personnel, who, having been duly authorized
in writing by the Anti-Terrorism Council has taken custody of a person
charged with or suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism shall, WITHOUT INCURRING ANY
CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF
DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES,
DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE
PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3)
DAYS counted from the moment said charged or suspected person has
been apprehended or arrested, detained, and taken into custody by the said
police, or law enforcement personnel: Provided, That the arrest of those
suspected of the crime of terrorism or conspiracy to commit terrorism
must result from the surveillance under Section 7 and examination of
bank deposits under Section 27 pf this Act.

The police or law enforcement personnel concerned shall, before

detaining the person suspected of the crime of terrorism, present him or
 62
her before any judge at the latter’s residence or office nearest the place
where the arrest took place at any time of the day or night. It shall be the
duty of the judge, among other things, to ascertain the identity of the
police or law enforcement personnel and the person or persons they have
arrested and presented before him or her, to inquire of them the reasons
why they have arrested the person and determine by questioning and
personal observation whether or not the subject has been subjected to any
physical, moral or psychological torture by whom and why. The judge
shall then submit a written report of what he/she had observed when the
subject was brought before him to the proper court that has jurisdiction
over the case of the person thus arrested.

The judge shall forthwith submit his report within 3 calendar days
from the time the suspect was brought to his/her residence or office.

Immediately after taking custody of a person charged with or

suspected of the crime of terrorism or conspiracy to commit terrorism, the
police or law enforcement personnel shall notify in writing the judge of
the court nearest the place of apprehension or arrest; provided, That where
the arrest is made during Saturdays, Sundays, holidays or after office
hours, the written notice shall be served at the residence of the judge
nearest the place where the accused was arrested. The penalty of 10 years
and 1 day to 12 years imprisonment shall be imposed upon the police or
law enforcement personnel who fails to notify any judge as provided in
the preceding paragraph.

Section 19. Period of Detention in the event of an actual or

imminent terrorist attack.- In the vent of an actual or imminent terrorist
attack,, suspects may not be detained for more than three days without the
written approval of a municipal, city, provincial or regional official of a
Human Rights Commission, or judge of the municipal, regional trial
court, the Sandiganbayan or a justice of the Court of Appeals nearest the
place of arrest. If the arrest is made during Saturdays, Sundays or
holidays, or after office hours, the arresting police of law enforcement
personnel shall bring the person thus arrested to the residence of any of
the officials mentioned above that is nearest the place where the accused
was arrested. The approval in writing of any of the said officials shall be
secured by the police or law enforcement personnel concerned within five
days after the date of the detention of the persons concerned; Provided,
however, That within three days after the detention the suspects whose
connection with the terror attack or threat is not established, shall be
released immediately.

Section 26 provides that persons who have been charged with

terrorism or conspiracy to commit terrorism---even if they have been
granted bail because evidence of guilt is not strong—can be:

 Detained under house arrest;

 63
 Restricted from traveling; and/or
 Prohibited from using any cellular phones, computers, or other means of
communications with people outside their residence.

Section 39. Seizure and Sequestration.- The deposits and their outstanding
balances, placements, trust accounts, assets, and records in any bank or
financial institution, moneys, businesses, transportation and
communication equipment, supplies and other implements, and property
of whatever kind and nature belonging:

 To any person charged with or suspected of the crime of terrorism or

conspiracy to commit terrorism;
 to a judicially declared and outlawed terrorist organization or group of
persons;
 to a member of such judicially declared and outlawed organization,
association or group of persons,
-shall be seized, sequestered, and frozen in order to prevent their use,
transfer or conveyance for purposes that are inimical to the safety and
security of the people or injurious to the interest of the State.

The accused or suspect may withdraw such sums as are reasonably

needed by his family including the services of his counsel and his family ’s
medical needs upon approval of the court. He or she may also use any of
his property that is under seizure or sequestration or frozen because of
his/her indictment as a terrorist upon permission of the court for any
legitimate reason.

Section 40. The seized, sequestered and frozen bank deposits…shall be

deemed property held in trust by the bank or financial institution and that
their use or disposition while the case is pending shall be subject to the
approval of the court before which the case or cases are pending.

Section 41. If the person suspected as terrorist is acquitted after

arraignment or his case dismissed before his arraignment by a competent
court, the seizure…shall be lifted by the investigating body or the
competent court and restored to him without delay. The filing of an appeal
or motion for reconsideration shall not stay the release of said funds from
seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall

automatically forfeited in favor of the government.

Requisites of a valid search warrant

Read:

a. Essentials of a valid search warrant,145 SCRA 739

 64

b. Validity of a search warrant and the admissibility of evidence obtained

in violation thereof.

c. The place to be searched as indicated in the warrant is controlling

PEOPLE VS. CA, 291 SCRA 400

Narvasa, CJ

In applying for a search warrant, the police officers had in their

mind the first four (4) separate apartment units at the rear of ABIGAIL
VARIETY STORE in Quezon City to be the subject of their search. The
same was not, however, what the Judge who issued the warrant had in
mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN
THE SEARCH WARRANT. As such, any evidence obtained from the
place searched which is different from that indicated in the search warrant
is inadmissible in evidence for any purpose and in any proceeding.

This is so because it is neither licit nor fair to allow police officers to

search a place different from that stated in the warrant on the claim that
the place actually searched---although not that specified in the search
warrant---is exactly what they had in view when they applied for the
warrant and had demarcated in their supporting evidence. WHAT IS
MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS
THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE
APPLICANTS HAD IN THEIR THOUGHTS, OR HAD
REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE
COURT ISSUING THE WARRANT. As such, it was not just a case of
“obvious typographical error”, but a clear case of a search of a place
different from that clearly and without ambiguity identified in the search
warrant.

NOTE: Very Important: Where a search warrant is issued by one

court and the criminal action base don the results of the search is
afterwards commenced in another court, IT IS NOT THE RULE THAT A
MOTION TO QUASH THE WARRANT (or to retrieve the things seized)
MAY BE FILED ONLY IN THE ISSUING COURT---SUCH A MOTION
MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING
COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS
PENDING.

d. Validity of a warrantless search and seizure as a result of an informer ’s

tip. Note the two (2) conflicting decisions of the Supreme Court.

PEOPLE VS. ARUTA, 288 SCRA 626

 65
On December 13, 1988, P/Lt. Abello of the Olongapo PNP was
tipped off by an informer that Aling Rosa would be arriving from Baguio
City the following day with a large volume of marijuana. As a result of
the tip, the policemen waited for a Victory Bus from Baguio City near the
PNB Olongapo, near Rizal Ave. When the accused got off, she was
pointed to by the informer. She was carrying a traveling bag at that time.
She was not acting suspiciously. She was arrested without a warrant.

The bag allegedly contained 8.5 kilos of marijuana. After trial, she
was convicted and imposed a penalty of life imprisonment.

Issue:

Whether or not the marijuana allegedly taken from the accused is

admissible in evidence.

Held:

Warrantless search is allowed in the following instances:

1. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest; and
6. stop and frisk measures.

The above exceptions to the requirement of a search warrant,

however, should not become unbridled licenses for law enforcement
officers to trample upon the conditionally guaranteed and more
fundamental right of persons against unreasonable search and seizures.
The essential requisite of probable cause must still be satisfied before a
warrantless search and seizure can be lawfully conducted. In order that the
information received by the police officers may be sufficient to be the
basis of probable cause, it must be based on reasonable ground of
suspicion or belief a crime has been committed or is about to be
committed.

The marijuana obtained as a result of a warrantless search is

inadmissible as evidence for the following reasons:

a. the policemen had sufficient time to apply for a search warrant but they
failed to do so;
b. the accused was not acting suspiciously;
c. the accused’s identity was previously ascertained so applying for a
warrant should have been easy;
d. the accused in this case was searched while innocently crossing a street
 66
Consequently, there was no legal basis for the police to effect a
warrantless search of the accused’s bag, there being no probable cause and
the accused’s not having been legally arrested. The arrest was made only
after the accused was pointed to by the informant at a time when she was
not doing anything suspicious. The arresting officers do not have personal
knowledge that the accused was committing a crime at that time.

Since there was no valid warrantless arrest, it logically follows that

the subsequent search is similarly illegal, it being not incidental to a
lawful arrest. This is so because if a search is first undertaken, and an
arrest effected based on the evidence produced by the search, both such
search and arrest would be unlawful, for being contrary to law.

This case is similar tot he case of PEOPLE VS. AMINNUDIN, and

PEOPLE VS. ENCINADA.

PEOPLE VS. MONTILLA, 284 SCRA 703

On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1

Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER
that a drug courier would be arriving in Barangay Salitran, Dasmarinas,
Cavite, from Baguio City, with an undetermined amount of marijuana.
The informer likewise informed them that he could recognize said person.

At about 4 in the morning of June 20, 1994, the appellant was

arrested by the above-named police officers while alighting from a
passenger jeepney near a waiting shed in Salitran, Dasmarinas, Cavite,
upon being pointed to by the informer. The policemen recovered 28 kilos
of dried marijuana leaves. The arrest was without warrant.

The trial court convicted the appellant for transporting marijuana

based on the testimonies of the Above-named police officers without
presenting the alleged informer.

Issue:

Was the warrantless arrest valid?

Held:

The accused claims that the warrantless search and seizure is illegal
because the alleged information was received by the police on June 19,
1994 and therefore, they could have applied for a search warrant. The said
contention is without merit considering that the information given by the
informer is too sketchy and not detailed enough for the obtention of the
corresponding arrest or search warrant. While there is indication that the
informer knows the courier, the records do not show that he knew his
 67
name. On bare information, the police could not have secured a warrant
from a judge.

Furthermore, warrantless search is allowed in the following

instances:

1. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest; and
6. stop and frisk measures.

Since the accused was arrested for transporting marijuana, the

subsequent search on his person is justified. An arresting officer has the
right to validly search and seize from the offender (1) dangerous weapons;
and (2) those that may be used as proof of the commission of the offense.

In the case at bar, upon being pointed to by the informer as the drug
courier, the policemen requested the accused to open and show them the
contents of his bag and the cartoon he was carrying and he voluntarily
opened the same and upon cursory inspection, it was found out that it
contains marijuana. Hence the arrest.

The accused insists that it is normal for a person traveling with a bag
and cartoon which should not elicit the slightest suspicion that he was
committing a crime. In short, there was no probable cause for this
policemen to think that he was committing a crime.

The said contention was considered without merit by the Supreme

Court considering the fact that he consented to the search as well as the
fact that the informer was a reliable one who had supplied similar
information to the police in the past which proved positive.

(NOTE: The SC held that the non-presentation of the informer does not
affect the case for the prosecution because he is not even the best witness. He
is merely a corroborative witness to the arresting officers. )

JUSTICE PANGANIBAN:

To say that “reliable tips” from informers constitute probable cause for a
warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES
IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY
DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA
1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA,
October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA).
 68
The case is similar to the case of People vs. Encimada where the appellant
was searched without a warrant while disembarking from a ship on the strength
of a tip from an informer received by the police the previous afternoon that the
appellant would be transporting prohibited drugs. The search yielded a plastic
package containing marijuana. On Appeal, the SC reversed the decision of
conviction and held that Encinada did not manifest any suspicious behavior that
would necessarily and reasonably invite the attention of the police.

ELI LUI, ET AL. VS. MATILLANO, May 27, 2004

Right against unreasonable searches and

seizures; Mission Order does not authorize an
illegal search. Waiver of the right against an
unreasonable search and seizure.

In search of the allegedly missing amount of P45,000.00 owned by

the employer, the residence of a relative of the suspect was forcibly open
by the authorities by kicking the kitchen door to gain entry into the house.
Thereafter, they confiscated different personal properties therein which
were allegedly part of those stolen from the employer. They were in
possession of a mission order but later on claimed that the owner of the
house gave his consent to the warrantless search. Are the things
admissible in evidence? Can they be sued for damages as a result of the
said warrantless search and seizure?

Held:

The right against unreasonable searches and seizures is a personal

right which may be waived expressly or impliedly. BUT A WAIVER BY
IMPLICATION CANNOT BE PRESUMED. There must be clear and
convincing evidence of an actual intention to relinquish the right. There
must be proof of the following:

a. that the right exists;

b. that the person involved had knowledge, either constructive or actual, of
the existence of said right;
c. that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and

intelligently in order that the said is to be valid.

The search was therefore held illegal and the members of the
searching party held liable for damages in accordance with the doctrine
laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.

e. General or roving warrants

 69
Read:

1. Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search

warrants issued on different dates against them and the corporations in
which they are officers, directing the peace officer to search the persons
above-named and/or the premises of their offices, warehouses and to seize
and take possession of the following personal property, to wit:

"Books of accounts, financial records, vouchers, correspondence, receipts,

ledgers, journals, typewriters and other documents or papers showing all
business transactions including disbursement receipts, balance sheets and
profit and loss statements"

since they are the subject of the offense of violating the CENTRAL
BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL
REVENUE CODE AND THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being
violative of the Constitutional provision on search and seizure on the
ground that:

a. The search warrants did not particularly describe the documents, books
and things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases

against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a

manner provided for by law.
Issue:

Were the searches and seizures made in the offices and residences of
the petitioners valid?

a. As to the searches made on their offices, they could not question

the same in their personal capacities because the corporations have a
personality separate and distinct with its officers. An objection to an
unlawful search and seizure IS PURELY PERSONAL AND CANNOT
BE AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE
PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN
 70
EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND
THINGS SEIZED FROM THE OFFICES AND PREMISES OF THE
CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG,
AND MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN
PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL
CAPACITY.

b. As to the documents seized in the residences of the petitioners, the

same may not be used in evidence against them because the warrants
issued were in the nature of a general warrant for failure to comply with
the constitutional requirement that:

1. that no warrant shall issue but upon probable cause, to be determined

by the judge in the manner set forth in said provision; and

2. that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested

warrants. They were issued upon applications stating that the natural and
juridical persons therein named had committed a violation of Central bank
Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal
Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN
ALLEGED IN SAID APPLICATIONS. THE AVERMENTS THEREOF
WITH RESPECT TO THE OFFENSE COMMITTED WERE
ABSTRACT. AS A CONSEQUENCE, IT WAS IMPOSSIBLE FOR
THE JUDGE WHO ISSUED THE WARRANTS TO HAVE FOUND
THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME
PRESUPPOSES THE INTRODUCTION OF COMPETENT PROOF
THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS
PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC
OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR
CRIMINAL LAWS.

2. Bache vs. Ruiz, 37 SCRA 823

3. Secretary vs. Marcos, 76 SCRA 301
4. Castro vs. Pabalan, April 30,l976
5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa,
falsification, tax evasion and insurance fraud is a general warrant and therefore
not valid)
6. Collector vs. Villaluz, June 18,1976
7. Viduya vs. Verdiago, 73 SCRA 553
8. Dizon vs. Castro, April 12, 1985
9. People vs. Veloso, 48 Phil. 169
10. TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101.
“ A SCATTER-SHOT WARRANT is a search warrant issued for more than
one specific offense like one for estafa, robbery, theft and qualified theft”)
 71
f. Define probable cause. Who determines probable cause?

a. ROBERTS VS. CA, 254 SCRA 307

b. DE LOS SANTOS VS. MONTESA, 247 SCRA 85

VICENTE LIM,SR. AND MAYOR SUSANA LIM

VS.HON. N. FELIX (G.R. NO. 99054-57)

EN BANC

GUTIERREZ, JR. J.

Facts:
--------

Petitioners are suspects of the slaying of Congressman Moises

Espinosa, Sr. and three of his security escorts and the wounding of
another. They were initially charged, with three others, with the crime of
multiple murder with frustrated murder. After conducting a preliminary
investigation, a warrant of arrest was issued on July 31, 1989. Bail was
fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the

case, issued a Resolution affirming the finding of a prima facie case
against the petitioners but ruled that a case of Murder for each of the
killing of the four victims and a physical injuries case for inflicting
gunshot wound on the survivor be filled instead against the suspects.
Thereafter, four separate informations to that effect were filed with the
RTC of Masbate with no bail recommended.

On November 21, 1989, a motion for change of venue, filed by the

petitioners was granted by the SC. It ordered that the case may be
transferred from the RTC of Masbate to the RTC of Makati.

Petitioners then moved that another hearing ba conducted to

determine if there really exists a prima facie case against them in the light
of documents showing recantations of some witnesses in the preliminary
investigation. They likewise filed a motion to order the transmittal of
initial records of the preliminary investigation conducted by the municipal
judge of Barsaga of Masbate. These motions were however denied by the
court because the prosecution had declared the existence of probable
cause, informations were complete in form in substance , and there was
no defect on its face. Hence it found it just and proper to rely on the
prosecutors certification in each information.

ISSUE:
----------
 72

Whether or not a judge may issue a warrant of arrest without bail by

simply relying on the prosecutions certification and recommendation that
a probable cause exists?

Held:
-----

1. The judge committed a grave abuse of discretion.

In the case of Placer vs. Villanueva, the sc ruled that a judge may
rely upon the fiscal's certification of the existence of a probable cause and
on the basis thereof, issue a warrant of arrest. However, the certification
does not bind the judge to come out with the warrant of arrest. This
decision interpreted the "search and seizure" provision of the 1973
Constitution. Under this provision, the judge must satisfy himself of the
existence of probable cause before issuing a warrant of order of arrest. If
on the face of information, the judge finds no probable cause, he may
disregard the fiscal's certification and require the submission of the
affidavits of witness to aid him at arriving at a conclusion as to the
existence of a probable cause. This has been the rule since U.S vs.
Ocampo and Amarga vs. Abbas.

2. In the case of Soliven vs. Makasiar, decided under the 1987

Constitution, the Court noted that the addition of the word personally after
the word determined and the deletion of the grant of authority by the 1973
Constitution to issue warrants to other respondent officers as to may be
authorized by law does not require the judge to personally examine the
complainant and his witness in his determination of probable cause for the
issuance of a warrant of arrest.What the Constitution underscores is the
exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. Following established doctrine
and procedures, he shall:

(1) personally evaluate the reports and the supporting documents

submitted by the fiscal regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest;

(2) If on the basis thereof he finds no probable cause, he may

disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.

3. The case of People vs. Honorable Enrique B. Inting reiterates

the following doctrines:
 73
(1) The determination of probable cause is a function of the
judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election
Supervisor to ascertain. Only the judge alone makes this detemination.

(2) The preliminary inquiry made by the prosecutor does not

bind the judge. It merely assist him to make the determination of probable
cause. The judge does not have to follow what the prosecutor's present to
him. By itself, the prosecutor's certification of probable cause is
ineffectual. It is the report, the affidavits, the transcripts of stenographic
notes, and all other supporting documents behind the prosecutor's
certification which are material in assisting the judge to make his
determination.

(3) Preliminary inquiry should be distinguished from the

preliminary investigation proper. While the former seeks to determine
probable cause for the issuance of warrant of arrest, the latter ascertains
whether the offender should be held for trial or be released.

4. 4. In the case of Castillo vs. Villaluz, the court ruled that

judges of RTC no longer have authority to conduct preliminary
investigations: This authority was removed from them by the 1985 Rules
on Criminal Procedure, effective on January 1, 1985.

5. In the present case, the respondent judge relies solely on the

certification of the prosecutor. Considering that all the records of the
investigation are in Masbate, he has not personally determined the
existence of probable cause. The determination was made by the
provincial prosecutor. The constitutional requirement had not been
satisfied.

The records of the preliminary investigation conducted by the

Municipal Court of Masbate and reviewed by the respondent Fiscal were
still in Masbate when the respondent Fiscal issued the warrant of arrest
against the petitioners. There was no basis for the respondent judge to
make his personal determination regarding the existence of probable
cause from the issuance of warrant of arrest as mandated by the
Constitution. He could not have possibly known what has transpired in
Masbate as he had nothing but a certification. Although the judge does not
have to personally examine the complainant and his witnesses (for the
prosecutor can perform the same functions as commissioner for taking of
evidence) there should be a report and necessary documents supporting
the Fiscal's bare certification. All of these should be before the judge.

1. Amarga vs. Abbas, 98 Phil. 739

1-a. 20th Century Fox vs. CA, 164 SCRA 655
1-b. Quintero vs. NBI, 162 SCRA 467
1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No.
83578, March 16, 1989
 74

SOLIVEN VS. MAKASIAR, 167 SCRA 393

The word “ personally” after the word determined does not necessarily
mean that the judge should examine the complainant and his witnesses
personally before issuing the search warrant or warrant of arrest but the
exclusive responsibility on the part of said judge to satisfy himself of the
existence of probable cause. As such, there is no need to examine the
complainant and his witnesses face to face. It is sufficient if the judge is
convinced of the existence of probable cause upon reading the affidavits or
deposition of the complainant and his witnesses.

1-e. Pendon vs. CA, Nov. 16, 1990

1-f. P. vs. Inting, July 25, 1990
1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the
Motion for Reconsideration in November, 1991
1-h. Paderanga vs. Drilon, April 19, 1991
2. Department of Health vs. Sy Chi Siong, Inc., GR No. 85289,
February 20, 1989
2-a. P. vs. Villanueva, 110 SCRA 465
2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to
determine probable insofar as the issuance of a warrant of arrest is concerned)
3. Tolentino vs. Villaluz,July 27,1987
4. Cruz vs. Gatan, 74 SCRA 226
5. Olaes vs. P., 155 SCRA 486
7. Geronimo vs. Ramos, 136 SCRA 435

JUAN PONCE ENRILE VS. JUDGE JAIME

SALAZAR, ET AL., G.R.NO. 92163, June 5, 1990

Due process; right to bail; probable cause for

the issuance of a warrant of arrest
(Note: This might be useful also in your Criminal Law)

Narvasa, J.

On February 27, 1990, Senator Juan Ponce Enrile was arrested by law
enforcement officers led by NBI Director Alfredo Lim on the strength of a
warrant of arrest issued by the respondent judge, HON. JAIME
SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal
Case No. 90-10941. The warrant was issued on an information signed and
filed earlier in the day by Senior State Prosecutor AURELIO TRAMPE
charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and
Gregorio Honasan with the crime of rebellion with murder and multiple
frustrated murder allegedly committed during the period of the failed coup
attempt from November 29 to December 10, 1990. Senator Enrile was
taken to and held overnight at the NBI Headquarters on Taft Ave., Manila,
 75
WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN THE
INFORMATION AND NONE FIXED IN THE WARRANT OF
ARREST.

On February 28, 1990, petitioner through counsel filed a petition for

Habeas Corpus alleging that he was deprived of his constitutional rights in
being, or having been:

a. held to answer for a criminal offense which does not exist in the
statute books;

b. charged with a criminal offense in an information for which no

complaint was initially filed or preliminary investigation was conducted,
hence, he was denied due process;

c. denied the right to bail; and

d. arrested or detained on the strength of warrant issued without

the judge who issued it first having personally determined the existence of
probable cause.

HELD:

The parties' oral and written arguments presented the following options:

1. Abandon the Hernandez Doctrine and adopt the dissenting opinion

of Justice Montemayor that "rebellion cannot absorb more serious
crimes";

2. Hold Hernandez Doctrine applicable only to offenses committed in

furtherance, or as necessary means for the commission, of rebellion, BUT
NOT TO ACTS COMMITTED IN THE COURSE OF A REBELLION
WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR
LESS GRAVE CHARACTER;

3. Maintain Hernandez Doctrine as applying to make rebellion absorb

all other offenses committed in its course, whether or not necessary to its
commission or in furtherance thereof.

1. On the first option, 11 justices voted AGAINST abandoning

Hernandez. Two members felt that the doctrine should be re-examined. In
view of the majority, THE RULING REMAINS GOOD LAW, ITS
SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL
SUBSEQUENT CHALLENGES AND NO NEW ONES ARE
PRESENTED HERE PERSUASIVE ENOUGH TO WARRANT A
COMPLETE REVERSAL. This is so because of the fact that the
incumbent President (exercising legislative powers under the 1986
Freedom Constitution) repealed PD No. 942 which added a new provision
 76
of the Revised Penal Code, particularly Art. 142-A which sought to nullify
if not repealed the Hernandez Doctrine. In thus acting, the President in
effect by legislative fiat reinstated the Hernandez as a binding doctrine
with the effect of law. The Court can do no less than accord it the same
recognition, absent any sufficiently powerful reason against so doing.

2. On the second option, the Supreme Court was unanimous in voting to

reject the same though four justices believe that the arguments in support
thereof is not entirely devoid of merit.

3. With the rejection of the first two options, the Hernandez Doctrine
remains a binding doctrine operating to prohibit the complexing of
rebellion with any other offense committed on the occasion thereof, either
as a means necessary to its commission or as unintended effect of an
activity that constitutes rebellion.

On the issues raised by the petitioner:

a. By a vote of 11-3, the Court ruled that the information filed against the
petitioner does in fact charge an offense despite the objectionable phrasing
that would complex rebellion with murder and multiple frustrated
murder, that indictment is to be read as charging SIMPLE REBELLION.
The petitioner's contention that he was charged with a crime that does not
exist in the statute books, WHILE TECHNICALLY CORRECT SO FAR
AS THE COURT RULED THAT REBELLION MAY NOT BE
COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE
OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A
MERE FLIGHT OF RHETORIC. Read in the context of Hernandez, the
information does indeed charge the petitioner with a crime defined and
punished by the Revised Penal Code: SIMPLE REBELLION.

b. Was the petitioner charged without a complaint having been initially

filed and/or preliminary investigation conducted? The record shows that a
complaint for simple rebellion against petitioner was filed by the NBI
Director and that based on the strength of said complaint a preliminary
investigation was conducted by the respondent prosecutors culminating in
the filing of the questioned information. THERE IS NOTHING
INHERENTLY IRREGULAR OR CONTRARY TO LAW IN FILING
AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE
DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY
COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED
DURING THE PRELIMINARY INVESTIGATION.

c. The petitioner claims that the warrant issued is void because it was
issued barely one hour and twenty minutes after the case was raffled to the
respondent judge which could hardly gave him sufficient time to
personally go over the voluminous records of the preliminary
investigation. Also, the petitioner claims that the respondent judge issued
 77
the warrant for his arrest without first personally determining the
existence of probable cause by examining under oath or affirmation the
complainant and his witnesses, in violation of Art. III, Section 2, of the
Constitution. This Court has already ruled that it is not unavoidable duty
of the judge to make such a personal examination, it being sufficient that
he follows established procedure by PERSONALLY EVALUATING THE
REPORT AND THE SUPPORTING DOCUMENT SUBMITTED BY
THE PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT
JUDGE HAD WHAT SOME MIGHT CONSIDER ONLY A
RELATIVELY BRIEF PERIOD WITHIN WHICH TO COMPLY WITH
THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD
NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT
SINGLE CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL
PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY
PERFORMED.

d. Petitioner also claims that he is denied of his constitutional right to bail.

In the light of the Court's affirmation of Hernandez as applicable to
petitioner's case, and of the logical and necessary corollary that the
information against him should be considered as charging only the crime
of simple rebellion which is bailable before conviction, THAT MUST
NOW BE ACCEPTED AS A CORRECT PROPOSITION.

NOTES:

This might be useful also in your Remedial Law.

Was a petition for Habeas Corpus before the Supreme Court the
appropriate vehicle for asserting a right to bail or vindicating its denial?

The Supreme Court held that the criminal case before the respondent
judge is the normal venue for invoking the petitioner's right to have
provisional liberty pending trial and judgment. The correct course was for
the petitioner to invoke that jurisdiction by filing a petition to be admitted
to bail, claiming a right to bail per se or by reason of the weakness of the
evidence against him. ONLY AFTER THAT REMEDY WAS DENIED
BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF
THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT
WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF
APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.

Even assuming that the petitioner's premise that the information

charges a non-existent crime would not excuse or justify his improper
choice of remedies. Under either hypothesis, the obvious recourse would
have been a motion to quash brought in the criminal action before the
respondent judge.

g. Warrantless searches and seizures--when valid

 78
or not. Is "Operation Kapkap" valid?

Read:

PEOPLE VS. MENGOTE, G.R. No. 87059, June,

1992, 210 SCRA 174

Warrantless search and

seizure

Cruz, J.

Facts|
------

1. On August 8, 1987, the Western Police District received a telephone

call from an informer that there were three suspicious-looking persons at
the corner of Juan Luna and North Bay Blvd., in Tondo, Manila;

2. When the surveilance team arrived therein, they saw the accused
"looking from side to side" and "holding his abdomen". They approched
these persons and identified themselves as policement that is why they
tried to ran away because of the other lawmen, they were unable to
escape;

3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated
from the accused and several days later, an information for violation of
PD 1866 was filed against him;

4. After trial, Mengote was convicted of having violated PD 1866 and was
sentenced to suffer reclusion perpetua based on the alleged gun as the
principal evidence. Hence this automatic appeal.

Issue:
------

Was there a valid warrantless search and seizure?

Held:
-----

There is no question that evidence obtained as a result of an illegal

search or seizure is inadmissible in any proceeding for any purpose. That
is the absolute prohibition of Article III, Section 3 [2], of the
Constitution. This is the celebrated exclusionary rule based on the
justification given by Justice Learned Hand that "only in case the
 79
prosecution, which itself controls the seizing officials, knows that it
cannot profit by their wrong will the wrong be repressed."

Section 5, Article 113 of the Rules of Court provides:

Sec. 5. Arrest without warrant; when lawful.- A peace officer or

private person may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

x x x

We have carefully examined the wording of this Rule and cannot see
how we we can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not

an escapee from a penal institution when he was arrested. We therefore
confine ourselves to determining the lawfulness of his arrest under either
Par. (a) or Par. (b) of this Section.

Par. (a) requires that the person be arrested (1) after he has
committed or while he is actually committing or is at least attempting to
commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At

the time of the arrest in question, the accused-appellant was merely
"looking from side to side" and "holding his abdomen," according to the
arresting officers themselves. There was apparently no offense that had
just been committed or was being actually committed or at least being
attempted by Mengote in thie presence.

The Solicitor General submits that the actual existence of an

offense was not necessary as long as Mengote's acts created a
reasonable suspicion on the part of the arresting officers and induced in
them the belief that an offense had been committed and that accused-
appellant had committed it". The question is, What offense? What offense
could possibly have been suggested by a person "looking from side to
side" and "holding his abdomen" and in aplace not exactly forsaken.
 80

These are certainly not sinister acts. And the setting of the arrest
made them less so, if at all. It might have been different if Mengote had
been apprehended at an unholy hour and in a place where he had no
reason to be, like a darkened alley at 3 o'clock in the morning. But he was
arrested at 11:30 in the morning and in a crowded street shortly after
alighting from a passenger jeep with his companion.He was not skulking
in the shadows but walking in the clear light of day. There was nothing
clandestine about his being on that street at that busy hour in the blaze of
the noonday sun.

On the other hand, there could have been a number of reasons, all
of them innoent, why hiseyes were darting from side to sideand he was
holding his abdomen. If they excited suspicion in the minds of the
arresting officers, as the prosecution suggests, it has nevertheless not
been shown what their suspicion was all about.

xxx

The case before us is different because there was nothing to support

the arresting officers' suspicion other than Mengote's darting eyes and his
hand on his abdomen. By no stretch of the imagination could it have been
inferred from these acts that an offense had just been committed, or was
actually being committed, or was at least being attempted in their
presence.

This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where

the Court held that a warrantless arrest of the accused was
unconstitutional. This was effected while he was coming down the vessel,
to all appearances no less innocent than the other disembarking
passengers. He had not committed nor was actually committing or
attempting to commit an offense in the presence of the arresting officers.
He was not even acting suspiciously. In short, there was no probable cause
that, as the prosecution incorrectly suggested, dispensed with the
constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent

requirements have also not been satisfied. Theprosecution has not shown
that at the time of Mengote's arrest an offense had in fact been committed
and that the arresting officers had personal knowldge of facts indicating
that Mengote had committed it. All they had was hearsay information
from the telephone caller, and about a crime that had yet to bem
committed.

xxx
In the landmark case of People vs. Burgos, 144 SCRA 1, this
Court declared:
 81
Under Section 6(a) of Rule 113, the officer arresting a person who
has just committed, is committing, or is about to commit an offense must
have personalknowledge of that fact. The offense must also be committed
in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80
Phil. 859).

xxx

In arrests without a warrant under Section 6(b), however, it is not

enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually have
been committed first. That a crime has actually been committed is an
essential precondition. It is not enough to suspect that a crime may have
been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of
the perpetrator..

This doctrine was affirmed in Alih vs. Castro, 151 SCRA 279, thus:

If the arrest was made under Rule 113, Section 5, of the Rules of
Court in connection with a crime about to be committed, being
committed, or just committed, what was that crime? There is no
allegation in the record of such a falsification. Parenthetically, it may be
observed that under the Revised Rule 113, Section 5(b), the officer
making the arrest must have personal knowledge of the ground therefor
as stressed in the recent case of People vs. Burgos.

It would be a sad day, indeed, if any person could be summarily

arrested and searched just because he is holding his abdomen, even if it
be possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may have
committed a criminal act is actually committing or attempting it. This
simply cannot be done in a free society. This is not a police state where
order is exalted over liberty or, worse, personal malice on the part ofthe
arresting officer may be justified in the name of security.

xxx

The court feels that if the peace officers had been more mindful of
the provisions of the Bill of Rights, the prosecution of the accused-
appellant might have succeeded. As it happened, they allowed their over
zealousness to get the better of them, resulting in their disregard of the
requirements of a valid search and seizure that rendered inadmissible the
evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness

may be the very cause of the acquittal of persons who deserve to be
 82
convicted, escaping the clutches of the law, because, ironically enough, it
has not been observed by those who are supposed to enforce it.

When illegal arrest is deemed waived.

Warrantless arrest; no personal knowledge of the arresting officer

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman arrested the accused-appellant on the basis solely of

what Reynaldo Castro had told him and not because he saw the accused-
appellant commit the crime charged against him. Indeed, the prosecution
admitted that there was no warrant of arrest issued against accused-
appellant when the latter was taken into custody. Considering that the
accused-appellant was not committing a crime at the time he was arrested
nor did the arresting officer have any personal knowledge of facts
indicating that accused-appellant committed a crime, his arrest without a
warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment,

the accused-appellant waived his right to raise the issue of illegality of his
arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF
ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES
JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE
MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE
OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST
WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT
TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED.

g-1. Warrantless Search and seizure by a private person. (Valid since

the constitutional provision is not applicable to him; when it is not valid)

Read:
1. PEOPLE VS. MENDOZA, 301 SCRA 66

Warrantless searches and seizures by private individuals

2. SILAHIS INTERNATIONAL HOTEL, INC. VS.

ROGELIO SOLUTA, ET AL., 482 SCRA 660

Carpio-Morales, J.
 83
The petitioner suspects that the respondents who are officers of the
Silahis International Hotel Union were using the Union Office located
inside the hotel in the sale or use of marijuana, dollar smuggling, and
prostitution. They arrived at the said conclusion through surveillance.

In the morning of January 11, 1988, while the respondent union

officer was opening the Union Office, security officers of the plaintiff
entered the union office despite objections thereto by forcibly opening the
same. Once inside the union office they started to make searches which
resulted in the confiscation of a plastic bag of marijuana. An information
for violation of the dangerous drugs act was filed against the respondent
before the RTC of Manila which acquitted them on the ground that the
search conducted was illegal since it was warrantless and without consent
by the respondents.

After their acquittal, the respondents filed a case for Malicious

Prosecution against the petitioner for violation of Art. 32 of the Civil
Code. After trial, the Regional Trial Court held that petitioners are liable
for damages as a result of an illegal search. The same was affirmed by the
Court of Appeals.

Issue:

Whether the warrantless search conducted by the petitioners (private

individual and corporation) on the union office of the private respondents
is valid.

Held:

The search is not valid and they are civilly liable under Art. 32 of the
Civil Code. The fact that the union office is part of the hotel owned by the
petitioners does not justify the warrantless search. The alleged reports that
the said union office is being used by the union officers for illegal
activities does not justify their acts of barging into the said office without
the consent of the union officers and without a search warrant. If indeed
there was surveillance made, then they should have applied for a search
warrant.

The ruling in People vs. Andre Marti is not applicable here because
in Marti, a criminal case, the issue was whether an act of a private
individual, allegedly in violation of one’s constitutional rights may be
invoked against the State. In other words, the issue in Marti is whether the
evidence obtained by a private person acting in his private capacity
without the participation of the State, is admissible.

3. PEOPLE OF THE PHILIPPINES VS. ANDRE

MARTI
 84
G.R. NO. 81561, January 18, 1991

Warrantless Search and seizure

by a private person

Bidin, J.

FACTS:

Andre Marti and his common-law wife, Shirley Reyes went to

Manila Packaging and Export Forwarders to send four (4) packages to
Zurich, Switzerland. Anita Reyes, owner of the place (no relation to
Shirley), received said goods and asked if she could examine and inspect
it. Marti refused. However later, following standard operating procedure,
Job Reyes, co-owner and husband of Anita opened the boxes for final
inspection, before delivering it to the Bureau of Customs and/or Bureau of
Posts.

Upon opening, a peculiar odor emanated from the box that was
supposed to contain gloves. Upon further perusal, he felt and saw a dried
leaves inside the box. Job Reyes then brought samples to the NBI, he told
them that the boxes to be shipped were still in his office. In the presence
of the NBI agents, Reyes opened the box and discovered that the odor
came from the fact that the dried leaves were actually those of the
marijuana flowering tops.

Two other boxes,marked as containing books and tabacalera cigars;

also revealed bricks or case-like marijuana leaves and dried marijuana
leaves respectively.

Marti was later invited by the NBI to shed light on the attempted
shipment of the dried leaves. Thereafter an information was filed against
the appellant for violating RA 6425 or the Dangerous Drugs Act. The
Special Criminal Court of Manila convicted accused Marti of violating
sec.21(b) of said RA.

ISSUES:
------------

1. Did the search conducted by a private person, violate accused's

right against unreasonable searches seizures and invocable against the
state?

2. Was the evidence procured from the search admissible?

Held:
 85
--------

1. No, constitutional protection on search and seizure is imposable only

against the state and not to private persons.

Since Art. III,2 of the 1987 constitution is almost verbatim from the
United States constitution, the SC may consider US Fed. SC cases as
likewise doctrinal in this jurisdiction. Hence, in US cases, the
constitutional provision against unreasomable searches and seizure was
intended as a restraint upon the activities of the sovereign authority and
NOT intended against private persons. If a search was initiated by a
private person the provision does not apply since it only proscribes
government action. This view is supported by the deliberations by the
1986 Constitutional Commission.

In short, the protection against unreasonable searches and seizures

cannot be extended to acts comitted by private individuals so as to bring it
within the ambit of alleged unlawful intrusion.

Case at bar will show that it was Job Reyes` initiative that
perpetrated the search. He opened the packages and took the samples to
NBI. All the NBI agents did was to observe and look in plain sight. This
did not convert it to a search as contemplated by the constitution.

2. Yes, since the search was valid, the evidence from therein is admissible
evidence.

Art.III [2], on the admissibility of evidence in violation of the right

against unreasonable searches and seizures, likewise applies only to the
government and its agencies and not to private persons.

(U.S. cases cited: Burdeau v. McDowell (256 us 465 [1921], state v.

Bryan (457 p 2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]), Barnes v.
us (373 F 2d 517 [1967]), Chadwick v. state (329 sw 2d 135).

VALID WARRANTLESS SEARCH AND SEIZURE:

1. Search made incidental to a valid arrest

a. Moreno vs. Ago Chi, 12 Phil. 439

b. PEOPLE VS. ANG CHUN KIT, 251 SCRA 660
c. PEOPLE VS. LUA, 256 SCRA 539
d. PEOPLE VS. Figueroa, 248 SCRA 679
e. NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest
must be done at the place where the accused is arrested. As such, if accused
was arrested while inside a jeepney, there is no valid search incidental to a valid
arrest if she will be brought to her residence and thereafter search the said
place)
 86
f. ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street
during a buy-bust operation, the search of his house nearby is not a valid search
incidental to a valid arrest)

PEOPLE VS. GO, 354 SCRA 338

Where the gun tucked in a person’s waist is plainly visible to the

police, no search warrant is necessary and in the absence of any license
for said firearm, he may be arrested at once as he is in effect committing a
crime in the presence of the police officers. No warrant is necessary in
such a situation, it being one of the recognized exceptions under the
Rules.

As a consequence of the accused’s valid warrantless arrest inside the

nightclub, he may be lawfully searched for dangerous weapons or
anything which may be used as proof of the commission of an offense,
without a search warrant in accordance with Section 12, Rule 126. This is
a valid search incidental to a lawful arrest.

In fact, the subsequent discovery in his car which was parked in a

distant place from where the illegal possession of firearm was committed
[after he requested that he will bring his car to the Police Station after his
warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE
SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As
such, the items do not fall under the exclusionary rule and the unlicensed
firearms, drug paraphernalia and the shabu, can be used as evidence
against the accused.

2. Search of moving vehicles

a. Carrol vs. US, 267 US 132

b. PEOPLE VS. LO HO WING, et al.
(G. R. No. 88017) January 21, 1991
c. MUSTANG LUMBER VS. CA, 257 SCRA 430
d. PEOPLE VS. CFI, 101 SCRA 86
e. PEOPLE VS. MALMSTEDT198 SCRA 401

f. PEOPLE VS. LO HO WING, 193 SCRA 122

FACTS:
-----------

In July 1987, the Special Operations Group of the CIS received a tip
from one of its informers about an organized group engaged in
importation of illegal drugs and smuggling of contraband items. To
infiltrate the crime syndicate, they recruited confidential men and "deep
penetration agents" under OPLAN SHARON 887. One such agent was
 87
Reynaldo Tia (the dicharged/accused). As an agent, he submitted regular
reports of undercover activities of suspected syndicates. CAPTAIN
PALMERA, head of oplan sharon 887, in turned informed the Dan
gerous Drugs Board of Tia's activities.

Tia was introduced to his co-accused Lim Cheng Huat by another

agent named George. Lim wanted a male travelling companion for his
business trips abroad. Tia offered his services and was hired by Lim.
Later, Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho
Wing), the later turning out to be Tia's intended companion.

Appellant Lo Ho Wing and Tia left for Hongkong on October 4,

1987. Tia telephoned Capt. Palmera that they would return to the
Philippines on October 6. From Hongkong, the two proceeded to
Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six
(6) cans of tea.Tia saw these 6 bags when they were opened for
examination. That evening, they went to Lo Ho Wing's room and he saw
two other men with him. One was fixing the tea bags, while the other was
burning a substance on a piece of aluminum foil using a lighter. Appellant
Lo Ho Wing joined the second man and sniffed the smoke emitted by the
burning substance. When Tia asked Lo Ho Wing what cargo they would
bring to Manila, the latter replied that they would be bringing Chinese
drugs.

The next day en route to Manila, customs examiners inspected the

bags containing the tin cans of tea. Since the bags were not closely
examined, appellant Lo Ho Wing and Tia were cleared. In Manila, They
were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a
taxi from the airport and loaded their luggage in the taxi's compartment.
Lim Cheng Huat followed them in another taxi.

Meamwhile, a team composed by Capt. Palmera positioned

themselves in strategic areas around the airport. The CIS men who first
saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS car
overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to
stop his vehicle. The CIS team asked the taxi driver to open the baggage
compartment. The CIS team asked permission to search their luggage.

A tin can of tea was taken out of the compartment. Sgt. Cayabyab of
the CIS pried the lid open and pressed it in the middle to pull out the
contents. Crystalline white powder resmbling crushed alum came out.
Suspecting the crystalline powder to be a dangerous drug, he had the three
travelling bags opened for inspection. All the bags threshed out a total of
six tin cans. Tia and appellant were taken to the CIS headquarters for
questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped in
attempt to escape. However, they were later captured.
 88
Samples from the bag tested positive for metamphetamine. The three
suspects were indicted for violating Art. III, sec.15 of the Dangerous Drug
Act. Appellant Lo Ho Wing and Lim Cheng Huat were sentenced to suffer
life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia was
discharged as a state witness. The trial court gave full credence to the
testimonies of government agents since the presumption of regularity in
the performance of official duties were in their favor.

ISSUES:
----------
1. Was the warrantless search valid?

2. Are the effects taken admissible as evidence?

HELD:
-----

1. This is a case of search on a moving vehicle which is one of the

well-known exceptions to the valid warrantless search and seizure. To
stilol get a search warrant from a judge would allow the accused go scot-
free.

2. Since the search and seizure are valid, the evidence obtained is
admissible as evidence in any proceeding.

3. Seizure of goods concealed to avoid duties/taxes (Valid)

a. Papa vs. Mago, 22 SCRA 857

b. Pacis vs. Pamaran, 56 SCRA 16
c. HIZON VS. CA, 265 SCRA 517
d. PEOPLE VS. QUE, 265 SCRA 721

4. Seize of evidence in plain view

a. Harris vs. US, 390 US 234

b. PEOPLE VS. DAMASO, 212 SCRA 547
c. PEOPLE VS. VELOSO, 252 SCRA 135
d. PEOPLE VS. LESANGIN, 252 SCRA 213

5. When there is waiver of right or gives his consent;

a. De Garcia vs. Locsin, 65 Phil. 689
b. Lopez vs. Commissioner, 65 SCRA 336
c. PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a
warrantless search, the waiver or consent should be given by the person
affected, not just anybody. Example: The landlady could not give a valid
consent to the search of a room occupied by a tenant. Said tenant himself
should give the consent in order to be valid. The doctrine in Lopez vs.
 89
Commissioner to the effect that it could be given by any occupant of a hotel
room being rented by the respondent is deemed abandoned)
d. VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed
the policemen to enter his house because they are searching for rebel soldiers
but when inside the house, they instead seized an unlicensed firearm, there is no
consent to a warrantless search)

6. STOP AND FRISK.

a. People vs. Mengote, June, 1992
b. PEOPLE VS. POSADAS, 188 SCRA 288
c. MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several
suspicious looking men at dawn who ran when they went near them. As the
policemen ran after them, an unlicensed firearm was confiscated. The search is
valid)
d. MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to
validate warrantless arrest)

6. EDDIE GUAZON, ET AL. VS. MAJ. GEN.

RENATO DE VILLA, ET AL., GR NO. 80508,
January 30, 1990

Warrantless searches;
"zonings" and "saturation drives"
Section 17, Art. VII of the Constitution

Gutierrez, Jr., J.

Facts:

This is a petition for Prohibition with preliminary injunction to prohibit

military and police officers from conducting "Areal target zonings" or
"saturation drive" in Metro Manila particularly in places where they
suspect that the subversives are hiding. The 41 petitioners claim that the
saturation drives conducted by the military is in violation of their human
rights because with no specific target house in mind, in the dead of the
night or early morning hours, police and military officers without any
search warrant cordon an area of more than one residence and sometimes
the whole barangay. Most of them are in civilian clothes and w/o
nameplates or identification cards; that the raiders rudely rouse residents
from their sleep by banging on the walls and windows of their homes,
shouting, kicking their doors open (destroying some) and ordering the
residents to come out; the residents are herded like cows at the point of
high powered guns, ordered to strip down to their briefs and examined for
tattoo marks; that while examination of the bodies of the men are being
conducted, the other military men conduct search and seizures to each and
every house without civilian witnesses from the neighbors; some victims
 90
complained that their money and other valuables were lost as a result of
these illegal operations.
The respondents claim that they have legal authority to conduct
saturation drives under Art. VII, Sec. 17 of the Constitution which
provides:

The respondents would want to justify said military operation on the

following constitutional provisions:

The President shall be the Commander-in-Chief of all the armed forces

of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion x x x
xxxx

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

Held:

There can be no question that under ordinary circumstances, the police

action of the nature described by the petitioners would be illegal and
blatantly violative of the Bill of Rights. If the military wants to flush out
subversive and criminal elements, the same must be consistent with the
constitutional and statutory rights of the people. However, nowhere in the
Constitution can we see a provision which prohibits the Chief Executive
from ordering the military to stop unabated criminality, rising lawlessness
and alarming communist activities. However, all police actions are
governed by the limitations of the Bill of Rights. The government cannot
adopt the same reprehensible methods of authoritarian systems both of the
right and of the left. This is so because Art. III, Section 3 of the
Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA
687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must
be pointed out that police actions should not be characterized by methods
that offend one's sense of justice (Rochin vs. California, 342 US 165).

The Court believes it highly probable that some violations were

actually committed. But the remedy is not to stop all police actions,
including the essential and legitimate ones. A show of force is sometimes
necessary as long as the rights of people are protected and not violated.
However, the remedy of the petitioners is not an original action for
prohibition since not one victim complains and not one violator is
properly charged. It is basically for the executive department and the trial
courts. The problem is appropriate for the Commission of Human Rights.

The petition was therefore remanded to the Regional Trial Courts of

Manila, Malabon and Pasay City where the petitioners may present
 91
evidence supporting their allegations so that the erring parties may be
pinpointed and prosecuted. In the meantime, the acts violative of human
rights alleged by the petitioners as committed during the police actions are
ENJOINED until such time as permanent rules to govern such actions are
promulgated.

********************

Cruz, Padilla and Sarmiento, JJ. , Dissenting

The ruling of the majority that the petitioners are not proper parties is a
specious pretext for inaction. We have held that technical objections may
be brushed aside where there are constitutional questions that must be met
(RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS.
COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479;
EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27
SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS.
ALBA,148 SCRA 208). Lozada was in fact an aberration.

Where liberty is involved, every person is a proper party even if he

may not be directly injured. Each of us has a duty to protect liberty and
that alone makes him a proper party. It is not only the owner of a burning
house who has the right to call the firemen.

Section 2, Art. III of the constitution is very clear: Unreasonable

searches and seizures of whatever nature and for whatever purpose is
prohibited.

Saturation drives are NOT AMONG THE ACCEPTED INSTANCES

WHEN A SEARCH OR AN ARREST MAY BE MADE WITHOUT A
WARRANT. THEY COME UNDER THE CONCEPT OF THE
FISHING EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE
X X X I submit that this court should instead categorically and
emphatically that these saturation drives are violative of human rights and
individual liberty and should be stopped immediately. While they may be
allowed in the actual theater of military operations against the insurgents,
the Court should also make it clear that Metro Manila is not such a
battleground.

7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF

ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA.
MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL
RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA
may be arrested without warrant while sleeping or being treated in a hospital
because his being a communist rebel is a continuing crime)

h. If the judge finds that there's probable cause, must he issue a warrant of arrest
as a matter of course? See the distinctions.
 92

Read:

1. SAMULDE VS. SALVANI, SEPTEMBER 26, 1988 (No because a warrant

is issued in order to have jurisdiction of the court over the person of an accused
and to assure the court of his presence whenever his case is called in court. As
such, if the court believes that the presence of the accused could be had even
without a warrant of arrest, then he may not issue said warrant. Note: This case
involves a minor offense)
2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is a serious
one like that obtaining in this case for murder, the Judge must issue a warrant
of arrest after determining the existence of probable cause)

i. Searching questions

Read:

DR. NEMESIO PRUDENTE VS. THE HON.

EXECUTIVE JUDGE ABELARDO M. DAYRIT,
RTC 33, Manila & People of the Philippines, GR No.
82870, December 14, 1989 (En Banc)

Search and seizure; requirements/requisites of a valid search warrant; searching

questions

Padilla, J.

This is a petition to annul and set aside the Order of respondent Judge
DENYING the motion of the petitioner to quash Search Warrant No. 87-
14 as well as its Order denying the petitioner's Motion for
Reconsideration.

Facts:

1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the

Intelligence Special Action Division (ISAD) of the Western Police District
(WPD) filed with the Regional Trial Court of Manila, Branch 33, presided
by the respondent Judge, an application for the issuance of a Search
Warrant for violation of PD 1866 against the petitioner;

2. In his application for search warrant, P/Major Dimagmaliw alleged

that:

"1. That he has been informed and has good and sufficient reasons to
believe that NEMESIO PRUDENTE who may be found at the
Polytechnic University of the Philippines x x x has in his control or
 93
possession firearms, explosives, hand grenades and ammunition intended
to be used as the means of committing an offense x x x;

"2. That the undersigned has verified the report and found it to be a fact x
x x ".

In support of said application, P/Lt. Florencio Angeles executed a

"Deposition of Witness dated October 31, 1987 .

3. On November 1, 1987, a Sunday and All Saints Day, the search warrant
was enforced by some 200 WPD operatives led by Col. Edgar Dula Torre
and Major Maganto;

4. On November 2, 1987, Ricardo Abando, a member of the searching

team executed an affidavit alleging that he found in the drawer of a
cabinet inside the wash room of Dr. Prudente's office a bulging brown
envelope with three live fragmentation hand grenades separately with old
newspapers;

5. On November 6, 1987, the petitioner moved to quash the search

warrant on the grounds that:

a. the complainant's lone witness, Lt. Angeles had no personal knowledge

of the facts which formed the basis for the issuance of the search warrant;

b. the examination of said witness was not in the form of searching

questions and answers;

c. the search warrant was a general warrant, for the reason that it did not
particularly describe the place to be searched and that it failed to charge
one specific offense; and

d. the warrant was issued in violation of Circular No. 19 of the Supreme

Court in that the complainant failed to allege that the issuance of the
search warrant on a Saturday was urgent.

6. On March 9, 1986, the respondent judge denied the motion to quash

and on April 20, 1988, the same judge denied petitioner's motion for
reconsideration. Hence this petition.

Issue:

Was the Search Warrant issued by the respondent judge valid? Was
there probable cause?

Held:
 94
a. For a valid search warrant to issue, there must be probable cause,
which is to be determined by the judge, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized. The probable cause must be in connection with one specific
offense and the judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and
under oath, the complainant and the witnesses he may produce, on facts
personally known to them and attach to the record their sworn statements
together with any affidavits submitted.

The "probable cause" for a valid search warrant, has been defined "as
such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and that the
objects sought in connection with the offense are in the place sought to be
searched". (Quintero vs. NBI, June 23, 1988). This probable cause must
be shown to be within the personal knowledge of the complainant or the
witnesses he may produce and not based on mere hearsay. (P. VS. SY
JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS.
ADDISON, 28 PHIL. 566).

In his affidavit, Major Dimagmaliw declared that "he has been

informed" that Nemesio Prudente "has in his control and possession" the
firearms and explosivees described therein, and that he "has verified the
report and found it to be a fact." On the other hand, Lt. Angeles declared
that as a result of continuous surveillance for several days, they "gathered
information’s from verified sources" that the holders of said firearms and
explosives are not licensed t possess them. It is clear from the foregoing
that the applicant and his witness HAD NO PERSONAL KNOWLEDGE
OF THE FACTS AND CIRCUMSTANCES which became the basis for
issuing the questioned search warrant, but acquired knowledge thereof
only through information from other sources or persons.

Despite the fact that Major Dimagmaliw stated in his affidavit that "he
verified the information he had earlier received and found it to be a fact,
YET THERE IS NOTHING IN THE RECORD TO SHOW OR
INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE
EARLIER INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS
CONCLUSION. He might have clarified this point if there had been
searching questions and answers, but there were none. In fact, the records
yield no questions and answers, whether searching or not, vis-a-vis the
said applicant.

In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test
must be complied with in an application for search warrant or in a
supporting deposition based on personal knowledge or not-
 95
"The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it was drawn in a manner that
perjury could be charged thereon and the affiant be held liable for damage
caused. The oath required must refer to the truth of the facts within the
personal knowledge of the applicant of a search warrant and/or his
witnesses, not of the facts merely reported by a person whom one
considers to be reliable."

Tested by the above standards, the allegation of the witness, Lt.

Angeles, do not come up to the level of facts based on his personal
knowledge so much so that he cannot be held liable for perjury for such
allegations in causing the issuance of the questioned search warrant.

Besides, respondent judge did not take the deposition of the applicant
as required by the Rules of Court. As held in Roan vs. Gonzales, 145
SCRA 694, "mere affidavits of the complainant and his witnesses are thus
insufficient. The examining judge has to take the depositions in writing of
the complainant and the witnesses he may produce and attach them to the
record."

b. There was also no searching questions asked by the respondent judge

because as shown by the record, his questions were too brief and short and
did not examine the complainant and his witnesses in the form of
searching questions and answers. On the contrary, the questions asked
were leading as they called for a simple "yes" or "no" answer. As held in
Quintero vs. NBI, June 23, 1988, "the questions propounded are not
sufficiently searching to establish probable cause. Asking of leading
questions to the deponent in an application for search warrant and
conducting of examination in a general manner would not satisfy the
requirements for the issuance of a valid search warrant."

The Court avails of this decision to reiterate the strict requirements for
determination of probable cause in the valid issuance of a search warrant
as enunciated in earlier cases. True, this requirements are stringent but the
purpose is to assure that the constitutional right of the individual against
unreasonable search and seizure shall remain both meaningful and
effective.

c. The rule is, that a description of a place to be searched is sufficient if

the officer with the warrant can with reasonable effort ascertain and
identify the place intended (P VS. VELOSO, 48 PHIL. 180). In the case at
bar, the warrant described the place to be searched as the premises of the
PUP, more particularly the offices of the Department of Science and
Tactics as well as the Office of the President, Nemesio Prudente.

There is also no violation of the "one specific offense" requirement

considering that the application for a search warrant explicitly described
 96
the offense: illegal possession of firearms and ammunitions under PD
1866.

d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for

a guideline, departure from which would not necessarily affect the validity
of the search warrant provided the constitutional requirements are
complied with.

a. HUBERT WEBB VS. DE LEON, 247 SCRA 650

Read also:

1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his

knowledge from an informant, the same is not valid)
2. Luna vs. Plaza, 26 SCRA 313
3. De Mulata vs. Irizari, 62 SCRA 210
4. Marinas vs. Siochi, 104 SCRA 423
5. Roan vs. Gonzales, 145 687
6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and
witnesses should be attached to the record of the case)
7. Corro vs. Lising, 137 SCRA 541
8. Nolasco vs Pano, 147 SCRA 509
9. Burgos vs. Chief of Staff, 133 SCRA 800
10. P. vs. Burgos, September 14,1986
11. P. vs. Aminnudin Y Ahni, July 6,1988
12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the
affidavits of witnesses are mere generalities, mere conclusions of law, and not
positive statements of particular acts, the warrant is not valid)
13. Aberca vs. Ver, April 15,1988
2. Panganiban vs. Cesar, 159 SCRA 599
3. PENDON VS. CA, November 16, 1990. (When the questions asked to the
applicant for a search warrant was pre-typed, the same is not valid since there
could have been no searching questions)

j. Warrantless searches and seizures--when valid

or not.

Read:

1. RICARDO VALMONTE VS. GEN RENATO DE

VILLA, GR No. 83988, September 29, 1989

Warrantless searches and seizures;

validity of checkpoints

Padilla, J.
 97
Facts:

1. On January 20, 1987, the National Capital Region District Command

(NCRDC) was activated with the mission of conducting security
operations within its area of responsibility for the purpose of maintaining
peace and order. As part of its duty to maintain peace and order, the
NCRDC installed checkpoints in various parts of Valenzuela, Metro
Manila.

Petitioners claim that because of these checkpoints, the residents of

Valenzuela, MM are worried of being harassed and of their safety being
placed at the arbitrary, capricious and whimsical disposition of the
military authorities manning the checkpoints considering that their cars
and vehicles are being subjected to regular searches and check-ups,
especially at night or dawn, without the benefit of a search warrant and/or
court order.

2. On July 9, 1988 at dawn, the apprehensions of the residents of

Valenzuela increased because Benjamin Parpon, the supply officer of the
Municipality of Valenzuela was gunned down in cold blood by the
military men manning the checkpoints for ignoring or refusing to submit
himself to the checkpoint and for continuing to speed off inspite of several
warning shots fired in the air.

Issue:

Whether or not the existence of said checkpoints as well as the periodic

searches and seizures made by the military authorities without search
warrant valid?

Held:

Petitioners' concern for their safety and apprehension at being harassed

by the military manning the checkpoints are not sufficient grounds to
declare the checkpoints as per se illegal.

Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined
by any fixed formula but is to be resolved according to the facts of each
case.

Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on a public fair grounds (People vs. Case,
190 MW 289), or simply looks into a vehicle (State vs. Gaina, 97 SE 62),
or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these
do not constitute unreasonable search.
 98
The setting up of checkpoints in Valenzuela, Metro Manila may be
considered as security measure to effectively maintain peace and order
and to thwart plots to destabilize the government. In this connection, the
Court may take judicial notice of the shift to urban centers and their
suburbs of the insurgency movement, so clearly reflected in the increased
killings in cities of police and military men by NPA's "sparrow units," not
to mention the abundance of unlicensed firearms.

BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT

ITS EXISTENCE AND PROMOTE PUBLIC WELFARE AND AN
INDIVIDUAL'S RIGHT AGAINST A WARRANTLESS SEARCH
WHICH IS HOWEVER REASONABLY CONDUCTED, THE FORMER
SHALL PREVAIL.

True, the manning of these checkpoints by the military is susceptible of

abuse by the men in uniform, in the same manner that all governmental
power is susceptible to abuse. BUT , AT THE COST OF OCCASIONAL
INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE
CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL
TIMES ARE PART OF THE PRICE WE PAY FOR AN ORDERLY
SOCIETY AND PEACEFUL COMMUNITY.

Finally, it must be emphasized that on July 17, 1988, the military

checkpoints in Metro Manila were temporarily lifted and a review and
refinement of the rules in the conduct of the police and military manning
the checkpoints upon order of the NCRDC Chief.

Cruz and Sarmiento, JJ., dissenting:

The bland declaration by the majority that individual rights must yield
to the demands of national security ignores the fact that the Bill of Rights
was intended precisely to limit the authority of the State even if asserted
on the ground of national security.

RESOLUTION ON THE MOTION FOR RECONSIDERATION, JUNE

15, 1990

Very Important:

The Supreme Court in its Resolution of the Motion for Reconsideration

dated 15 June, 1990, held that military and police checkpoints are not
illegal as these measures to protect the government and safeguards the
lives of the people. The checkpoints are legal as where the survival of the
organized government is on the balance, or where the lives and safety of
the people are in grave peril. However, the Supreme Court held further
that the military officers manning the checkpoints may conduct VISUAL
SEARCH ONLY, NOT BODILY SEARCH.
 99
Read also the RESOLUTION ON THE MOTION FOR
RECONSIDERATION dated JUNE 15, 1990, 185 SCRA 665

Read also:

1-a. Rizal Alih vs. Gen. Castro, June 23,1987

1-b. P s. Cendana, October 17, 1990
1-c. P. vs. Castiller, August 6, 1990
1-d. P. vs. Olaes, July 30, 1990
2. Papa vs. Mago, 22 SCRA 857
3. Roldan vs. Arca, 65 SCRA 336
4. P. vs. CFI, 101 SCRA 86
5. Pacis vs. Pamaran, 56 SCRA 16
6. Lopez vs. Commisioner, 65 SCRA 336
7. P vs. Cruz, 165 SCRA 135
8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA 152
9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search if a
NARCOM officer arrests the person who owns a bag which contains marijuana
which he found out when he smelled the same. Here , there is a probable cause
since he was personal knowledge due to his expertise on drugs)
11. PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was
given by the police the amount of P100.00, he went to buy marijuana from the
accused then return to the police headquarters with said article. Thereafter, the
policemen went to arrest the accused without warrant. The arrest is not valid
since it does not fall under Section 5 Rule 113)
Likewise, after securing a search warrant authorizing the seizure of shabu
and its paraphernalia and instead, an unlicensed firearm was seized instead, said
gun is inadmissible in evidence.

k. May a non-judicial officer issue a warrant of arrest? (NO)

Read:

1. Harvey vs. Miriam Defensor-Santiago, June 26,1988

2. Moreno vs. Vivo, 20 SCRA 562
3. Lim vs. Ponce de Leon, 66 SCRA 299
4. HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510,
March 14, 1990 (En banc)
5. Presidential Anti_Dollar Salting Task Force vs. CA, March 16, 1989

l. Properties subject to seizure

Read:

1 1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended

2. ESPANO VS. CA, 288 SCRA 558

m. Warrantless searches and arrests

 100

Read:

1. P. vs. Bati, August 27, 1990

1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9,
1989
1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 & 137 SCRA 647
1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin,
July 6, 1988, supra)
1-d. Posadas vs. CA, Aug. 2, 1990
1-e. P. vs. De la Cruz
1-f. P. vs. ortiz, Dec. 3, 1990
1-g. Rolito Go vs. CA, Feb. 11, 1992
1-h. People vs. Mati, January 18, 1991
2. Morales vs. Ponce Enrile, 121 SCRA 538
2-a. P vs. Burgos, 144 SCRA 1
2-b. People vs. de la Cruz, 184 SCRA 416
2-c. Gatchalian vs. Board, May 31, 1991
2-d. People vs. Sucro, March 18, 1991
2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255
2-f. PEOPLE VS. CUISON, 256 SCRA 325
2-g. PEOPLE VS. DAMASO, 212 SCRA 547
2-h. OPOSADAS VS. CA, 258 SCRA 188
2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)
3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as
amended

n. Effect posting bail or entering a plea during the arraignment, if the arrest was
illegal. (The alleged illegality of the arrest is deemed waived upon posting of
the bond by the accused)

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman arrested the accused-appellant on the basis solely of

what Reynaldo Castro had told him and not because he saw the accused-
appellant commit the crime charged against him. Indeed, the prosecution
admitted that there was no warrant of arrest issued against accused-
appellant when the latter was taken into custody. Considering that the
accused-appellant was not committing a crime at the time he was arrested
nor did the arresting officer have any personal knowledge of facts
indicating that accused-appellant committed a crime, his arrest without a
warrant cannot be justified.
 101
However, by entering a plea of not guilty during the arraignment,
the accused-appellant waived his right to raise the issue of illegality of his
arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF
ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES
JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE
MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE
OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST
WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT
TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED.

Read:

1. Callanta vs. Villanueva, 77 SCRA 377

2. PEOPLE VS. NAZARENO, 260 SCRA 256
3. FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222
4. PEOPLE VS. NAZARENO, 260 SCRA 256
5. PEOPLE VS. LAPURA, 255 SCRA 85
6. PEOPLE VS. SILAN, 254 SCRA 491

o . Penalty for illegal arrest

Read:

Palon vs. NAPOLCOM, May 28, 1989

p. Judicial pronouncements on illegally seized evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?

Read:

Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990

r. Search warrant for pirated video tapes

1. Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated
tape should be presented before the judge in order to convince him of the
existence of probable cause)
2. COLUMBIA PICTURES VS. CA, 261 SCRA 144

LATEST CASES ON SEARCH AND SEIZURES

UY VS. BIR, 344 SCRA 36

 102
The following are the requisites of a valid search warrant:

1. The warrant must be issued upon probable cause;

2. The probable cause must be determined by the judge himself and not by
applicant or any other person;
3. In determining probable cause, the judge must examine under oath and
affirmation the complainant and such witnesses as the latter may produce;
and
4. The warrant issued must particularly describe the place to be searched and
the person or things to be seized.

A description of the place to be searched is sufficient if the officer with

the warrant can, with reasonable effort, ascertain and identify the place
intended and distinguish it from other places in the community. Search
warrants are not issued on loose, vague or doubtful basis of fact, nor on mere
suspicion or belief. In this case, most of the items listed in the warrants fail
to meet the test of particularity, especially since the witness had furnished the
judge photocopies of the documents sought to be seized. THE SEARCH
WARRANT IS SEPARABLE, AND THOSE ITEMS NOT
PARTICULARLY DESCRIBED MAY BE CUT OFF WITHOUT
DESTROYING THE WHOLE WARRANT.

PEOPLE VS. VALDEZ, 341 SCRA 25

The protection against unreasonable search and seizure covers both

innocent and guilty alike against any form of highhandedness of law enforces.

The “ plain view” doctrine, which may justify a search without warrant,
APPLIES ONLY WHERE THE POLICE OFFICER IS NOT
SEARCHING FOR EVIDENCE AGAINST THE ACCUSED, BUT
INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT.

Just because the marijuana plants were found in an unfenced lot does nor
prevent the appellant from invoking the protection afforded by the Constitution.
The right against unreasonable search and seizure is the immunity of one ’s
person, which includes his residence, papers and other possessions. For a
person to be immune against unreasonable searches and seizures, he need not
be in his home or office, within a fenced yard or private place.

PEOPLE VS. BAULA, 344 SCRA 663

In case of consented searches or waiver of the constitutional guarantee

against obtrusive searches, it is fundamental that to constitute waiver, IT
MUST APPEAR THAT THE RIGHT EXISTS; THE PERSONS
INVOLVED HAD KNOWLEDGE, EITHER ACTUAL OR
CONSTRUCTIVE, of the existence of such right. The third condition did not
 103
exist in the instant case. Neither was the search incidental to a valid warrantless
arrest. (PEOPLE VS. FIFUEROA, July 6, 2000) An alleged consent to a
warrantless search and seizure cannot be based merely on the presumption of
regularity in the performance of official duty. THE PRESUMPTION BY
ITSELF, CANNOT PREVAIL AGAINST THE CONSTITUTIONALLY
PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE
PURSUIT OF CRIMINALS CANNOT ENNOBLE THE USE OF
ARBITRARY METHODS THAT THE CONSTITUTION ITSELF ABHORS.

CHAPTER IV
THE RIGHT TO PRIVACY

Section 3. The privacy of communication and

correspondence shall be inviolable except
upon lawful order of the court, or when public
safety or order requires otherwise as
prescribed by law.

Any evidence obtained in violation of

this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
Read:

Read:

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,

Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)

Please observe the procedure in obtaining the “ The Warrant [or Order] of
Surveillance” , not found in the 1987 Philippine Constitution.

SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND

RECORDING OF COMMUNICATIONS OF SUSPECTS OR
CHARGED OF TERRORISM

Section 7. Surveillance of suspects and interception and recording of

communications. The provisions of RA 4200 (Anti-Wiretapping Law) to
the contrary notwithstanding, a police or law enforcement official and the
members of his team may, upon a written order of the Court of Appeals,
listen to, intercept and record, with the use of any mode, form or kind or
type of electronic or other surveillance equipment or intercepting and
tracking devices, or with the use of any other suitable ways or means for
that purpose, any communication, message, conversation, discussion, or
spoken or written words between members of a judicially declared and
 104
outlawed terrorist organization, association, or group of persons or of any
person charged with or suspected of the crime of terrorism or conspiracy
to commit terrorism.

Provided, That surveillance, interception and recording of

communications between lawyers and clients, doctors and patients,
journalists and their sources and confidential business correspondence
shall not be authorized.

Section 8. Formal Application for Judicial Authorization.- The

written order of the authorizing division of the Court of Appeals to track
down, tap, listen, intercept, and record communications, messages,
conversations, discussions, or spoken or written words of any person
suspected of the crime of terrorism or the crime of conspiracy to commit
terrorism, shall only be granted by the authorizing division of the Court of
Appeals UPON AN EX-PARTE written application of a police or law
enforcement official who has been duly authorized in writing by the Anti-
Terrorism Council created in Section 53 of this Act to file such ex-parte
application, and upon examination under oath and affirmation of the
applicant and the witnesses who may produce to establish:

 That there is probable cause to believe based on personal knowledge of

facts and circumstances that the said crime of terrorism or conspiracy to
commit terrorism has been committed, or is being committed, or is about
to be committed;
 That there is probable cause to believe based on personal knowledge of
facts and circumstances that evidence which is essential to the conviction
of any charged or suspected person for, or to the solution or prevention of
any such crimes, will be obtained; and
 That there is no other effective means readily available for acquiring such
evidence.

Sec. 9. Classification and Contents of the Order of the Court. The

written order granted by the authorizing division of the Court of Appeals
as well as its order, if any, to extend or renew the same, the original
application of the applicant, including his application to extend or renew,
if any, and the written authorizations of the Anti-Terrorism Council shall
be deemed and are hereby declared as classified information: Provided,
That the person being surveilled or whose communications, letters,
papers, messages, conversations, discussions, spoken or written words and
effects have been monitored, listened to, bugged or recorded by law
enforcement authorities has the right to be informed of the acts done by
the law enforcement authorities in the premises or to challenge, if he or
she intends to do so, the legality of the interference before the Court of
Appeals which issued said written order. The written order of the
authorizing division of the court of Appeals shall specify the following:
 105
 The identity, such as name and address, if known, of the charged of
suspected persons whose communications, messages, conversations,
discussions, or spoken or written words are to be tracked down, tapped,
listened to, intercepted or recorded and, in case of radio, electronic, or
telephone (whether wireless or otherwise) communications, messages,
conversations, discussions, or spoken or written words, the electronic
transmission systems or the telephone numbers to be tracked down,
tapped, listened to, intercepted, and recorded and their locations if the
person suspected of the crime of terrorism or conspiracy to commit
terrorism is not fully known, such person shall be subject to continuous
surveillance provided there is reasonable ground to do so;
 The identity (name and address, and the police or law enforcement
organization) of the members of his team judicially authorized to track
down, tap, listen to, intercept, and record the communications, messages,
conversations, discussions, or spoken or written words;
 The offense or offenses committed, or being committed, or sought to be
prevented; and
 The length of time which the authorization shall be used or carried out.

Section. 10. Effective Period of Judicial Authorization. Any

authorization granted by the authorizing division of the court of Appeals…
shall only be effective for the length of time specified in the written order
of the authorizing division of the Court of Appeals, which shall not
exceed 30 days from the date of receipt of the written order of the
authorizing division of the court of Appeals by the applicant police or law
enforcement official.

The CA may extend or renew the said authorization for another non-
extendible period, which shall not exceed 30 days from the expiration of
the original period…The ex-parte application for renewal has been duly
authorized by the Anti-terrorism Council in writing.

If no case is filed within the 30-day period, the applicant police or

law enforcement official shall immediately notify the person subject of
the surveillance, interception, and recording of the termination of the said
surveillance, interception and recording. [Penalty to be imposed on the
police official who fails to inform the person subject of surveillance of the
termination of the surveillance, monitoring, interception and recording
shall be penalized to 10 years and 1 day to 12 years.

Section 15. Evidentiary Value of Deposited Materials. Any listened

to, intercepted, and recorded communications, messages, conversations…
WHICH HAVE BEEN SECURED IN VIOLATION OF THE
PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY
NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST
ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE,
 106
OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING,
OR HEARING.

JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS,

ACCOUNTS, AND RECORDS OF SUSPECTED OR CHARGED
TERRORISTS

Section 27. judicial authorization required to examine bank deposits,

accounts and records.

The justices of CA designated as special court to handle anti-

terrorism cases after satisfying themselves of the existence of probable
cause in a hearing called for that purpose that:

 A person charged with or suspected of the crime of terrorism or

conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of
persons;
 Of a member of such judicially declared and outlawed organization,
association or group of persons, may authorize in writing any police or
law enforcement officer and the members of his team duly authorized in
writing by the anti-terrorism council to:
1. examine or cause the examination of, the deposits, placements, trust
accounts, assets, and records in a bank or financial institution; and
2. gather or cause the gathering of any relevant information about such
deposits, placements, trust accounts, assets, and records from a bank or
financial institution. The bank or financial institution shall not refuse to
allow such examination or to provide the desired information, when so
ordered by and served with the written order of the Court of Appeals.

Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank

deposits, placements, trust accounts, assets and records:

 A person charged with or suspected of the crime of terrorism or

conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of
persons;
 Of a member of such judicially declared and outlawed organization,
association or group of persons, in a bank or financial institution-

-SHALL ONLY BE GRANTED BY THE AUTHORIZING

DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO
THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL
who has been duly authorized by the Anti-Terrorism Council to file such
ex-parte application and upon examination under oath or affirmation of
 107
the applicant and his witnesses he may produce to establish the facts that
will justify the need and urgency of examining and freezing the bank
deposits, placements, trust accounts, assets and records:

 Of A person charged with or suspected of the crime of terrorism or

conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of
persons;
 Of a member of such judicially declared and outlawed organization,
association or group of persons.

Section 35. Evidentiary value of deposited bank materials.- Any

information, data, excerpts, summaries, notes, memoranda, work sheets,
reports or documents acquired from the examination of the bank deposits,
placements, trust accounts, assets and records of:

 A person charged with or suspected of the crime of terrorism or

conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of
persons;
 Of a member of such judicially declared and outlawed organization,
association or group of persons,

-which have been secured in violation of the provisions of this Act,

shall absolutely not be admissible and usable as evidence against anybody
in any judicial, quasi-judicial, legislative or administrative investigation,
inquiry, proceeding or hearing.

1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419

2. ZULUETA VS. CA, February 10, 1996

The wife forcibly opened the drawers at the clinic of her doctor-husband
and took diaries, checks and greeting cards of his alleged paramours.
Thereafter, she used the same in their legal separation case. Said documents are
inadmissible in evidence. This is so because the intimacies of husband and wife
does not justify the breaking of cabinets to determine marital infidelity.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

On December 12, 1996, then President FIDEL V. RAMOS issued

Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.
 108

The AO seeks to have all Filipino citizens and foreign residents to

have a Population Reference Number (PRN) generated by the National
Statistics Office (NSO) through the use of BIOMETRICS
TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1. The establishment of the PRN without any law is an unconstitutional

usurpation of the legislative powers of the Congress of the Philippines;
2. The appropriation of public funds for the implementation of the said AO
is unconstitutional since Congress has the exclusive authority to
appropriate funds for such expenditure; and
3. The AO violates the citizen’s right to privacy protected by the Bill of
Rights of the Constitution.

Held:

1. The AO establishes a system of identification that is all-encompassing in

scope, affects the life and liberty of every Filipino citizens and foreign
residents and therefore, it is supposed to be a law passed by Congress that
implements it, not by an Administrative Order issued by the President.
Administrative Power, which is supposed to be exercised by the
President, is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the
President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. Prescinding from the foregoing
precepts, AO 308 involves a subject that is not appropriate to be covered
by an Administrative Order. An administrative order is an ordinance
issued by the President which relates to specific aspects in the
administrative operation of the government. It must be in harmony with
the law and should be for the sole purpose of implementing the law and
carrying out the legislative policy. The subject of AO 308 therefore is
beyond the power of the President to issue and it is a usurpation of
legislative power.

2. The AO likewise violates the right to privacy since its main purpose is to
provide a “common reference number to establish a linkage among
concerned agencies through the use of BIOMETRICS TECHNOLOGY.
Biometry is the science of the application of statistical methods to
biological facts; a mathematical analysis of a biological data. It is the
confirmation of an individual’s identity through a fingerprint, retinal scan,
hand geometry or facial features. Through the PRN, the government
offices has the chance of building a huge and formidable information base
through the electronic linkage of the files of every citizen. The data,
however, may be gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal information constitutes
 109
a covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms
how these informations gathered shall be handled. It does not provide who
shall control and access the data and under what circumstances and for
what purpose. These factors are essential to safeguard the privacy and
guaranty the integrity of the information. The computer linkage gives
other government agencies access to the information. YET, THERE ARE
NO CONTROLS TO GUARD AGAINST LEAKAGE OF
INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL
PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS
BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR
PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER
PURPOSE, OR WORSE, MANIPULATE THE DATA STORED
WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that

personal information gathered about our people will be used only for
specified purposes thereby violating the citizen’s right to privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO

ERMITA, ET AL., April 19, 2006 & June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA,

ET AL., April 19, 2006 & June 20, 2006

Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No.

420 that mandates the Adoption of a Unified, Multi-purpose Identification
System by all Government Agencies in the Executive Department. This is
so despite the fact that the Supreme Court held in an En Banc decision in
1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES
Administrative Order No. 308[National computerized Identification
Reference System] issued by then President Fidel V. Ramos that the same
is unconstitutional because “a national ID card system requires legislation
because it creates a new national data collection and card issuance
system, where none existed before”. The Supreme Court likewise held
that EO 308 as unconstitutional for it violates the citizen’s right to privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation

No. 420 is unconstitutional on two (2) grounds:

a. usurpation of legislative powers; and

 110
b. it infringes on the citizen’s right to privacy

Held:

The said Executive Order No. 420 does not violate the citizen ’s right to
privacy since it does not require all the citizens to be issued a national ID
as what happened in AO 308. Only those dealing or employed with the
said government entities who are required to provide the required
information for the issuance of the said ID.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,

October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago

introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 89
[4]
“directing an inquiry in aid of legislation on the anomalous losses
incurred by the Philippines Overseas Telecommunications Corporation
(POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due
to the alleged improprieties in their operations by their respective Board
of Directors.”

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the

authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio
of the PCGG, one of the herein petitioners, inviting him to be one of the
resource persons in the public meeting jointly conducted by the
Committee on Government Corporations and Public Enterprises and
Committee on Public Services. The purpose of the public meeting was to
deliberate on Senate Res. No. 455.90[6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG

declined the invitation because of prior commitment. 91[7] At the same
time, they invoked Section 4(b) of E.O. No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General

Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82
EDSA, Mandaluyong City and brought him to the Senate premises where
he was detained.
89[4] Annex “E” of the Petition in G.R. No. 174318.
90[6] Annex “F” of the Petition in G.R. No. 174318.
91[7] Annex “G” of the Petition in G.R. No. 174318.
 111
Hence, Chairman Sabio filed with the Supreme Court a petition for
habeas corpus against the Senate Committee on Government
Corporations and Public Enterprises and Committee on Public Services,
their Chairmen, Senators Richard Gordon and Joker P. Arroyo and
Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their

right to privacy?

H E L D:

The claim of immunity is without merit.

Zones of privacy are recognized and protected in our laws. 92[46]

Within these zones, any form of intrusion is impermissible unless excused
by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that
the right to privacy is a “constitutional right” and “the right most valued
by civilized men,”93[47] but also from our adherence to the Universal
Declaration of Human Rights which mandates that, “no one shall be
subjected to arbitrary interference with his privacy ” and “everyone has
the right to the protection of the law against such interference or
attacks.”94[48]

Our Bill of Rights, enshrined in Article III of the Constitution,

provides at least two guarantees that explicitly create zones of privacy. It
highlights a person’s “right to be let alone” or the “right to determine
what, how much, to whom and when information about himself shall be
disclosed.”95[49] Section 2 guarantees “the right of the people to be
secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any
purpose.” Section 3 renders inviolable the “privacy of
communication and correspondence” and further cautions that “any
evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.”

92[46] Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.
93 [47]
See Morfe v. Mutuc No. L-20387, January 31, 1968, 22 SCRA 424.
94 [48]
Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the International Covenant on
Civil and Political Rights.
95 [49]
Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and Jurisprudence, 1990, at
221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).
 112
In evaluating a claim for violation of the right to privacy, a court
must determine whether a person has exhibited a reasonable expectation
of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.96[50] Applying this determination to
these cases, the important inquiries are: first, did the directors and
officers of Philcomsat Holdings Corporation exhibit a reasonable
expectation of privacy?; and second, did the government violate such
expectation?

The answers are in the negative. Petitioners were invited in the

Senate’s public hearing to deliberate on Senate Res. No. 455, particularly
“on the anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of
directors.” Obviously, the inquiry focus on petitioners’ acts committed
in the discharge of their duties as officers and directors of the said
corporations, particularly Philcomsat Holdings Corporation.
Consequently, they have no reasonable expectation of privacy over
matters involving their offices in a corporation where the government
has interest. Certainly, such matters are of public concern and over
which the people have the right to information.

This goes to show that the right to privacy is not absolute where
there is an overriding compelling state interest. In Morfe v. Mutuc,97[51]
the Court, in line with Whalen v. Roe,98[52] employed the rational basis
relationship test when it held that there was no infringement of the
individual’s right to privacy as the requirement to disclosure information
is for a valid purpose, i.e., to curtail and minimize the opportunities for
official corruption, maintain a standard of honesty in public service, and
promote morality in public administration.99[53] In Valmonte v. Belmonte,100
[54]
the Court remarked that as public figures, the Members of the former
Batasang Pambansa enjoy a more limited right to privacy as compared
to ordinary individuals, and their actions are subject to closer scrutiny.
Taking this into consideration, the Court ruled that the right of the people
to access information on matters of public concern prevails over the right
to privacy of financial transactions.

96 [50]
Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974). See Katz v. United states
(1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People v. Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P.
2d 1262; 8 Cal. 3d 623-624,105 Cal. Rptr. 521, 504 P. 2d 457. INSERT Herrera’s Handbook on Arrest, Search and Seizure.
97[51] Supra.
98 [52]
429 U.S. 589 (1977).
99[53] Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.
100 [54]
170 SCRA 256 (1989)
 113
Under the present circumstances, the alleged anomalies in the
PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
conspiratorial participation of the PCGG and its officials are compelling
reasons for the Senate to exact vital information from the directors and
officers of Philcomsat Holdings Corporations, as well as from Chairman
Sabio and his Commissioners to aid it in crafting the necessary legislation
to prevent corruption and formulate remedial measures and policy
determination regarding PCGG’s efficacy. There being no reasonable
expectation of privacy on the part of those directors and officers over the
subject covered by Senate Res. No. 455, it follows that their right to
privacy has not been violated by respondent Senate Committees.

Let it be stressed at this point that so long as the constitutional

rights of witnesses, like Chairman Sabio and his Commissioners, will be
respected by respondent Senate Committees, it their duty to cooperate
with them in their efforts to obtain the facts needed for intelligent
legislative action. The unremitting obligation of every citizen is to
respond to subpoenae, to respect the dignity of the Congress and its
Committees, and to testify fully with respect to matters within the realm
of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo

Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel
Andal and Julio Jalandoni, PCGG’s nominees to Philcomsat Holdings
Corporation, as well as its directors and officers, must comply with the
Subpoenae Ad Testificandum issued by respondent Senate Committees
directing them to appear and testify in public hearings relative to
Senate Resolution No. 455.

CHAPTER V - FREEDOM OF SPEECH,

PRESS, EXPRESSION, etc.

Section 4. No law shall be passed abridging

the freedom of speech, of expression, or of
the press, or the right of the people
peaceably to assemble and petition the
government for the redress of their
grievances.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,

Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)
 114
Section 26 provides that persons who have been charged with
terrorism or conspiracy to commit terrorism---even if they have been
granted bail because evidence of guilt is not strong—can be:

 Detained under house arrest;

 Restricted from traveling; and/or
 Prohibited from using any cellular phones, computers, or other means of
communications with people outside their residence.

1. Rule on criticisms against acts of public officers

Read:

1. Espuelas vs. People, 90 Phil. 524

2. US vs. Bustos, 37 Phil. 731 (A public official should not be onion-
skinned with reference to comments upon his official acts. The interest of
the government and the society demands full discussion of public affairs)
3. P. vs. Perez, 45 Phil. 599
4. Mercado vs. CFI, 116 SCRA 93

2. Freedom of the press, in general

Read:

BAGUIO MIDLAND COURIER & CECILLE

AFABLE VS. COURT OF APPEALS & RAMON
LABO, JR., 444 SCRA 28 [November 25, 2004]

Freedom of Expression; the public has the right to be informed on the mental,
moral and physical fitness of candidates for public office.

FACTS:

1. In the January 3, 1988 issue of the Baguio Midland Courier (BMC),

Cecille Afable, the Editor-in-Chief, in her column “In and Out of Baguio”
made the following comments:

“Of all the candidates for Mayor of Baguio City), Labo has the most
imponderables about him. People would ask: “can he read and write”?
Why is he always talking about his Japanese father-in-law? Is he really a
Japanes Senator or a barrio Kapitan? Is it true that he will send P18M aid
to Baguio? Somebody wanted to put an advertisement of Labo in the
Midland Courier but was refused because he has not yet paid his account
of the last time he was a candidate for Congress. We will accept all
advertisements for him if he pays his old account first.”
 115
2. In the same column, Cecille Afable wrote the following comments in her
January 10, 1988 column at the Courier:

“I heard that the ‘Dumpty in the Egg’ is campaigning for Cortes. Not
fair. Some real doctors are also busy campaigning against Labo because
he has not also paid their medical services with them. Since he is donating
millions he should also settle his small debts like the reportedly
insignificant amount of P27,000 only. If he wins, several teachers were
signifying to resign and leave Baguio forever, and Pangasinan will be the
franca-liqua of Baguio.”

3. As a result of the above articles, Ramon Labor, Jr. filed a complaint for
Damages before the regional trial Court of Baguio City as he claimed
said articles were libelous. He likewise filed a separate criminal complaint
before the Office of the City Prosecutor of Baguio but was dismissed;

4. Labo claimed that the said articles were tainted with malice because he
was allegedly described as “Dumpty in the Egg” or one “who is a failure
in his business” which is false because he is a very successful
businessman or to mean “zero or a big lie”; that he is a “balasubas” due to
his alleged failure to pay his medical expenses;

5. The petitioners, however, were able to prove that Labo has an unpaid
obligation to the Courier in the amount of P27,415.00 for the ads placed
by his campaigners for the 1984 Batasang Pambansa elections;

6. The Regional Trial Court, Branch 6, Baguio City, in its Decision dated
June 14, 1990 dismissed Labo’s complaint for damages on the ground that
the article of petitioner Afable was privileged and constituted fair
comment on matters of public interest as it dealt with the integrity,
reputation and honesty of private respondent Labo who was a candidate
for Mayor of Baguio City;

7. On January 7, 1992, the Court of Appeals reversed the RTC Decision and
ordered the petitioners to pay Ramon Labo, Jr. damages in the total
amount of P350,000.00 after concluding that the “Dumpty in the Egg”
refers to no one but Labo himself.

Hence, the Petition to the Supreme Court.

ISSUES:

A. WAS LABO THE “DUMPTY IN THE EGG” DESCRIBED IN

THE QUESTIONED ARTICLE/
B. WERE THE ARTICLES SUBJECT OF THE CASE LIBELOUS
OR PRIVILEGED/

HELD:
 116

1. The Court of Appeals is wrong when it held that Labo is the “Dumpty in
the Egg” in the questioned article. This is so because the article stated that
“The Dumpty in the Egg is campaigning for Cortes”, another candidate
for mayor and opponent of Labo himself. It is unbelievable that Labo
campaigned for his opponent and against himself. Although such
gracious attitude on the part of Labo would have been commendable, it is
contrary to common human experience. As pointed out by the petitioners,
had he done that, it is doubtful whether he could have won as City Mayor
of Baguio in the 1988 elections, which he actually did. In line with the
doctrine in BORJAL VS. CA, 310 SCRA 1, that ‘it is also not sufficient
that the offended party recognized himself as the person attacked or
defamed, but it must be shown that at least a 3 rd person could identify him
as the object of the libelous publication’, the case should be dismissed
since Labo utterly failed to dispose of this responsibility.
2. Labo claims that the petitioners could not invoke “public interest ” to
justify the publication since he was not yet a public official at that time.
This argument is without merit since he was already a candidate for City
mayor of Baguio. As such, the article is still within the mantle of
protection guaranteed by the freedom of expression provided in the
Constitution since it is the public’s right to be informed of the mental,
moral and physical fitness of candidates for public office. This was
recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909]
and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254
where the US Supreme Court held:

“…it is of the utmost consequence that the people should

discuss the character and qualifications of candidates for their
suffrages. The importance to the State and to society of such
discussions is so vast, and the advantages derived so great, that they
more than counterbalance the inconvenience of private persons
whose conduct may be involved, and occasional injury to the
reputations of individuals must yield to the public welfare, although
at times such injury may be great. The public benefit from publicity
is so great and the chance of injury to private character so small, that
such discussion must be privileged. “

Clearly, the questioned articles constitute fair comment on a matter

of public interest as it dealt with the character of the private respondent
who was running for the top elective post in Baguio City at that time.

2. PABLITO V. SANIDAD VS. COMELEC,

G.R. NO. 90878, January 29, 1990

Freedom of expression and of the press

(Note: Unanimous en banc decision)
 117

Medialdea, J.

Facts:

1. On October 23, 1989, RA 6766, entitled "AN ACT PROVIDING FOR

AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS
REGION" was enacted into law;

2. Pursuant to said law, the City of Baguio and Provinces of Benguet,

Abra, Mt. Province, Ifugao and Kalinga-Apayao, all comprising the
autonomous region shall take part in a plebiscite originally scheduled for
December 27, 1989 but was reset to January 30, 1990 specifically for the
ratification or rejection of the said act;

3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP
881), the Comelec issued Comelec Resolution No. 2167, Section 19 of
which provides:

"Section 19. Prohibition on columnist, commentators or announcers.-

During the plebiscite campaign period, on the day before and on plebiscite
day, no mass media columnist, commentator, announcer or personality
shall use his column or radio or television time to campaign for or against
the plebiscite issues."

4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a

columnist ("OVERVIEW") for the Baguio Midland Courier, a weekly
newspaper circulated in the City of Baguio and the Cordilleras, filed a
petition for Prohibition with prayer for the issuance of a temporary
restraining order or a writ of preliminary injunction against the Comelec
to enjoin the latter from enforcing Section 19 of resolution No. 2167.
Petitioner claims that the said provision is violative of his constitutional
freedom of expression and of the press and it also constitutes a prior
restraint because it imposes subsequent punishment for those who violate
the same;

5. On November 28, 1989, the Supreme Court issued a temporary

restraining order enjoining the respondent from enforcing Section 19 of
Resolution No. 2167;

6. On January 9, 1990, Comelec through the Solicitor General filed its

Comment and moved for the dismissal of the petition on the ground that
Section 19 of Resolution No. 2167 does not absolutely bar the petitioner
from expressing his views because under Section 90 and 92 of BP 881, he
may still express his views or campaign for or against the act through the
Comelec space and airtime.

Held:
 118

What is granted by Art. IX-C of the Constitution to the Comelec is the

power to supervise and regulate the use and enjoyment of franchises,
permits or other grants issued for the operation of transportation or other
public utilities to the end that equal opportunity, time and space, and the
right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates are insured. The
evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give undue advantage to a candidate in
terms of advertising time and space. This is also the reason why a
columnist, commentator or announcer is required to take a leave of
absence from his work during the campaign period if he is a candidate.

HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION

NOR SECTION 11(B), 2ND PAR. OF RA 6646 CAN BE CONSTRUED
TO MEAN THAT THE COMELEC HAS ALSO BEEN GRANTED THE
RIGHT TO SUPERVISE AND REGULATE THE EXERCISE BY
MEDIA PRACTITIONERS THEMSELVES OF THEIR RIGHT TO
EXPRESSION DURING THE PLEBISCITE PERIODS. Media
practitioners exercising their freedom of expression during the plebiscite
periods are neither the franchise holders nor the candidates. In fact, there
are no candidates in a plebiscite.

While it is true that the petitioner is not absolutely barred from

campaigning for or against the Organic Act, said fact does not cure the
constitutional infirmity of Section 19, Comelec Resolution No. 2167. This
is so because IT IS STILL A RESTRICTION ON HIS CHOICE OF THE
FORUM WHERE HE MAY EXPRESS HIS VIEW.

Plebiscite issues are matters of public concern and importance. The

people's right to be informed and to be able to freely and intelligently
make a decision would be better served by access to an unabridged
discussion of the issues, INCLUDING THE FORUM. The people affected
by the issues presented in a plebiscite should not be unduly burdened by
restrictions on the forum where the right to expression may be exercised.

ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is

hereby declared UNCONSTITUTIONAL.

Read also:

1. In re: Ramon Tulfo,March 19, 199

2. In re: Atty. Emil Jurado, July 12, 1990
3. Burgos vs. Chief of Staff, 133 SCRA 800
4. Corro vs. Lising, 137 SCRA 448
5. Babst vs. NIB, 132 SCRA 316
6. Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item relating to
a judicial proceeding will not be actionable, the same must be [a] a true
 119
and fair report of the actual proceedings; [b] must be done in good faith;
and [c] no comments nor remarks shall be made by the writer.
7. Policarpio vs. Manila Times, 5 SCRA 148
8. Lopez vs. CA, 34 SCRA 116
9. New York Times vs. Sullivan,376 U.S.254
10. Liwayway Publishing vs. PCGG, April 15,l988

3. Freedom of expression in general

Read:
1. RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;
2. Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in one’ s
car is within the protected freedom of expression)
3. National Press Club vs. Comelec, March 5, 1992. Real also the dissenting and
separate opinions of the justices. (Preventing campaigns through radio, TV
and newspapers is valid in order to even the playing field between rich and
poor candidates)
4. Zaldivar vs. Sandiganbayan, GR No. 7960-707 & Zaldivar vs. Gonzales,
GR No. 80578, February 1, 1989
5. Eastern Broadcasting vs. Dans,137 SCRA 628
6. Newsweek vs. IAC, 142 SCRA 171
7. Kapisanan vs. Camara Shoes, 11 SCRA 477
8. IN RE: Atty. Tipon, 79 SCRA 372
9. Lacsa vs. IAC, May 23,1988
10. Kapunan vs. De Villa, December 6, 1988

4. Not within the protection of the freedom of expression clause of the

Constitution

1. Obscenity; test of

Read:

a. P. vs. Kottinger, 45 Phil. 352

b. P vs. GO PIN, August 8, 1955

Tests:

a. Whether the average person applying to contemporary community

standards would find the work appeals to prurient interest;
b. Whether the work depicts or describes a patently offensive sexual conduct;
c. Whether the work as a whole lacks serious literary , artistic, political or
scientific value.
c. Miller vs. California, 37 L. Ed. 2d 419
d. Ginsberg vs. New York,390 U.S. 629
e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the
warrantless seizure of magazines which he believes to be obscene; otherwise,
 120
he will become the complainant, prosecutor and judge at the same time. He
should obtain a search warrant from a judge)

2. Libel or slander; test of-

Read:

a. Lopez and Manila Times cases, supra

b. Quisumbing vs. Lopez, 96 Phil. 510

3. Cases undersub-judice

Read:

a. P. vs. Alarcon, 69 Phil. 265

5. Freedom of assembly and to petition the government for redress of

grievances

GESITE et al. vs. COURT OF APPEALS, 444 SCRA

51

Freedom of public school teachers to

peaceably assemble and petition the
government for redress of grievances; right of
public school teachers to form union.

The petitioners admitted that they participated in concerted mass

actions in Metro Manila from September to the first half of October, 1990
which temporarily disrupted classes in Metro Manila but they claimed that
they were not on strike. They claimed that they were merely exercising
their constitutional right to peaceably assemble and petition the
government for redress of their grievances. Thus, they may not be
penalized administratively.

HELD:

The issue of whether or not the mass action launched by the public
school teachers during the period from September up to the 1 st half of
October, 1990 was a strike or not has been decided in the case of
MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION VS.
LAGUIO, 200 SCRA 323 where it was held that “these mass actions were
to all intents and purposes a strike; they constituted a concerted and
unauthorized stoppage of, or absence from, work which it was the
teachers’ duty to perform, undertaken for essentially economic reasons.”
 121
It is undisputed fact that there was a work stoppage and that
petitioners’ purpose was to realize their demands by withholding their
services. The fact that the conventional term “strike” was not used by the
striking employees to describe their common course of action is
inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND
NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING.

Despite the constitutional right to form associations under the

Constitution, employees in the public service may not engage in strikes,
mass leaves, walkouts and other forms of mass actions that will lead to
temporary stoppage or disruption of public service. The right of
government employees to organize IS LIMITED TO THE
FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT
INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA
619)

The petitioners are not therefore entitled to their salaries during their
suspension because the general proposition is that a public official is not
entitled to any compensation if he had not rendered any service.

BAYAN, KARAPATAN, KILUSANG

MAGBUBUKID NG PILIPINAS (KMP), and
GABRIELA vs. EDUARDO ERMITA, in his capacity
as Executive Secretary, Manila City Mayor LITO
ATIENZA, Chief of the Philippine National Police, Gen.
ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG, G.R. No. 169848, May,
2006

AZCUNA, J.:

The Facts:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838, allege

that they are citizens and taxpayers of the Philippines and that their
rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by
policemen implementing Batas Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess

del Prado, et al., in G.R. No. 169848, who allege that they were
injured, arrested and detained when a peaceful mass action they held
on September 26, 2005 was preempted and violently dispersed by
 122
the police. They further assert that on October 5, 2005, a group they
participated in marched to Malacañang to protest issuances of the
Palace which, they claim, put the country under an “undeclared”
martial rule, and the protest was likewise dispersed violently and
many among them were arrested and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al.,

petitioners in G.R. No. 169881, allege that they conduct peaceful
mass actions and that their rights as organizations and those of their
individual members as citizens, specifically the right to peaceful
assembly, are affected by Batas Pambansa No. 880 and the policy of
“Calibrated Preemptive Response” (CPR) being followed to
implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-

sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They
further allege that on October 6, 2005, a multi-sectoral rally which
KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards
Mendiola bridge. Police officers blocked them along Morayta Street
and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them. Three other
rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them

in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well
as the policy of CPR. They seek to stop violent dispersals of rallies
under the “no permit, no rally” policy and the CPR policy recently
announced.

B.P. No. 880, “The Public Assembly Act of 1985,” provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of

Their Right Peaceably To Assemble And Petition The
Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

SECTION 1. Title . – This Act shall be known as “The Public

Assembly Act of 1985.”

SEC. 2. Declaration of policy. – The constitutional right of

the people peaceably to assemble and petition the government for
redress of grievances is essential and vital to the strength and
 123
stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to life,
liberty and equal protection of the law.

SEC. 3. Definition of terms. – For purposes of this Act:

(b) “Public place” shall include any highway, boulevard,

avenue, road, street, bridge or other thoroughfare, park, plaza
square, and/or any open space of public ownership where the people
are allowed access.

(c) “Maximum tolerance” means the highest degree of

restraint that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of the
same.

SEC. 4. Permit when required and when not required.-- A

written permit shall be required for any person or persons to
organize and hold a public assembly in a public place. However, no
permit shall be required if the public assembly shall be done or
made in a freedom park duly established by law or ordinance or in
private property, in which case only the consent of the owner or the
one entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall
be subject to the rules and regulations of said educational institution.
Political meetings or rallies held during any election campaign
period as provided for by law are not covered by this Act.

SEC. 5. Application requirements.-- All applications for a

permit shall comply with the following guidelines:

1. The applications shall be in writing and shall include the

names of the leaders or organizers; the purpose of such public
assembly; the date, time and duration thereof, and place or streets to
be used for the intended activity; and the probable number of
persons participating, the transport and the public address systems to
be used.

2. The application shall incorporate the duty and

responsibility of applicant under Section 8 hereof.

3. The application shall be filed with the office of the mayor

of the city or municipality in whose jurisdiction the intended activity
is to be held, at least five (5) working days before the scheduled
public assembly.

4. Upon receipt of the application, which must be duly

acknowledged in writing, the office of the city or municipal mayor
 124
shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

SEC. 6. Action to be taken on the application. –

1. It shall be the duty of the mayor or any official acting in

his behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience,
public morals or public health.

2. The mayor or any official acting in his behalf shall act on

the application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed
granted. Should for any reason the mayor or any official acting in
his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the
office of the mayor and shall be deemed to have been filed.

3. If the mayor is of the view that there is imminent and

grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.

4. The action on the permit shall be in writing and served

on the applica[nt] within twenty-four hours.

5. If the mayor or any official acting in his behalf denies the

application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.

6. In case suit is brought before the Metropolitan Trial

Court, the Municipal Trial Court, the Municipal Circuit Trial Court,
the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-
eight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit
or modifying if in terms satisfactory to the applicant shall be
immediately executory.

7. All cases filed in court under this section shall be decided

within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.

8. In all cases, any decision may be appealed to the

Supreme Court.
 125
CPR, on the other hand, is a policy set forth in a press release
by Malacañang dated September 21, 2005, shown in Annex “A” to
the Petition in G.R. No. 169848, thus:

Malacañang Official
Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO

ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of

anti-government groups to inflame the political situation, sow
disorder and incite people against the duty constituted authorities,
we have instructed the PNP as well as the local government units to
strictly enforce a “no permit, no rally” policy, disperse groups that
run afoul of this standard and arrest all persons violating the laws of
the land as well as ordinances on the proper conduct of mass actions
and demonstrations.

The rule of calibrated preemptive response is now in force,

in lieu of maximum tolerance. The authorities will not stand
aside while those with ill intent are herding a witting or
unwitting mass of people and inciting them into actions that are
inimical to public order, and the peace of mind of the national
community.

Unlawful mass actions will be dispersed. The majority of law-

abiding citizens have the right to be protected by a vigilant and
proactive government.

We appeal to the detractors of the government to engage in

lawful and peaceful conduct befitting of a democratic society.

The President’s call for unity and reconciliation stands, based

on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No.

880 is clearly a violation of the Constitution and the International
Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.

They argue that B.P. No. 880 requires a permit before one can
stage a public assembly regardless of the presence or absence of a
 126
clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and
place of a public assembly form part of the message for which the
expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The
words “lawful cause,” “opinion,” “protesting or influencing” suggest
the exposition of some cause not espoused by the government. Also,
the phrase “maximum tolerance” shows that the law applies to
assemblies against the government because they are being tolerated.
As a content-based legislation, it cannot pass the strict scrutiny test.

Furthermore, the law delegates powers to the Mayor without

providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act
that alters the standard of maximum tolerance set forth in B.P. No.
880, aside from being void for being vague and for lack of
publication.

Finally, petitioners KMU, et al., argue that the Constitution

sets no limits on the right to assembly and therefore B.P. No. 880
cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits
provided are unreasonable: First, allowing the Mayor to deny the
permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to
apply for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the

government takes action even before the rallyists can perform their
act, and that no law, ordinance or executive order supports the
policy. Furthermore, it contravenes the maximum tolerance policy
of B.P. No. 880 and violates the Constitution as it causes a chilling
effect on the exercise by the people of the right to peaceably
assemble.

I s s u e s:

4. On the constitutionality of Batas Pambansa No. 880, specifically

Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No.
7160:

1. Are these content-neutral or content-based regulations?

1. Are they void on grounds of overbreadth or vagueness?
2. Do they constitute prior restraint?
 127
3. Are they undue delegations of powers to Mayors?
4. Do they violate international human rights treaties and the Universal
Declaration of Human Rights?

5. On the constitutionality and legality of the policy of Calibrated

Preemptive Response (CPR):

1. Is the policy void on its face or due to vagueness?

2. Is it void for lack of publication?
3. Is the policy of CPR void as applied to the rallies of September 26
and October 4, 5 and 6, 2005?

H e l d:

Petitioners’ standing cannot be seriously challenged. Their

right as citizens to engage in peaceful assembly and exercise the
right of petition, as guaranteed by the Constitution, is directly
affected by B.P. No. 880 which requires a permit for all who would
publicly assemble in the nation’s streets and parks. They have, in
fact, purposely engaged in public assemblies without the required
permits to press their claim that no such permit can be validly
required without violating the Constitutional guarantee.
Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without the
permit.

Section 4 of Article III of the Constitution provides:

SEC. 4. No law shall be passed abridging the freedom of

speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of
grievances.

The first point to mark is that the right to peaceably assemble

and petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy
in the realm of constitutional protection. For these rights constitute
the very basis of a functional democratic polity, without which all
the other rights would be meaningless and unprotected. As stated in
Jacinto v. CA, the Court, as early as the onset of this century, in U.S.
v. Apurado already upheld the right to assembly and petition, as
follows:

There is no question as to the petitioners’ rights to peaceful

assembly to petition the government for a redress of grievances and,
for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities.
These rights are guaranteed by no less than the Constitution,
 128
particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of
Article IX, and Section 3 of Article XIII. Jurisprudence abounds
with hallowed pronouncements defending and promoting the
people’s exercise of these rights. As early as the onset of this
century, this Court in U.S. vs. Apurado, already upheld the right to
assembly and petition and even went as far as to acknowledge:

“It is rather to be expected that more or less disorder will mark

the public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a rule
will be the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every
instance of such disorderly conduct by individual members of a
crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble
and to petition for redress of grievances would expose all those who
took part therein to the severest and most unmerited punishment, if
the purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly
conduct occur on such occasions, the guilty individuals should be
sought out and punished therefor, but the utmost discretion must be
exercised in drawing the line between disorderly and seditious
conduct and between an essentially peaceable assembly and a
tumultuous uprising.”

Again, in Primicias v. Fugoso, the Court likewise sustained the

primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while

sacrosanct, is not absolute. In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble

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 the people. This sovereign police power is exercised by
the government through its legislative branch by the enactment of
 129
laws regulating those and other constitutional and civil rights, and it
may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies
called municipal and city councils enact ordinances for purpose

Reyes v. Bagatsing further expounded on the right and its

limits, as follows:

1. It is thus clear that the Court is called upon to protect the

exercise of the cognate rights to free speech and peaceful assembly,
arising from the denial of a permit. The Constitution is quite
explicit: “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.” Free speech,
like free press, may be identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship or
punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel
suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a “clear and present danger of a
substantive evil that [the State] has a right to prevent.” Freedom of
assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not to
be limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it
is a necessary consequence of our republican institutions and
complements the right of free speech. To paraphrase the opinion of
Justice Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the right of the people
peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In
every case, therefore, where there is a limitation placed on the
exercise of this right, the judiciary is called upon to examine the
effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate
public interest.

2. Nowhere is the rationale that underlies the freedom of

expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: “It must never be
 130
forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the
power of an appeal to reason by all the peaceful means for gaining
access to the mind. It was in order to avert force and explosions due
to restrictions upon rational modes of communication that the
guaranty of free speech was given a generous scope. But utterance
in a context of violence can lose its significance as an appeal to
reason and become part of an instrument of force. Such utterance
was not meant to be sheltered by the Constitution.” What was
rightfully stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their views,
even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole
reason for the expression of dissent. It means more than just the
right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that
there may be something worth hearing from the dissenter. That is to
ensure a true ferment of ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: “It is rather to be expected
that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch
of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of
the leaders over their irresponsible followers.” It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury
to property, and acts of vandalism must be avoided. To give free
rein to one’s destructive urges is to call for condemnation. It is to
make a mockery of the high estate occupied by intellectual liberty in
our scheme of values.

There can be no legal objection, absent the existence of a clear

and present danger of a substantive evil, on the choice of Luneta as
the place where the peace rally would start. The Philippines is
committed to the view expressed in the plurality opinion, of 1939
vintage of, Justice Roberts in Hague v. CIO: “Whenever the title of
streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens,
 131
and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges,
immunities, rights and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in
the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but must not, in the
guise of respondents, be abridged or denied.” The above excerpt
was quoted with approval in Primicias v. Fugoso. Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas, a 1915
decision, where this Court categorically affirmed that plazas or parks
and streets are outside the commerce of man and thus nullified a
contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza “being a promenade for public
use,” which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be
granted for the proposed march and rally starting from a public park
that is the Luneta.

4. Neither can there be any valid objection to the use of the

streets to the gates of the US embassy, hardly two blocks away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking
doubt on the matter. In holding that the then Mayor Fugoso of the
City of Manila should grant a permit for a public meeting at Plaza
Miranda in Quiapo, this Court categorically declared: “Our
conclusion finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the statute of
New Hampshire P.L. chap. 145, section 2, providing that no parade
or procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed
by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license,
and held valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that ‘a statute requiring
persons using the public streets for a parade or procession to procure
a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state
courts, the licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and manner of the
parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or
refuse license, * * *. “Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored: “Civil
 132
liberties, as guaranteed by the Constitution, imply the existence of
an organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it
cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection.”
xxx

6. x x x The principle under American doctrines was given

utterance by Chief Justice Hughes in these words: “The question, if
the rights of free speech and peaceable assembly are to be preserved,
is not as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the
Constitution protects.” There could be danger to public peace and
safety if such a gathering were marked by turbulence. That would
deprive it of its peaceful character. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion in
determining whether or not a permit would be granted. It is not,
however, unfettered discretion. While prudence requires that there
be a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the
assumption – especially so where the assembly is scheduled for a
specific public place – is that the permit must be for the assembly
being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to
be “abridged on the plea that it may be exercised in some other
place.”

xxx

8. By way of a summary. The applicants for a permit to

hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should
be filed well ahead in time to enable the public official concerned to
appraise whether there may be valid objections to the grant of the
permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear
and present danger test be the standard for the decision reached. If
 133
he is of the view that there is such an imminent and grave danger of
a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded,
they can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms,
are highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary, -- even more so than
on the other departments – rests the grave and delicate responsibility
of assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense with
what has been so felicitiously termed by Justice Holmes “as the
sovereign prerogative of judgment.” Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of
such rights, enjoying as they do precedence and primacy. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in
Reyes.

The provisions of B.P. No. 880 practically codify the ruling in

Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November
9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The
applicants for a permit to hold an
assembly should inform the
licensing authority of the date,
the public place where and the
time when it will take place. If it
were a private place, only the
consent of the owner or the one
entitled to its legal possession is
required. Such application
should be filed well ahead in
time to enable the public official
concerned to appraise whether
there may be valid objections to
the grant of the permit or to its
grant but at another public place.
It is an indispensable condition to
such refusal or modification that
the clear and present danger test
SEC. 4. Permit when
required and when not
required.-- A written permit
shall be required for any person
or persons to organize and hold
a public assembly in a public
place. However, no permit
shall be required if the public
assembly shall be done or made
in a freedom park duly
established by law or ordinance
or in private property, in which
case only the consent of the
owner or the one entitled to its
legal possession is required, or
in the campus of a government-
owned and operated
educational institution which
shall be subject to the rules and
regulations of said educational

be the standard for the decision
reached. If he is of the view that
there is such an imminent and
grave danger of a substantive
evil, the applicants must be heard
on the matter. Thereafter, his
decision, whether favorable or
adverse, must be transmitted to
them at the earliest opportunity.
Thus if so minded, they can have
recourse to the proper judicial
authority.
134
institution. Political meetings
or rallies held during any
election campaign period as
provided for by law are not
covered by this Act.
SEC. 5. Application
requirements.-- All
applications for a permit shall
comply with the following
guidelines:
(a) The applications shall be
in writing and shall include the
names of the leaders or
organizers; the purpose of such
public assembly; the date, time
and duration thereof, and place
or streets to be used for the
intended activity; and the
probable number of persons
participating, the transport and
the public address systems to
be used.
(b) The application shall
incorporate the duty and
responsibility of applicant
under Section 8 hereof.
(c) The application shall be
filed with the office of the
mayor of the city or
municipality in whose
jurisdiction the intended
activity is to be held, at least
five (5) working days before
the scheduled public assembly.
(d) Upon receipt of the
application, which must be duly
acknowledged in writing, the
office of the city or municipal
mayor shall cause the same to
immediately be posted at a
conspicuous place in the city or
municipal building.
SEC. 6. Action to be taken
on the application. –
(a) It shall be the duty of the
mayor or any official acting in
 135
his behalf to issue or grant a
permit unless there is clear and
convincing evidence that the
public assembly will create a
clear and present danger to
public order, public safety,
public convenience, public
morals or public health.
(b) The mayor or any official
acting in his behalf shall act on
the application within two (2)
working days from the date the
application was filed, failing
which, the permit shall be
deemed granted. Should for
any reason the mayor or any
official acting in his behalf
refuse to accept the application
for a permit, said application
shall be posted by the applicant
on the premises of the office of
the mayor and shall be deemed
to have been filed.
(c) If the mayor is of the view
that there is imminent and
grave danger of a substantive
evil warranting the denial or
modification of the permit, he
shall immediately inform the
applicant who must be heard on
the matter.
(d) The action on the permit
shall be in writing and served
on the applica[nt] within
twenty-four hours.
(e) If the mayor or any
official acting in his behalf
denies the application or
modifies the terms thereof in
his permit, the applicant may
contest the decision in an
appropriate court of law.
(f) In case suit is brought
before the Metropolitan Trial
Court, the Municipal Trial
Court, the Municipal Circuit
Trial Court, the Regional Trial
Court, or the Intermediate
 136
Appellate Court, its decisions
may be appealed to the
appropriate court within forty-
eight (48) hours after receipt of
the same. No appeal bond and
record on appeal shall be
required. A decision granting
such permit or modifying it in
terms satisfactory to the
applicant shall be immediately
executory.
(g) All cases filed in court
under this section shall be
decided within twenty-four (24)
hours from date of filing.
Cases filed hereunder shall be
immediately endorsed to the
executive judge for disposition
or, in his absence, to the next in
rank.
(h) In all cases, any decision
may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be
followed by formal appeals are
hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban
of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. This was adverted to in Osmeña v.
Comelec,101 where the Court referred to it as a “content-neutral” regulation
of the time, place, and manner of holding public assemblies.102

A fair and impartial reading of B.P. No. 880 thus readily shows that
it refers to all kinds of public assemblies103 that would use public places.
The reference to “lawful cause” does not make it content-based because
assemblies really have to be for lawful causes, otherwise they would not
be “peaceable” and entitled to protection. Neither are the words
“opinion,” “protesting” and “influencing” in the definition of public
assembly content based, since they can refer to any subject. The words
“petitioning the government for redress of grievances” come from the

101 G.R. No. 132231, March 31, 1998, 288 SCRA 447.
102 Ibid, p. 478.
103 Except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute, which
are governed by the Labor Code and other labor laws; political meeting or rallies held during any election campaign period, which are
governed by the Election Code and other election related laws; and public assemblies in the campus of a government-owned and
operated educational institution, which shall be subject to the rules and regulations of said educational institution. (Sec. 3[a] and Sec. 4
of B.P. No. 880).
 137
wording of the Constitution, so its use cannot be avoided. Finally,
maximum tolerance is for the protection and benefit of all rallyists and is
independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear

and present danger to public order, public safety, public convenience,
public morals or public health. This is a recognized exception to the
exercise of the right even under the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.

Neither is the law overbroad. It regulates the exercise of the right

to peaceful assembly and petition only to the extent needed to avoid a
clear and present danger of the substantive evils Congress has the right to
prevent.

There is, likewise, no prior restraint, since the content of the

speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a

precise and sufficient standard – the clear and present danger test stated in
Sec. 6(a). The reference to “imminent and grave danger of a substantive
evil” in Sec. 6(c) substantially means the same thing and is not an
inconsistent standard. As to whether respondent Mayor has the same
power independently under Republic Act No. 7160104 is thus not necessary
to resolve in these proceedings, and was not pursued by the parties in their
arguments.

Finally, for those who cannot wait, Section 15 of the law provides
for an alternative forum through the creation of freedom parks where no
prior permit is needed for peaceful assembly and petition at any time:

SEC. 15. Freedom parks. – Every city and municipality in the

country shall within six months after the effectivity of this Act establish or
designate at least one suitable “freedom park” or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within
the poblacion where demonstrations and meetings may be held at any
time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the

respective mayors shall establish the freedom parks within the period of
six months from the effectivity this Act.

2
104 The Local Government Code. Specifically, Section 16 stating the general welfare clause, thus:
SEC. 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.
 138

The Court now comes to the matter of the CPR. As stated earlier,
the Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the
Solicitor General, thus:

The truth of the matter is the policy of “calibrated preemptive

response” is in consonance with the legal definition of “maximum
tolerance” under Section 3 (c) of B.P. Blg. 880, which is the “highest
degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal of
the same.” Unfortunately, however, the phrase “maximum tolerance” has
acquired a different meaning over the years. Many have taken it to mean
inaction on the part of law enforcers even in the face of mayhem and
serious threats to public order. More so, other felt that they need not
bother secure a permit when holding rallies thinking this would be
“tolerated.” Clearly, the popular connotation of “maximum tolerance” has
departed from its real essence under B.P. Blg. 880.

It should be emphasized that the policy of maximum tolerance is

provided under the same law which requires all pubic assemblies to have
a permit, which allows the dispersal of rallies without a permit, and which
recognizes certain instances when water cannons may be used. This could
only mean that “maximum tolerance” is not in conflict with a “no permit,
no rally policy” or with the dispersal and use of water cannons under
certain circumstances for indeed, the maximum amount of tolerance
required is dependent on how peaceful or unruly a mass action is. Our
law enforcers should calibrate their response based on the circumstances
on the ground with the view to preempting the outbreak of violence.

Thus, when I stated that calibrated preemptive response is being

enforced in lieu of maximum tolerance I clearly was not referring to its
legal definition but to the distorted and much abused definition that it has
now acquired. I only wanted to disabuse the minds of the public from the
notion that law enforcers would shirk their responsibility of keeping the
peace even when confronted with dangerously threatening behavior. I
wanted to send a message that we would no longer be lax in enforcing the
law but would henceforth follow it to the letter. Thus I said, “we have
instructed the PNP as well as the local government units to strictly
enforce a no permit, no rally policy . . . arrest all persons violating the
laws of the land . . . unlawful mass actions will be dispersed.” None of
these is at loggerheads with the letter and spirit of Batas Pambansa Blg.
880. It is thus absurd for complainants to even claim that I ordered my
co-respondents to violate any law.
 139
In sum, this Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of
assembly. For this reason, the so-called calibrated preemptive response
policy has no place in our legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our people and is used
by some police agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not curtail or unduly
restrict freedoms; it merely regulates the use of public places as to the
time, place and manner of assemblies. Far from being insidious,
“maximum tolerance” is for the benefit of rallyists, not the government.
The delegation to the mayors of the power to issue rally “permits ” is valid
because it is subject to the constitutionally-sound “clear and present
danger” standard.

WHEREFORE, the petitions are GRANTED in part, and Calibrated

Preemptive Response (CPR), insofar as it would purport to differ from
or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY
OBSERVE the requirements of maximum tolerance.

Read:

1. Right of assembly..31 SCRA 734 and 742

2. Evangelista vs. Earnshaw, 57 Phil 255
3. Primicias vs. Fuguso, 80 Phil. 71
4. De la Cruz vs. Ela, 99 Phil. 346
5. Navarro vs. Villegas, 31 SCRA 731
6. Philippine Blooming Mills Case,51 SCRA 189
7. Reyes vs. Bagatsing, 125 SCRA 553;see guidelines
8. Ruiz vs. Gordon, 126 SCRA 233
9. Villar vs. TIP, 135 SCRA 705
10. Malabanan vs. Ramento, 129 SCRA 359
11. Carpio vs. Guevara, 106 SCRA 685
12. Nestle' Phils. vs. Sanchez, 154 SCRA 542
13. Arreza vs. Araneta University Foundation, 137 SCRA 94

6. Freedom from prior restraint

Closing a radio station is definitely prior restraint

NEWSOUNDS BROADCASTING NETWORK INC.

and CONSOLIDATED BROADCASTING SYSTEM,
INC.HON. CEASAR G. DY, FELICISIMO G.
MEER, BAGNOS MAXIMO, RACMA
FERNANDEZ-GARCIA and THE CITY OF
CAUAYAN, G.R. Nos. 170270 &179411, April 2, 2009

TINGA, J.:
 140

Bombo Radyo Philippines (“Bombo Radyo”) operates several radio

stations under the AM and FM band throughout the Philippines. These
stations are operated by corporations organized and incorporated by
Bombo Radyo, particularly petitioners Newsounds Broadcasting Network,
Inc. (“Newsounds”) and Consolidated Broadcasting System, Inc. (“CBS”).
Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan
(DZNC), an AM radio broadcast station operating out of Cauayan City,
Isabela. CBS, in turn, runs Star FM DWIT Cauayan (“Star FM”), also
operating out of Cauayan City, airing on the FM band. The service areas
of DZNC and Star FM extend from the province of Isabela to throughout
Region II and the Cordillera region.105[6] THE ONLY OTHER STATION
OPERATING IN CAUAYAN CITY, ISABELA, is owned by the family of
respondent Mayor Dy.

In 1996, Newsounds commenced relocation of its broadcasting

stations, management office and transmitters on property located in
Minante 2, Cauayan City, Isabela. The property is owned by CBS
Development Corporation (CDC), an affiliate corporation under the
Bombo Radyo network which holds title over the properties used by
Bombo Radyo stations throughout the country. 106[7] On 28 June 1996,
CDC was issued by the then municipal government of Cauayan a building
permit authorizing the construction of a commercial establishment on the
property.107[8] On 5 July 1996, the Housing and Land Use Regulatory
Board (HLURB) issued a Zoning Decision certifying the property as
commercial.108[9] That same day, the Office of the Municipal Planning and
Development Coordinator (OMPDC) of Cauayan affirmed that the
commercial structure to be constructed by CDC conformed to local
zoning regulations, noting as well that the location “is classified as a
Commercial area.”109[10] Similar certifications would be issued by OMPDC
from 1997 to 2001.110[11]

A building was consequently erected on the property, and therefrom,

DZNC and Star FM operated as radio stations. Both stations successfully
secured all necessary operating documents, including mayor’s permits
from 1997 to 2001.111[12] During that period, CDC paid real property taxes
on the property based on the classification of the land as commercial.112[13]

105
[6]
Rollo (G.R. No. 179411), p. 13.
106
[7]
Id.
107
[8]
Id. at 90.

108[9]Id. at 91.
109
[10]
Id. at 92.
110
[11]
Id. at 93-97.
111
[12]
Id. at 98-102.
112
[13]
Id. at 103-110.
 141

All that changed beginning in 2002. On 15 January of that year,

petitioners applied for the renewal of the mayor’s permit. The following
day, the City Assessor’s Office in Cauayan City noted on CDC’s
Declaration of Real Property filed for 2002 confirmed that based on the
existing file, CDC’s property was classified as “commercial.”113[14] On 28
January, representatives of petitioners formally requested then City
Zoning Administrator-Designate Bagnos Maximo (Maximo) to issue a
zoning clearance for the property.114[15] Maximo, however, required
petitioners to submit “either an approved land conversion papers from the
Department of Agrarian Reform (DAR) showing that the property was
converted from prime agricultural land to commercial land, or an
approved resolution from the Sangguniang Bayan or Sangguniang
Panglungsod authorizing the re-classification of the property from
agricultural to commercial land.”115[16] Petitioners had never been required
to submit such papers before, and from 1996 to 2001, the OMPDC had
consistently certified that the property had been classified as commercial.
THEREAFTER, THE MUNICIPAL OFFICIALS PADLOCKED THE
RADIO STATIONS BASED ON THE GROUND THAT THE
PETITIONERS FAILED TO SUBMIT THE requisite zoning clearance
needed for the issuance of the mayor’s permit because there was allegedly
no DAR Decision converting said land from agricultural to commercial.

Petitioners filed a petition for mandamus, docketed as SCA No. 20-

171, with the RTC of Cauayan City, Branch 20 to compel the municipality
to allow the radio stations to operate. The petition was accompanied by an
application for the issuance of temporary restraining order and writ of
preliminary prohibitory injunction, both provisional reliefs being denied
by the RTC through an Order dated 20 April 2004. Thereafter, the petition
was dismissed by the RTC as well as the Court of Appeals.

Hence, this case before the Supreme Court.

I S S U E:

Is the closure of the petitioners’ radio stations constitutional?

HELD:

The closure constitutes prior restraint.

113
[14]
Id. at 103.
114
[15]
Id. at 111.

115
[16]
Id. at 18-19.
 142
The fundamental constitutional principle that informs our analysis of
both petitions is the freedom of speech, of expression or the press. 116[32]
Free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship
and punishment. There is to be no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of substantive evil that
Congress has a right to prevent.117[33]

Petitioners have taken great pains to depict their struggle as a

textbook case of denial of the right to free speech and of the press. In their
tale, there is undeniable political color. They admit that in 2001, Bombo
Radyo “was aggressive in exposing the widespread election irregularities
in Isabela that appear to have favored respondent Dy and other members
of the Dy political dynasty.”118[34] Respondent Ceasar Dy is the brother of
Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in
his re-election bid in 2004 by Grace Padaca, a former assistant station
manager at petitioners’ own DZNC Bombo Radyo. 119[35] A rival AM radio
station in Cauayan City, DWDY, is owned and operated by the Dy
family.120[36] Petitioners likewise direct our attention to a 20 February 2004
article printed in the Philippine Daily Inquirer where Dy is quoted as
intending “to file disenfranchisement proceedings against DZNC-AM.”121
[37]

The following undisputed facts bring the issue of free expression to

fore. Petitioners are authorized by law to operate radio stations in
Cauayan City, and had been doing so for some years undisturbed by local
authorities. Beginning in 2002, respondents in their official capacities
have taken actions, whatever may be the motive, that have impeded the
ability of petitioners to freely broadcast, if not broadcast at all. These
actions have ranged from withholding permits to operate to the physical
closure of those stations under color of legal authority. While once
petitioners were able to broadcast freely, the weight of government has
since bore down upon them to silence their voices on the airwaves. An
elementary school child with a basic understanding of civics lessons will
recognize that free speech animates these cases.

116
[32]
Article 3, Sec. 4.
117
[33]
Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).
118
[34]
Rollo (G.R. No. 170270), p. 27.
119
[35]
See TJ Burgonio, “Isabela gov who ended a dynasty wins RM prize, ” Philippine Daily Inquirer (1 August 2008), at
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view /20080801-151950/Isabela-gov-who-ended-a-dynasty-wins-
RM-prize
120
[36]
Rollo (G.R. No. 170270), p. 17.
121
[37]
Rollo (G.R. No. 179411), p. 142.
 143
Without taking into account any extenuating circumstances that may
favor the respondents, we can identify the bare acts of closing the radio
stations or preventing their operations as an act of prior restraint against
speech, expression or of the press. Prior restraint refers to official
governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination.122[38] While any system
of prior restraint comes to court bearing a heavy burden against its
constitutionality,123[39] not all prior restraints on speech are invalid. 124
[40]

That the acts imputed against respondents constitute a prior restraint

on the freedom of expression of respondents who happen to be members
of the press is clear enough. There is a long-standing tradition of special
judicial solicitude for free speech, meaning that governmental action
directed at expression must satisfy a greater burden of justification than
governmental action directed at most other forms of behavior.125[41] We had
said in SWS v. COMELEC: “Because of the preferred status of the
constitutional rights of speech, expression, and the press, such a measure
is vitiated by a weighty presumption of invalidity. Indeed, ‘any system of
prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . . The Government 'thus
carries a heavy burden of showing justification for the enforcement of
such restraint.’ There is thus a reversal of the normal presumption of
validity that inheres in every legislation.”126[42]

At the same time, jurisprudence distinguishes between a content-

neutral regulation, i.e., merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under
well defined standards; and a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the
utterance or speech.127[43] Content-based laws are generally treated as more
suspect than content-neutral laws because of judicial concern with
discrimination in the regulation of expression. 128[44] Content-neutral
regulations of speech or of conduct that may amount to speech, are
subject to lesser but still heightened scrutiny.129[45]

122
[38]
Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 491.
123
[39]
Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 585 (2001); citing New York Times v. United States, 403
U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971).
124
[40]
Chavez v. Gonzales, G.R. No. 168335, 15 February 2008, 545 SCRA 441, 492.
125
[41]
GUNTHER, et al., CONSTITUTIONAL LAW (14th ed., 2001), at 964.
126
[42]
SWS v. COMELEC, supra note 39.
127
[43]
Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 493.
128
[44]
GUNTHER, et al., supra note 44.
129
[45]
Id. at 957.
 144
Ostensibly, the act of an LGU requiring a business of proof that the
property from which it operates has been zoned for commercial use can be
argued, when applied to a radio station, as content-neutral since such a
regulation would presumably apply to any other radio station or business
enterprise within the LGU.

However, the circumstances of this case dictate that we view the

action of the respondents as a content-based restraint. In their petition for
mandamus filed with the RTC, petitioners make the following relevant
allegations:

6.1. With specific reference to DZNC, Newsounds, to

this date, is engaged in discussing public issues that include,
among others, the conduct of public officials that are
detrimental to the constituents of Isabela, including Cauayan
City. In view of its wide coverage, DZNC has been a
primary medium for the exercise of the people of Isabela of
their constitutional right to free speech. Corollarily, DZNC
has always been at the forefront of the struggle to maintain
and uphold freedom of the press, and the people’s corollary
right to freedom of speech, expression and petition the
government for redress of grievances.

6.2. Newsound’s only rival AM station in Cauayan and

the rest of Isabela, DWDY, is owned and operated by the
family of respondent Dy.130[46]

xxxx

35. Respondents closure of petitioners’ radio stations is clearly

tainted with ill motives.

35.1. It must be pointed out that in the 2001 elections,

Bombo Radyo was aggressive in exposing the widespread
election irregularities in Isabela that appear to have favored
respondent Dy and other members of the Dy political
dynasty. It is just too coincidental that it was only after the
2001 elections (i.e., 2002) that the Mayor’s Office started
questioning petitioners’ applications for renewal of their
mayor’s permits.

35.2. In an article found in the Philippine Daily inquirer

dated 20 February 2004, respondent Dy was quoted as
saying that he will “disenfranchise the radio station.” Such
statement manifests and confirms that respondents’ denial of
petitioners’ renewal applications on the ground that the
130
[46]
Rollo (G.R. No. 179411), p. 170.
 145
Property is commercial is merely a pretext and that their real
agenda is to remove petitioners from Cauayan City and
suppress the latter’s voice. This is a blatant violation of the
petitioners’ constitutional right to press freedom.

35.3. The timing of respondents’ closure of petitioners’

radio stations is also very telling. The closure comes at a
most critical time when the people are set to exercise their
right of suffrage. Such timing emphasizes the ill motives of
respondents.131[47]

All those circumstances lead us to believe that the steps employed

by respondents to ultimately shut down petitioner’s radio station were
ultimately content-based. The United States Supreme Court generally
treats restriction of the expression of a particular point of view as the
paradigm violation of the First Amendment.132[53] The facts confronting us
now could have easily been drawn up by a constitutional law professor
eager to provide a plain example on how free speech may be violated.

The Court is of the position that the actions of the respondents

warrant heightened or strict scrutiny from the Court, the test which we
have deemed appropriate in assessing content-based restrictions on free
speech, as well as for laws dealing with freedom of the mind or restricting
the political process, 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. 133[54] The immediate implication of
the application of the “strict scrutiny” test is that the burden falls upon
respondents as agents of government to prove that their actions do not
infringe upon petitioners’ constitutional rights. As content regulation
cannot be done in the absence of any compelling reason, 134[55] the burden
lies with the government to establish such compelling reason to infringe
the right to free expression.

It is thus evident that respondents had no valid cause at all to even

require petitioners to secure “approved land conversion papers from the
DAR showing that the property was converted from prime agricultural
land to commercial land.” That requirement, assuming that it can be
demanded by a local government in the context of approving mayor’s
permits, should only obtain upon clear proof that the property from where
the business would operate was classified as agricultural under the LGU ’s
land use plan or zoning ordinances and other relevant laws. No evidence

131
[47]
Id. at 178-179.
132
[53]
GUNTHER et. al., supra note 44.
133
[54]
See White Light v. Court of Appeals, G.R. No. 122846, 20 January 2009.
134
[55]
Osmeña v. COMELEC, 351 Phil. 692, 711 (1998).
 146
to that effect was presented by the respondents either to the petitioners, or
to the courts.

Having established that respondents had violated petitioners’ legal

and constitutional rights, let us now turn to the appropriate reliefs that
should be granted.

We turn to the issue of damages. Petitioners had sought to recover

from respondents P8 Million in temperate damages, P1 Million in
exemplary damages, and P1 Million in attorney’s fees. Given respondents’
clear violation of petitioners’ constitutional guarantee of free expression,
the right to damages from respondents is squarely assured by Article 32
(2) of the Civil Code, which provides:

Art. 32. Any public officer or employee, or any private

individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:

x x x x

(2) Freedom of speech;

We noted in Lim v. Ponce de Leon that “[p]ublic officials in the past

have abused their powers on the pretext of justifiable motives or good
faith in the performance of their duties… [and] the object of [Article 32 of
the Civil Code] is to put an end to official abuse by plea of the good
faith.”135[85] The application of Article 32 not only serves as a measure of
pecuniary recovery to mitigate the injury to constitutional rights, it
likewise serves notice to public officers and employees that any violation
on their part of any person’s guarantees under the Bill of Rights will meet
with final reckoning.

The present prayer for temperate damages is premised on the

existence of pecuniary injury to petitioner due to the actions of
respondents, the amount of which nevertheless being difficult to prove. 136
[86]
Temperate damages avail when the court finds that some pecuniary
loss has been suffered but its amount can not, from the nature of the case,
be proved with certainty.137[87] The existence of pecuniary injury at bar
cannot be denied. Petitioners had no way of knowing it when they filed
their petition, but the actions of respondents led to the closure of their
radio stations from June 2004 until this Court issued a writ of
135
[85]
160 Phil. 991, 1001 (1975). See also MHP Garments, Inc., v. Court of Appeals, G.R. No. 86720, 2 September 1994,
236 SCRA 227, 235.
136
[86]
Rollo (G.R. No. 179411), p. 183.
137
[87]
See CIVIL CODE, Art. 2224.
 147
138[88]
preliminary injunction in January 2006. The lost potential income
during that one and a half year of closure can only be presumed as
substantial enough. Still, despite that fact, possibly unanticipated when the
original amount for claimed temperate damages was calculated,
petitioners have maintained before this Court the same amount, P8
Million, for temperate damages. The said amount is “reasonable under the
circumstances.”139[89]

Exemplary damages can be awarded herein, since temperate

damages are available. Public officers who violate the Constitution they
are sworn to uphold embody “a poison of wickedness that may not run
through the body politic.”140[90] Respondents, by purposely denying the
commercial character of the property in order to deny petitioners’ the
exercise of their constitutional rights and their business, manifested bad
faith in a wanton, fraudulent, oppressive and malevolent manner.141[91] The
amount of exemplary damages need not be proved where it is shown that
plaintiff is entitled to temperate damages, 142[92] and the sought for amount
of P1 Million is more than appropriate. We likewise deem the prayer for
P1 Million in attorney’s fees as suitable under the circumstances.

WHEREFORE, the petitions are GRANTED. The assailed

decisions of the Court of Appeals and the Regional Trial Court of
Cauayan City, Branch 24, are hereby reversed and set aside.

Prior restraint on a TV Program

BRO. ELISEO SORIANO VS. MOVIE AND

TELEVISION REVIEW AND CLASSIFICATION
BOARD, G.R. NO. 164785, APRIL 29, 2009

VELASCO, JR., J.:

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the

program Ang Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

138
[88]
According to an article posted on the official website of Bombo Radyo, DZNC accordingly resumed broadcast on 8
February 2006. See http://www.bomboradyo.com/archive/ new/stationprofile /bombocauayan/index.htm (last visited, 6 March
2009)
139
[89]
See CIVIL CODE, Art. 2225.
140
[90]
[Exemplary damages] are an antidote so that the poison of wickedness may not run through the body politic. ” Octot
v. Ybañez, etc., et al., 197 Phil. 76, 82 (1982).
141
[91]
“[The award of exemplary damages] would be allowed only if the guilty party acted in a wanton, fraudulent,
reckless, oppressive or malevolent manner.” Octot v. Ybañez, supra note 87, at 85; citing Ong Yiu v. CA, 91 SCRA 223.
142
[92]
Patricio v. Hon. Leviste, G.R. No. L-51832, 26 April 1989.
 148
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba.
Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay
Michael ang gumagana ang itaas, o di ba! O, masahol pa sa
putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito.

Two days after, before the MTRCB, separate but almost identical
affidavit-complaints were lodged by Jessie L. Galapon and seven other private
respondents, all members of the Iglesia ni Cristo (INC), against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who
felt directly alluded to in petitioner’s remark, was then a minister of INC and a
regular host of the TV program Ang Tamang Daan.143[3] Forthwith, the MTRCB
sent petitioner a notice of the hearing on August 16, 2004 in relation to the
alleged use of some cuss words in the August 10, 2004 episode of Ang Dating
Daan.144[4]

After a preliminary conference in which petitioner appeared, the MTRCB,

by Order of August 16, 2004, preventively suspended the showing of Ang
Dating Daan program for 20 days, in accordance with Section 3(d) of
Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3,
Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD
1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.145[5] The same
order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive

suspension order, praying that Chairperson Consoliza P. Laguardia and two
other members of the adjudication board recuse themselves from hearing the
case.146[6] Two days after, however, petitioner sought to withdraw 147[7] his
motion for reconsideration, followed by the filing with this Court of a petition
for certiorari and prohibition,148[8] docketed as G.R. No. 164785, to nullify the
preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a
decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is

hereby rendered, finding respondent Soriano liable for his utterances
and thereby imposing on him a penalty of three (3) months
suspension from his program, “Ang Dating Daan”.

SO ORDERED.149[9]

[3]
143 Id. at 924, Private Respondents’ Memorandum.
[4]
144 Id. at 110.
[5]
145 Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of PD 1986 and the IRR.
[6]
146 Id. at 141-151.
[7]
147 Id. at 152-154.
[8]
148 Id. at 166-252.
[9]
149 Id. at 378.
 149
Petitioner then filed this petition for certiorari and prohibition with prayer
for injunctive relief, docketed as G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED

BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004
AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x
x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT

PROVIDES FOR THE ISSUANCE OF PREVENTIVE
SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE
AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION
UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION;
AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND
EXPRESSION.150[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY

UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN
EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,

UNDULY INFRINGES ON THE CONSTITUTIONAL
GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND
EXPRESSION AS IT PARTAKES OF THE NATURE OF A
SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND
REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH;
II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,

UNDULY INFRINGES ON THE CONSTITUTIONAL
[10]
150 Id. at 182.
 150
GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE
[IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E., DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED
IN THE CASE AT BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT

PROVIDE FOR A SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT
IT DOES NOT PROVIDE FOR THE PENALTIES FOR
VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE
[IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E. DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED
IN THE CASE AT BENCH151[11]

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the
assailed order of preventive suspension, although its implementability had
already been overtaken and veritably been rendered moot by the equally
assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed

against him and the relevant IRR provision authorizing it are invalid inasmuch
as PD 1986 does not expressly authorize the MTRCB to issue preventive
suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be

administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a
mix of the five, as may be conferred by the Constitution or by statute. 152[12] They
have in fine only such powers or authority as are granted or delegated,
expressly or impliedly, by law.153[13] And in determining whether an agency has
certain powers, the inquiry should be from the law itself. But once ascertained
as existing, the authority given should be liberally construed.154[14]

[11]
151 Id. at 46.
[12]
152 Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747.
[13]
153 Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769.
[14]
154 Agpalo, ADMINISTRATIVE LAW (2005); citing Matienzon v. Abellera, G.R. No. 77632, June 8, 1988, 162 SCRA
1.
 151
A perusal of the MTRCB’s basic mandate under PD 1986 reveals the
possession by the agency of the authority, albeit impliedly, to issue the
challenged order of preventive suspension. And this authority stems naturally
from, and is necessary for the exercise of, its power of regulation and
supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall

have the following functions, powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from

and/or prohibit the x x x production, x x x exhibition and/or
television broadcast of the motion pictures, television programs and
publicity materials subject of the preceding paragraph, which, in the
judgment of the board applying contemporary Filipino cultural
values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of wrong or
crime such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for

the x x x production, copying, distribution, sale, lease, exhibition,
and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be x x x
produced, copied, reproduced, distributed, sold, leased, exhibited
and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or

incidental to the attainment of the purposes and objectives of this
Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of

the MTRCB’s authority and functions expressly set forth in PD 1986, more
 152
particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB
to “supervise, regulate, and grant, deny or cancel, permits for the x x x
exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs
and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast
by television.”

Surely, the power to issue preventive suspension forms part of the

MTRCB’s express regulatory and supervisory statutory mandate and its
investigatory and disciplinary authority subsumed in or implied from such
mandate. Any other construal would render its power to regulate, supervise, or
discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself,

being merely a preliminary step in an administrative investigation. 155[15] And the
power to discipline and impose penalties, if granted, carries with it the power to
investigate administrative complaints and, during such investigation, to
preventively suspend the person subject of the complaint.156[16]

To reiterate, preventive suspension authority of the MTRCB springs from

its powers conferred under PD 1986. The MTRCB did not, as petitioner
insinuates, empower itself to impose preventive suspension through the
medium of the IRR of PD 1986. It is true that the matter of imposing preventive
suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the
IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time

during the pendency of the case, and in order to prevent or stop
further violations or for the interest and welfare of the public, the
Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits
involved, and/or closure of the x x x television network, cable TV
station x x x provided that the temporary/preventive order thus
issued shall have a life of not more than twenty (20) days from the
date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986,

without more, would not work to deprive the MTRCB a basic disciplinary tool,
such as preventive suspension. Recall that the MTRCB is expressly empowered
by statute to regulate and supervise television programs to obviate the
exhibition or broadcast of, among others, indecent or immoral materials and to
impose sanctions for violations and, corollarily, to prevent further violations as
it investigates. Contrary to petitioner’s assertion, the aforequoted Sec. 3 of the
IRR neither amended PD 1986 nor extended the effect of the law. Neither did

[15]
155 Lastimoso v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497.
[16]
156 Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R. No. 97149,
March 31, 1992, 207 SCRA 689.
 153
the MTRCB, by imposing the assailed preventive suspension, outrun its
authority under the law. Far from it. The preventive suspension was actually
done in furtherance of the law, imposed pursuant, to repeat, to the MTRCB’s
duty of regulating or supervising television programs, pending a determination
of whether or not there has actually been a violation. In the final analysis, Sec.
3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986
bestowed, albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case,
sufficient to authorize the MTRCB’s assailed action. Petitioner’s restrictive
reading of PD 1986, limiting the MTRCB to functions within the literal
confines of the law, would give the agency little leeway to operate, stifling and
rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the
MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate,
provides, “To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x x.”
Indeed, the power to impose preventive suspension is one of the implied powers
of MTRCB. As distinguished from express powers, implied powers are those
that can be inferred or are implicit in the wordings or conferred by necessary or
fair implication of the enabling act.157[17] As we held in Angara v. Electoral
Commission, when a general grant of power is conferred or a duty enjoined,
every particular power necessary for the exercise of one or the performance of
the other is also conferred by necessary implication. 158[18] Clearly, the power to
impose preventive suspension pending investigation is one of the implied or
inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR

provision on preventive suspension is applicable only to motion pictures and
publicity materials. The scope of the MTRCB’s authority extends beyond
motion pictures. What the acronym MTRCB stands for would suggest as much.
And while the law makes specific reference to the closure of a television
network, the suspension of a television program is a far less punitive measure
that can be undertaken, with the purpose of stopping further violations of PD
1986. Again, the MTRCB would regretfully be rendered ineffective should it
be subject to the restrictions petitioner envisages.

Just as untenable is petitioner’s argument on the nullity of the preventive

suspension order on the ground of lack of hearing. As it were, the MTRCB
handed out the assailed order after petitioner, in response to a written notice,
appeared before that Board for a hearing on private respondents’ complaint. No
less than petitioner admitted that the order was issued after the adjournment of
the hearing,159[19] proving that he had already appeared before the MTRCB.
Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall
issue “[a]ny time during the pendency of the case.” In this particular case, it
[17]
157 Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 295-296; citing
Azarcon, supra note 12, at 761; Radio Communications of the Philippines, Inc. v. Santiago, Nos. L-29236 & 29247, August 21,
1974, 58 SCRA 493, 497.
[18]
158 63 Phil. 139, 177 (1936).
[19]
159 Rollo (G.R. No. 164785), p. 12.
 154
was done after MTRCB duly apprised petitioner of his having possibly violated
PD 1986160[20] and of administrative complaints that had been filed against him
for such violation.161[21]

At any event, that preventive suspension can validly be meted out even
without a hearing.162[22]

Petitioner next faults the MTRCB for denying him his right to the equal
protection of the law, arguing that, owing to the preventive suspension order, he
was unable to answer the criticisms coming from the INC ministers.

Petitioner’s position does not persuade. The equal protection clause

demands that “all persons subject to legislation should be treated alike, under
like circumstances and conditions both in the privileges conferred and liabilities
imposed.”163[23] It guards against undue favor and individual privilege as well as
hostile discrimination.164[24] Surely, petitioner cannot, under the premises, place
himself in the same shoes as the INC ministers, who, for one, are not facing
administrative complaints before the MTRCB. For another, he offers no proof
that the said ministers, in their TV programs, use language similar to that which
he used in his own, necessitating the MTRCB’s disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains
temporarily gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor the
fact that the circumstances of petitioner, as host of Ang Dating Daan, on one
hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are,
within the purview of this case, simply too different to even consider whether or
not there is a prima facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that

what he uttered was religious speech, adding that words like “putang babae”
were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question

can come within the pale of Sec. 5, Article III of the 1987 Constitution on
religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a

religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.

[20]
160 Id. at 94.
[21]
161 Id. at 95.
[22]
162 Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992, 206 SCRA 256.
[23]
163 1 De Leon, PHILIPPINE CONSTITUTIONAL LAW 274 (2003).
[24]
164 Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing Ichong v. Hernandez, 101 Phil. 1155
(1957) and other cases.
 155
There is nothing in petitioner’s statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with his statements in a televised
bible exposition program does not automatically accord them the character of a
religious discourse. Plain and simple insults directed at another person cannot be
elevated to the status of religious speech.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from
hosting Ang Dating Daan for three months on the main ground that the decision
violates, apart from his religious freedom, his freedom of speech and expression
guaranteed under Sec. 4, Art. III of the Constitution, which reads:

No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.

It is settled that expressions by means of newspapers, radio, television,

and motion pictures come within the broad protection of the free speech and
expression clause.165[25] Each method though, because of its dissimilar presence
in the lives of people and accessibility to children, tends to present its own
problems in the area of free speech protection, with broadcast media, of all
forms of communication, enjoying a lesser degree of protection. 166[26] Just as
settled is the rule that restrictions, be it in the form of prior restraint, e.g.,
judicial injunction against publication or threat of cancellation of
license/franchise, or subsequent liability, whether in libel and damage suits,
prosecution for sedition, or contempt proceedings, are anathema to the freedom
of expression. Prior restraint means official government restrictions on the press
or other forms of expression in advance of actual publication or
dissemination.167[27] The freedom of expression, as with the other freedoms
encased in the Bill of Rights, is, however, not absolute. It may be regulated to
some extent to serve important public interests, some forms of speech not being
protected. As has been held, the limits of the freedom of expression are reached
when the expression touches upon matters of essentially private concern. 168[28] In
the oft-quoted expression of Justice Holmes, the constitutional guarantee
“obviously was not intended to give immunity for every possible use of
language.”169[29] From Lucas v. Royo comes this line: “[T]he freedom to express
165[25] US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v. Dans, Jr., No. L-59329, July 19,
1985, 137 SCRA 628.
[26]
166 Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v. Pacifica Foundation, 438 U.S. 726;
Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, 137 SCRA 717.
[27]
167 J.G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY
205 (1996).
[28]
168 Lagunsad v. Soto vda. De Gonzales, No. L-32066, August 6, 1979, 92 SCRA 476.
[29]
169 Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218.
 156
one’s sentiments and belief does not grant one the license to vilify in public the
honor and integrity of another. Any sentiments must be expressed within the
proper forum and with proper regard for the rights of others.”170[30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,171[31] “there are

certain well-defined and narrowly limited classes of speech that are harmful,
the prevention and punishment of which has never been thought to raise any
Constitutional problems.” In net effect, some forms of speech are not protected
by the Constitution, meaning that restrictions on unprotected speech may be
decreed without running afoul of the freedom of speech clause. 172[32] A speech
would fall under the unprotected type if the utterances involved are “no
essential part of any exposition of ideas, and are of such slight social value as a
step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.”173[33] Being of little or
no value, there is, in dealing with or regulating them, no imperative call for the
application of the clear and present danger rule or the balancing-of-interest test,
they being essentially modes of weighing competing values, 174[34] or, with like
effect, determining which of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of

speech.

The Court rules otherwise. It has been established in this jurisdiction that
unprotected speech or low-value expression refers to libelous statements,
obscenity or pornography, false or misleading advertisement, insulting or
“fighting words”, i.e., those which by their very utterance inflict injury or tend
to incite an immediate breach of peace and expression endangering national
security.

The Court finds that petitioner’s statement can be treated as obscene, at

least with respect to the average child. Hence, it is, in that context, unprotected
speech. In Fernando v. Court of Appeals, the Court expressed difficulty in
formulating a definition of obscenity that would apply to all cases, but
nonetheless stated the ensuing observations on the matter:

There is no perfect definition of “obscenity” but the latest

word is that of Miller v. California which established basic
guidelines, to wit: (a) whether to the average person, applying
contemporary standards would find the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or scientific
value. But, it would be a serious misreading of Miller to conclude
[30]
170 G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490.
171[31] 315 U.S. 568 (1942).
172[32] Agpalo, PHILIPPINE CONSTITUTIONAL LAW 358 (2006).
173[33] Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248.
174[34] Bernas, supra note 27, at 248.
 157
that the trier of facts has the unbridled discretion in determining
what is “patently offensive.” x x x What remains clear is that
obscenity is an issue proper for judicial determination and should be
treated on a case to case basis and on the judge’s sound discretion. 175
[35]

Following the contextual lessons of the cited case of Miller v.

California,176[36] a patently offensive utterance would come within the pale of
the term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards.

A cursory examination of the utterances complained of and the

circumstances of the case reveal that to an average adult, the utterances “Gago
ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas,
o di ba!” may not constitute obscene but merely indecent utterances. They can
be viewed as figures of speech or merely a play on words. In the context they
were used, they may not appeal to the prurient interests of an adult. The
problem with the challenged statements is that they were uttered in a TV
program that is rated “G” or for general viewership, and in a time slot that
would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be
taken literally, children could hardly be expected to have the same discernment.
Without parental guidance, the unbridled use of such language as that of
petitioner in a television broadcast could corrupt impressionable young minds.
The term “putang babae” means “a female prostitute,” a term wholly
inappropriate for children, who could look it up in a dictionary and just get the
literal meaning, missing the context within which it was used. Petitioner
further used the terms, “ang gumagana lang doon yung ibaba,” making
reference to the female sexual organ and how a female prostitute uses it in her
trade, then stating that Sandoval was worse than that by using his mouth in a
similar manner. Children could be motivated by curiosity and ask the meaning
of what petitioner said, also without placing the phrase in context. They may be
inquisitive as to why Sandoval is different from a female prostitute and the
reasons for the dissimilarity. And upon learning the meanings of the words
used, young minds, without the guidance of an adult, may, from their end, view
this kind of indecent speech as obscene, if they take these words literally and
use them in their own speech or form their own ideas on the matter. In this
particular case, where children had the opportunity to hear petitioner ’s words,
when speaking of the average person in the test for obscenity, we are speaking
of the average child, not the average adult. The average child may not have the
adult’s grasp of figures of speech, and may lack the understanding that language
may be colorful, and words may convey more than the literal meaning.
Undeniably the subject speech is very suggestive of a female sexual organ and

[35]
175 G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361.
[36]
176 413 U.S. 15.
 158
its function as such. In this sense, we find petitioner’s utterances obscene and
not entitled to protection under the umbrella of freedom of speech.

Even if we concede that petitioner’s remarks are not obscene but merely
indecent speech, still the Court rules that petitioner cannot avail himself of the
constitutional protection of free speech. Said statements were made in a
medium easily accessible to children. With respect to the young minds, said
utterances are to be treated as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances.

But while a jurisprudential pattern involving certain offensive utterances
conveyed in different mediums has emerged, this case is veritably one of first
impression, it being the first time that indecent speech communicated via
television and the applicable norm for its regulation are, in this jurisdiction,
made the focal point. Federal Communications Commission (FCC) v. Pacifica
Foundation,177[37] a 1978 American landmark case cited in Eastern
Broadcasting Corporation v. Dans, Jr.178[38] and Chavez v. Gonzales,179[39] is a
rich source of persuasive lessons. Foremost of these relates to indecent speech
without prurient appeal component coming under the category of protected
speech depending on the context within which it was made, irresistibly
suggesting that, within a particular context, such indecent speech may validly
be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered “filthy” words 180[40] earlier

recorded in a monologue by a satiric humorist later aired in the afternoon over a
radio station owned by Pacifica Foundation. Upon the complaint of a man who
heard the pre-recorded monologue while driving with his son, FCC declared the
language used as “patently offensive” and “indecent” under a prohibiting law,
though not necessarily obscene. FCC added, however, that its declaratory order
was issued in a “special factual context,” referring, in gist, to an afternoon radio
broadcast when children were undoubtedly in the audience. Acting on the
question of whether the FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to two special features of the
broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting
is uniquely accessible to children. The US Court, however, hastened to add that
the monologue would be protected speech in other contexts, albeit it did not
expound and identify a compelling state interest in putting FCC’s content-based
regulatory action under scrutiny.

The Court in Chavez181[41] elucidated on the distinction between regulation

or restriction of protected speech that is content-based and that which is
content-neutral. A content-based restraint is aimed at the contents or idea of the
expression, whereas a content-neutral restraint intends to regulate the time,
place, and manner of the expression under well-defined standards tailored to
[37]
177 438 U.S. 726.
[38]
178 Supra note 25.
[39]
179 G.R. No. 168338, February 15, 2008, 545 SCRA 441.
[40]
180 “Shit, piss, fuck, tits, etc.”
[41]
181 Supra note 39.
 159
serve a compelling state interest, without restraint on the message of the
expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under
the premises was, in one perspective, permissible restriction. We make this
disposition against the backdrop of the following interplaying factors: First,
the indecent speech was made via television, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak,182[42] easily “reaches every home
where there is a set [and where] [c]hildren will likely be among the avid
viewers of the programs therein shown”; second, the broadcast was aired at the
time of the day when there was a reasonable risk that children might be in the
audience; and third, petitioner uttered his speech on a “G” or “for general
patronage” rated program. Under Sec. 2(A) of Chapter IV of the IRR of the
MTRCB, a show for general patronage is “[s]uitable for all ages,” meaning that
the “material for television x x x in the judgment of the BOARD, does not
contain anything unsuitable for children and minors, and may be viewed
without adult guidance or supervision.” The words petitioner used were, by any
civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioner’s utterances on a general-patronage
rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to

pornography,183[43] false or misleading advertisement,184[44] advocacy of
imminent lawless action, and expression endangering national security. But
this list is not, as some members of the Court would submit, exclusive or carved
in stone. Without going into specifics, it may be stated without fear of
contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the rule
against censorship in the past, this particular case constitutes yet another
exception, another instance of unprotected speech, created by the necessity of
protecting the welfare of our children. As unprotected speech, petitioner ’s
utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since
1978, petitioner asserts that his utterances must present a clear and present
danger of bringing about a substantive evil the State has a right and duty to
prevent and such danger must be grave and imminent.185[45]

Petitioner’s invocation of the clear and present danger doctrine, arguably

the most permissive of speech tests, would not avail him any relief, for the
application of said test is uncalled for under the premises. The doctrine, first
formulated by Justice Holmes, accords protection for utterances so that the
printed or spoken words may not be subject to prior restraint or subsequent
punishment unless its expression creates a clear and present danger of bringing
[42]
182 Supra note 26.
183[43] Gonzales v. Kalaw Katigbak, supra.
184[44] Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III,
G.R. No. 173034, October 9, 2007, 535 SCRA 265.
185 [45]
Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
 160
186[46]
about a substantial evil which the government has the power to prohibit.
Under the doctrine, freedom of speech and of press is susceptible of restriction
when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine
evolved in the context of prosecutions for rebellion and other crimes involving
the overthrow of government.187[47] It was originally designed to determine the
latitude which should be given to speech that espouses anti-government action,
or to have serious and substantial deleterious consequences on the security and
public order of the community.188[48] The clear and present danger rule has been
applied to this jurisdiction.189[49] As a standard of limitation on free speech and
press, however, the clear and present danger test is not a magic incantation that
wipes out all problems and does away with analysis and judgment in the testing
of the legitimacy of claims to free speech and which compels a court to release
a defendant from liability the moment the doctrine is invoked, absent proof of
imminent catastrophic disaster.190[50] As we observed in Eastern Broadcasting
Corporation, the clear and present danger test “does not lend itself to a
simplistic and all embracing interpretation applicable to all utterances in all
forums.”191[51]

To be sure, the clear and present danger doctrine is not the only test which
has been applied by the courts. Generally, said doctrine is applied to cases
involving the overthrow of the government and even other evils which do not
clearly undermine national security. Since not all evils can be measured in
terms of “proximity and degree” the Court, however, in several cases —Ayer
Productions v. Capulong192[52] and Gonzales v. COMELEC,193[53] applied the
balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales
v. COMELEC, elucidated in his Separate Opinion 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 the speech and assembly in
terms of the probability of realization of a specific danger is not susceptible
even of impressionistic calculation,”194[54] then the “balancing of interests” test
can be applied.

The Court explained also in Gonzales v. COMELEC the “balancing of

interests” test:

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. x
186[46] 16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249 U.S. 47.
187[47] Bernas, supra note 27, at 219-220.
188[48] Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835.
189[49] ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811; Adiong v.
COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.
190[50] Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1.
191[51] Supra note 25, at 635.
192[52] No. L-82380, April 29, 1988, 160 SCRA 861.
[53]
193 Supra note 48.
[54]
194 Supra at 898.
 161
x x We must, therefore, undertake the “delicate and difficult task
x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation
of the free enjoyment of rights x x x.

In enunciating 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. 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.

xxxx

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,” a wide range of factors are necessarily relevant in
ascertaining the point or line of equilibrium. Among these are (a)
the social value 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) 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.195[55]

This balancing of interest test, to borrow from Professor Kauper, 196[56] rests
on the theory that it is the court’s function in a case before it when it finds
public interests served by legislation, on the one hand, and the free expression
clause affected by it, on the other, to balance one against the other and arrive at
a judgment where the greater weight shall be placed. If, on balance, it appears
that the public interest served by restrictive legislation is of such nature that it
outweighs the abridgment of freedom, then the court will find the legislation
valid. In short, the balance-of-interests theory rests on the basis that
195[55] Supra at 899-900.
196[56] Kauper, CIVIL LIBERTIES AND THE CONSTITUTION 113 (1966); cited in Gonzales v. COMELEC, supra
note 48; also cited in J.G. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY (2003).
 162
constitutional freedoms are not absolute, not even those stated in the free
speech and expression clause, and that they may be abridged to some extent to
serve appropriate and important interests.197[57] To the mind of the Court, the
balancing of interest doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a
three (3)-month suspension was slapped on him for breach of MTRCB rules. In
this setting, the assertion by petitioner of his enjoyment of his freedom of
speech is ranged against the duty of the government to protect and promote the
development and welfare of the youth.

After a careful examination of the factual milieu and the arguments raised
by petitioner in support of his claim to free speech, the Court rules that the
government’s interest to protect and promote the interests and welfare of the
children adequately buttresses the reasonable curtailment and valid restraint on
petitioner’s prayer to continue as program host of Ang Dating Daan during the
suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens
of a State is the freedom of speech or expression, for without the enjoyment of
such right, a free, stable, effective, and progressive democratic state would be
difficult to attain. Arrayed against the freedom of speech is the right of the
youth to their moral, spiritual, intellectual, and social being which the State is
constitutionally tasked to promote and protect. Moreover, the State is also
mandated to recognize and support the vital role of the youth in nation building
as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and

responsibility on the State to provide protection to the youth against illegal or
improper activities which may prejudice their general well-being. The Article
on youth, approved on second reading by the Constitutional Commission,
explained that the State shall “extend social protection to minors against all
forms of neglect, cruelty, exploitation, immorality, and practices which may
foster racial, religious or other forms of discrimination.”198[58]

Indisputably, the State has a compelling interest in extending social

protection to minors against all forms of neglect, exploitation, and immorality
which may pollute innocent minds. It has a compelling interest in helping
parents, through regulatory mechanisms, protect their children’s minds from
exposure to undesirable materials and corrupting experiences. The
Constitution, no less, in fact enjoins the State, as earlier indicated, to promote
and protect the physical, moral, spiritual, intellectual, and social well-being of
the youth to better prepare them fulfill their role in the field of nation-
building.199[59] In the same way, the State is mandated to support parents in the

[57]
197 Id.
[58]
198 Bernas, supra note 27, at 81.
[59]
199 CONSTITUTION, Art. II, Sec. 13.
 163
rearing of the youth for civic efficiency and the development of moral
character.200[60]

Petitioner’s offensive and obscene language uttered in a television

broadcast, without doubt, was easily accessible to the children. His statements
could have exposed children to a language that is unacceptable in everyday use.
As such, the welfare of children and the State’s mandate to protect and care for
them, as parens patriae,201[61] constitute a substantial and compelling
government interest in regulating petitioner’s utterances in TV broadcast as
provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to

protect the children who, because of age or interest capacity, are susceptible of
being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those

too young to read. Although Cohen’s written message, [“Fuck the
Draft”], might have been incomprehensible to a first grader,
Pacifica’s broadcast could have enlarged a child’s vocabulary in an
instant. Other forms of offensive expression may be withheld from
the young without restricting the expression at its source.
Bookstores and motion picture theaters, for example, may be
prohibited from making indecent material available to children. We
held in Ginsberg v. New York that the government’s interest in the
“well-being of its youth” and in supporting “parents’ claim to
authority in their own household” justified the regulation of
otherwise protected expression. The ease with which children may
obtain access to broadcast material, coupled with the concerns
recognized in Ginsberg, amply justify special treatment of indecent
broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the

State to attend to the welfare of the young:

x x x It is the consensus of this Court that where television is

concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their
way, television reaches every home where there is a set. Children
then will likely will be among the avid viewers of the programs
therein shown. As was observed by Circuit Court of Appeals Judge
Jerome Frank, it is hardly the concern of the law to deal with the
sexual fantasies of the adult population. It cannot be denied though
that the State as parens patriae is called upon to manifest an attitude
of caring for the welfare of the young.202[62]

[60]
200 Id., id., Sec. 12.
[61]
201 Id.
[62]
202 Supra note 26, at 729.
 164
The compelling need to protect the young impels us to sustain the
regulatory action MTRCB took in the narrow confines of the case. To reiterate,
FCC justified the restraint on the TV broadcast grounded on the following
considerations: (1) the use of television with its unique accessibility to children,
as a medium of broadcast of a patently offensive speech; (2) the time of
broadcast; and (3) the “G” rating of the Ang Dating Daan program. And in
agreeing with MTRCB, the court takes stock of and cites with approval the
following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of

our holding. This case does not involve a two-way radio
conversation between a cab driver and a dispatcher, or a telecast of
an Elizabethan comedy. We have not decided that an occasional
expletive in either setting would justify any sanction. x x x The
[FFC’s] decision rested entirely on a nuisance rationale under which
context is all important. The concept requires consideration of a host
of variables. The time of day was emphasized by the [FFC]. The
content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a
‘nuisance may be merely a right thing in the wrong place, like a pig
in the parlor instead of the barnyard.’ We simply hold that when the
[FCC] finds that a pig has entered the parlor, the exercise of its
regulatory power does not depend on proof that the pig is obscene.
(Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered

on prime-time television are blatantly indecent if not outright obscene. It is the
kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB
of statutory disciplinary powers. It is the kind of speech that the State has the
inherent prerogative, nay duty, to regulate and prevent should such action
served and further compelling state interests. One who utters indecent,
insulting, or offensive words on television when unsuspecting children are in
the audience is, in the graphic language of FCC, a “pig in the parlor.” Public
interest would be served if the “pig” is reasonably restrained or even removed
from the “parlor.”

Ergo, petitioner’ s offensive and indecent language can be subjected to

prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior

restraint or subsequent punishment that, however, includes prior restraint, albeit
indirectly.

After a review of the facts, the Court finds that what MTRCB
imposed on petitioner is an administrative sanction or subsequent
punishment for his offensive and obscene language in Ang Dating Daan.
 165
To clarify, statutes imposing prior restraints on speech are generally illegal
and presumed unconstitutional breaches of the freedom of speech. The
exceptions to prior restraint are movies, television, and radio broadcast
censorship in view of its access to numerous people, including the young who
must be insulated from the prejudicial effects of unprotected speech. PD 1986
was passed creating the Board of Review for Motion Pictures and Television
(now MTRCB) and which requires prior permit or license before showing a
motion picture or broadcasting a TV program. The Board can classify movies
and television programs and can cancel permits for exhibition of films or
television broadcast.

The power of MTRCB to regulate and even impose some prior restraint
on radio and television shows, even religious programs, was upheld in Iglesia
Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S.
Puno, the Court wrote:

We thus reject petitioner’s postulate that its religious program

is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the bosom
of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which
the State is duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public welfare.
xxx

xxxx

While the thesis has a lot to commend itself, we are not ready
to hold that [PD 1986] is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our courts.
As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

“The use of the mails by private persons is in the nature

of a privilege which can be regulated in order to avoid its
abuse. Persons possess no absolute right to put into the mail
anything they please, regardless of its character.”203[63]

Bernas adds:

Under the decree a movie classification board is made the

arbiter of what movies and television programs or parts of either are
fit for public consumption. It decides what movies are “immoral,
indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people,” and what
[63]
203 G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552.
 166
“tend to incite subversion, insurrection, rebellion or sedition,” or
“tend to undermine the faith and confidence of the people in their
government and/or duly constituted authorities,” etc. Moreover, its
decisions are executory unless stopped by a court.204[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,205[65] it was

held that the power of review and prior approval of MTRCB extends to all
television programs and is valid despite the freedom of speech guaranteed by
the Constitution. Thus, all broadcast networks are regulated by the MTRCB
since they are required to get a permit before they air their television programs.
Consequently, their right to enjoy their freedom of speech is subject to that
requirement. As lucidly explained by Justice Dante O. Tinga, government
regulations through the MTRCB became “a necessary evil” with the
government taking the role of assigning bandwidth to individual broadcasters.
The stations explicitly agreed to this regulatory scheme; otherwise, chaos would
result in the television broadcast industry as competing broadcasters will
interfere or co-opt each other’s signals. In this scheme, station owners and
broadcasters in effect waived their right to the full enjoyment of their right to
freedom of speech in radio and television programs and impliedly agreed that
said right may be subject to prior restraint—denial of permit or subsequent
punishment, like suspension or cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on
the right of petitioner to continue with the broadcast of Ang Dating Daan
as a permit was already issued to him by MTRCB for such broadcast.
Rather, the suspension is in the form of permissible administrative sanction
or subsequent punishment for the offensive and obscene remarks he
uttered on the evening of August 10, 2004 in his television program, Ang
Dating Daan. It is a sanction that the MTRCB may validly impose under its
charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to
Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved
private party under the provisions on libel or tort, if applicable. As FCC
teaches, the imposition of sanctions on broadcasters who indulge in profane or
indecent broadcasting does not constitute forbidden censorship. Lest it be
overlooked, the sanction imposed is not per se for petitioner’s exercise of his
freedom of speech via television, but for the indecent contents of his utterances
in a “G” rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full
enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as
television station owners, program producers, and hosts have impliedly
accepted the power of MTRCB to regulate the broadcast industry.

Neither can petitioner’s virtual inability to speak in his program during the
period of suspension be plausibly treated as prior restraint on future speech.
[64]
204 Supra note 56, at 235.
[65]
205 G.R. No. 155282, January 17, 2005, 448 SCRA 575.
 167
For viewed in its proper perspective, the suspension is in the nature of an
intermediate penalty for uttering an unprotected form of speech. It is definitely
a lesser punishment than the permissible cancellation of exhibition or broadcast
permit or license. In fine, the suspension meted was simply part of the duties of
the MTRCB in the enforcement and administration of the law which it is tasked
to implement. Viewed in its proper context, the suspension sought to penalize
past speech made on prime-time “G” rated TV program; it does not bar future
speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on
speech. While not on all fours, the Court, in MTRCB,206[66] sustained the power
of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-
taped TV episode without Board authorization in violation of Sec. 7 of PD
1986.

Any simplistic suggestion, however, that the MTRCB would be crossing

the limits of its authority were it to regulate and even restrain the prime-time
television broadcast of indecent or obscene speech in a “G” rated program is not
acceptable. As made clear in Eastern Broadcasting Corporation, “the freedom
of television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.” The MTRCB, as a
regulatory agency, must have the wherewithal to enforce its mandate, which
would not be effective if its punitive actions would be limited to mere fines.
Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must
be met with appropriate and proportional disciplinary action. The suspension of
a violating television program would be a sufficient punishment and serve as a
deterrent for those responsible. The prevention of the broadcast of petitioner’s
television program is justified, and does not constitute prohibited prior restraint.
It behooves the Court to respond to the needs of the changing times, and craft
jurisprudence to reflect these times.

Finally, petitioner argues that there has been undue delegation of

legislative power, as PD 1986 does not provide for the range of imposable
penalties that may be applied with respect to violations of the provisions of the
law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of

legislative power in the following wise:

It is a fundamental principle flowing from the doctrine of

separation of powers that Congress may not delegate its legislative
power to the two other branches of the government, subject to the
exception that local governments may over local affairs participate
in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is
[66]
206 Supra note 65.
 168
the completeness of the statute in all its term and provisions when it
leaves the hands of the legislature. To determine whether or not
there is an undue delegation of legislative power, the inquiry must
be directed to the scope and definiteness of the measure enacted.
The legislature does not abdicate its functions when it describes
what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the only way
in which the legislative process can go forward. A distinction has
rightfully been made between delegation of power to make laws
which necessarily involves a discretion as to what it shall be, which
constitutionally may not be done, and delegation of authority or
discretion as to its execution to be exercised under and in pursuance
of the law, to which no valid objection can be made. The
Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a

standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel.
A standard thus defines legislative policy, marks its limits, maps out
its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is
to be effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative office
designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations.207[67]

Based on the foregoing pronouncements and analyzing the law in

question, petitioner’ s protestation about undue delegation of legislative
power for the sole reason that PD 1986 does not provide for a range of
penalties for violation of the law is untenable. His thesis is that MTRCB,
in promulgating the IRR of PD 1986, prescribing a schedule of penalties
for violation of the provisions of the decree, went beyond the terms of the
law.

Petitioner’s posture is flawed by the erroneous assumptions holding it

together, the first assumption being that PD 1986 does not prescribe the
imposition of, or authorize the MTRCB to impose, penalties for violators of PD
1986. As earlier indicated, however, the MTRCB, by express and direct
conferment of power and functions, is charged with supervising and regulating,
granting, denying, or canceling permits for the exhibition and/or television
broadcast of all motion pictures, television programs, and publicity materials to
the end that no such objectionable pictures, programs, and materials shall be
exhibited and/or broadcast by television. Complementing this provision is Sec.
3(k) of the decree authorizing the MTRCB “to exercise such powers and
functions as may be necessary or incidental to the attainment of the purpose and
[67]
207 No. L-32096, October 24, 1970, 35 SCRA 481, 496-497.
 169
objectives of [the law].” As earlier explained, the investiture of supervisory,
regulatory, and disciplinary power would surely be a meaningless grant if it did
not carry with it the power to penalize the supervised or the regulated as may be
proportionate to the offense committed, charged, and proved. As the Court said
in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty

enjoined, every particular power necessary for the exercise of the
one or the performance of the other is also conferred. x x x [W]hen
the statute does not specify the particular method to be followed or
used by a government agency in the exercise of the power vested in
it by law, said agency has the authority to adopt any reasonable
method to carry out its function.208[68]

Given the foregoing perspective, it stands to reason that the power of the
MTRCB to regulate and supervise the exhibition of TV programs carries with it
or necessarily implies the authority to take effective punitive action for
violation of the law sought to be enforced. And would it not be logical too to
say that the power to deny or cancel a permit for the exhibition of a TV
program or broadcast necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec.

3(a) which, for reference, provides that agency with the power “[to] promulgate
such rules and regulations as are necessary or proper for the implementation of
this Act, and the accomplishment of its purposes and objectives x x x. ” And
Chapter XIII, Sec. 1 of the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE

SANCTIONS.––Without prejudice to the immediate filing of the
appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986
and its Implementing Rules and Regulations governing motion
pictures, television programs, and related promotional materials
shall be penalized with suspension or cancellation of permits
and/or licenses issued by the Board and/or with the imposition of
fines and other administrative penalty/penalties. The Board
recognizes the existing Table of Administrative Penalties attached
without prejudice to the power of the Board to amend it when the
need arises. In the meantime the existing revised Table of
Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically

implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what
petitioner implies, the IRR does not expand the mandate of the MTRCB under
the law or partake of the nature of an unauthorized administrative legislation.

208 [68]
Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936); Provident Tree Farms, Inc. v. Batario,
Jr., G.R. No. 92285, March 28, 1994, 231 SCRA 463.
 170
The MTRCB cannot shirk its responsibility to regulate the public airwaves and
employ such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB,
along with the standards to be applied to determine whether there have been
statutory breaches. The MTRCB may evaluate motion pictures, television
programs, and publicity materials “applying contemporary Filipino cultural
values as standard,” and, from there, determine whether these audio and video
materials “are objectionable for being immoral, indecent, contrary to law and/or
good customs, [etc.] x x x” and apply the sanctions it deems proper. The
lawmaking body cannot possibly provide for all the details in the enforcement
of a particular statute.209[69] The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers
and is an exception to the non-delegation of legislative powers. 210[70]
Administrative regulations or “subordinate legislation” calculated to promote
the public interest are necessary because of “the growing complexity of modern
life, the multiplication of the subjects of governmental regulations, and the
increased difficulty of administering the law.”211[71] Allowing the MTRCB some
reasonable elbow-room in its operations and, in the exercise of its statutory
disciplinary functions, according it ample latitude in fixing, by way of an
appropriate issuance, administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating circumstances, as the
case may be, would be consistent with its mandate to effectively and efficiently
regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose
sanctions for violations of PD 1986, its decision to suspend petitioner must
be modified, for nowhere in that issuance, particularly the power-defining
Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective
January 1, 1999 is the Board empowered to suspend the program host or
even to prevent certain people from appearing in television programs. The
MTRCB, to be sure, may prohibit the broadcast of such television programs or
cancel permits for exhibition, but it may not suspend television personalities,
for such would be beyond its jurisdiction. The MTRCB cannot extend its
exercise of regulation beyond what the law provides. Only persons, offenses,
and penalties clearly falling clearly within the letter and spirit of PD 1986 will
be considered to be within the decree’s penal or disciplinary operation. And
when it exists, the reasonable doubt must be resolved in favor of the person
charged with violating the statute and for whom the penalty is sought. Thus, the
MTRCB’s decision in Administrative Case No. 01-04 dated September 27, 2004
and the subsequent order issued pursuant to said decision must be modified.
The suspension should cover only the television program on which
petitioner appeared and uttered the offensive and obscene language, which
sanction is what the law and the facts obtaining call for.

[69]
209 People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458.
[70]
210 Id.
[71]
211 Id.
 171
In ending, what petitioner obviously advocates is an unrestricted speech
paradigm in which absolute permissiveness is the norm. Petitioner’s flawed
belief that he may simply utter gutter profanity on television without adverse
consequences, under the guise of free speech, does not lend itself to acceptance
in this jurisdiction. We repeat: freedoms of speech and expression are not
absolute freedoms. To say “any act that restrains speech should be greeted with
furrowed brows” is not to say that any act that restrains or regulates speech or
expression is per se invalid. This only recognizes the importance of freedoms
of speech and expression, and indicates the necessity to carefully scrutinize acts
that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04

dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION
of limiting the suspension to the program Ang Dating Daan. As thus modified,
the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is

hereby rendered, imposing a penalty of THREE (3) MONTHS
SUSPENSION on the television program, Ang Dating Daan,
subject of the instant petition.

DISSENTING OPINION, Justice Antonio Carpio.

I dissent because the three-month suspension of petitioner’s TV program

Ang Dating Daan constitutes an unconstitutional prior restraint on
freedom of expression. The suspension prevents petitioner from even
reciting the Lord’ s Prayer, or even saying “hello” to viewers, in his TV
program. The suspension bars the public airing of petitioner’s TV
program regardless of whatever subject matter petitioner, or anyone else,
wishes to discuss in petitioner’s TV program.

This is like suspending the publication of the Philippine Daily

Inquirer for three months if its editorial describes a private person as
“masahol pa sa putang babae.” This is also similar to suspending for
three months the column of a newspaper columnist for using the expletive
“putang ina mo” in his column. Such suspension is the censorship that the
Constitution outlaws when it states that “[n]o law shall be passed
abridging the freedom of speech, of expression, or of the press x x x.”212[1]

The remedy of any aggrieved person is to file a libel or tort case after the
utterance or publication of such cusswords. Our libels laws punish with
fine, imprisonment or damages libelous language already uttered or
published.213[2] Our tort laws also allow recovery of damages for tortious

212[1]
Section 4, Article III, Constitution.
213[2]
Article 353-359, Revised Penal Code; Article 33, Civil Code.
 172
214[3]
speech already uttered or published. However, both our libel and tort
laws never impose a gag order on future expression because that will
constitute prior restraint or censorship. Thus, our libel and tort laws do
not allow the filing of a suit to enjoin or punish an expression that has yet
to be uttered or written.

Indeed, there can never be a prior restraint on future expression, whether

for fear of possible libelous utterance or publication, or as a punishment
for past libelous utterance or publication. Otherwise, many of the radio
and TV political programs will have to be banned for the frequent use of
cusswords and other libelous language. Even politicians will have to be
barred from addressing political rallies, or the rallies themselves will have
to be banned, because politicians often use cusswords and other
profanities during political rallies.

In the present case, the three-month preventive suspension of petitioner’s

TV program bars petitioner from talking about the weather, or from talking
about the birds and the bees, or even from talking about nothingness, in his
TV program. The public airing of the entire TV program, regardless of its
content, is totally suppressed for three months. The Government has no
power under the Constitution to so brazenly suppress freedom of
expression. This Court should never give its imprimatur to such a blatant
violation of a fundamental constitutional right, which has been described
as the one basic right that makes all other civil, human and political rights
possible.

Prior Restraint on Expression

The well-settled rule is there can be no prior restraint on expression. This

rule emanates from the constitutional command that “[n]o law shall be
passed abridging the freedom of speech, of expression, or of the press x x
x.” The history of freedom of expression has been a constant struggle
against the censor’s prior restraint on expression. The leading American
case of Near v. Minnesota215[4] teaches us that the primordial purpose of
the Free Expression Clause is to prevent prior restraint on expression.

This well-settled rule, however, is subject to exceptions narrowly carved

out by courts over time because of necessity. In this jurisdiction, we
recognize only four exceptions, namely: pornography,216[5] false or
misleading advertisement,217[6] advocacy of imminent lawless action,218
214[3]
Article 26, Civil Code.

215[4]
283 U.S. 697 (1931).
216[5]
Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985).
217[6]
Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, 9 October 2007,
535 SCRA 265.
218[7]
 173
[7] 219[8]
and danger to national security. Only in these instances may
expression be subject to prior restraint. All other expression is not
subject to prior restraint.

Although pornography, false or misleading advertisement, advocacy of

imminent lawless action, and expression endangering national security
may be subject to prior restraint, such prior restraint must hurdle a high
barrier. First, such prior restraint is strongly presumed as
unconstitutional. Second, the government bears a heavy burden of
justifying such prior restraint.220[9]

The test to determine the constitutionality of prior restraint on

pornography, advocacy of imminent lawless action, and expression
endangering national security is the clear and present danger test. The
expression subject to prior restraint must present a clear and present
danger of bringing about a substantive evil the State has a right and duty to
prevent, and such danger must be grave and imminent.221[10]

The power of Congress to impose prior restraint on false or misleading

advertisements emanates from the constitutional provision that the
“advertising industry is impressed with public interest, and shall be
regulated by law for the protection of consumers and the promotion of the
general welfare.”222[11]

Prior restraint on expression may be either content-based or content-

neutral. Content-based prior restraint is aimed at suppressing the message
or idea contained in the expression. Courts subject content-based restraint
to strict scrutiny. Content-neutral restraint on expression is restraint that
regulates the time, place or manner of expression in public places without
any restraint on the content of the expression. Courts subject content-
neutral restraint to intermediate scrutiny.

Subsequent Punishment of Expression

The rule is also well-settled that expression cannot be subject to

subsequent punishment. This rule also emanates from the constitutional
command that “[n]o law shall be passed abridging the freedom of speech,
of expression, or of the press x x x.” However, courts again have carved
out narrow exceptions to this rule out of necessity.

Eastern Broadcasting Corporation v. Dans, No. 222 Phil. 151 (1985).

219[8]
Id.
220[9]
Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529; New York Times v.
United States, 403 U.S. 713 (1971).
221[10]
Bayan v. Ermita, G.R. Nos. 169838, 169848 and 169881, 25 April 2006, 488 SCRA 226.
222[11]
Section 11(2), Article XVI, Constitution.
 174
The exceptions start with the four types of expression that may be subject
to prior restraint. If a certain expression is subject to prior restraint, its
utterance or publication in violation of the lawful restraint naturally
subjects the person responsible to subsequent punishment. Thus, acts of
pornography,223[12] false or misleading advertisement,224[13] advocacy of
imminent lawless action,225[14] and endangering national security,226[15] are
all punishable under the law.

Two other exceptions are defamation,227[16] which includes libel and

slander, and tortious speech.228[17] Defamatory and tortious speech, per se,
are not subject to prior restraint because by definition they do not
constitute a clear and present danger to the State that is grave and
imminent. Once defamatory or tortuous speech rises to the level of
advocacy of imminent lawless action, then it may be subject to prior
restraint because it is seditious229[18] but not because it is defamatory or
tortious. Defamation and tortious conduct, however, may be subject to
subsequent punishment, civilly or criminally.

Fighting words are not subject to subsequent punishment unless they are
defamatory or tortious. Fighting words refer to profane or vulgar words
that are likely to provoke a violent response from an audience. Profane or
vulgar words like “Fuck the draft,” when not directed at any particular
person, ethnic or religious group, are not subject to subsequent
punishment.230[19] As aptly stated, “one man’s vulgarity may be another
man’s lyric.”231[20]

If profane or vulgar language like “Fuck the draft” is not

subject to subsequent punishment, then with more reason it cannot be
subject to prior restraint. Without a law punishing the actual utterance
or publication of an expression, an expression cannot be subject to prior
restraint because such expression is not unlawful or illegal.

223[12]
Article 201, Revised Penal Code.
224[13]
Section 6(a), Milk Code.
225[14]
Article 142, Revised Penal Code.
226[15]
Article 138, Revised Penal Code.
227[16]
See note 2.
228[17]
See note 3.
229[18]
Articles 138 and 142, Revised Penal Code.

230[19]
Cohen v. California, 403 U.S. 15 (1971).
231[20]
Id.
 175
Prior restraint is more deleterious to freedom of expression than
subsequent punishment. Although subsequent punishment also deters
expression, still the ideas are disseminated to the public. Prior restraint
prevents even the dissemination of ideas to the public. Thus, the three-
month suspension of petitioner’s TV program, being a prior restraint on
expression, has far graver ramifications than any possible subsequent
punishment of petitioner.

Three-Month Suspension is a Prohibited Prior Restraint

The three-month suspension of petitioner’s TV program is indisputably a

prior restraint on expression. During the three-month suspension,
petitioner cannot utter a single word in his TV program because the
program is totally suppressed. A prior restraint may be justified only if the
expression falls under any of the four types of expression that may be
subject to prior restraint, namely, pornography, false or misleading
advertisement, advocacy of imminent lawless action, and danger to
national security.

Obviously, what petitioner uttered does not fall under any of the four
types of expression that may be subject to prior restraint. What
respondents assail is the following ranting of petitioner:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae

o di ba. Yung putang babae ang gumagana lang doon yung
ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! O, masahol pa sa putang babae yan. Sabi ng lola ko
masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito…

No matter how offensive, profane or vulgar petitioner’s words may be,

they do not constitute pornography, false or misleading advertisement,
advocacy of imminent lawless action, or danger to national security. Thus,
petitioner’s offensive, profane or vulgar language cannot be subject to
prior restraint but may be subject to subsequent punishment if defamatory
or tortious.

Any prior restraint is strongly presumed to be unconstitutional and the

government bears a heavy burden of justifying such prior restraint. 232[21]
Such prior restraint must pass the clear and present danger test. The
majority opinion, which imposes a prior restraint on expression, is
totally bereft of any discussion that petitioner’s ranting poses a clear

232[21]
See note 9.
 176
and present danger to the State that is grave and imminent. The
respondents have not presented any credible justification to overcome the
strong presumption of unconstitutionality accorded to the three-month
suspension order.

The three-month suspension cannot be passed off merely as a preventive

suspension that does not partake of a penalty. The actual and real effect of
the three-month suspension is a prior restraint on expression in violation of
a fundamental constitutional right. Even Congress cannot validly pass a
law imposing a three-month preventive suspension on freedom of
expression for offensive or vulgar language uttered in the past. Congress
may punish such offensive or vulgar language, after their utterance, with
damages, fine or imprisonment but Congress has no power to suspend or
suppress the people’s right to speak freely because of such past utterances.

In short, Congress may pass a law punishing defamation or tortious

speech but the punishment cannot be the suspension or suppression of the
constitutional right to freedom of expression. Otherwise, such law
would be “ abridging the freedom of speech, of expression, or of the
press.” If Congress cannot pass such a law, neither can respondent
MTRCB promulgate a rule or a decision suspending for three months
petitioner’s constitutional right to freedom of expression. And of course,
neither can this Court give its stamp of imprimatur to such an
unconstitutional MTRCB rule or decision.

Read:

1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717

2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its validity)
3. Near vs. Minnesota, 283 U.S. 697
4. Times Film vs. City of Chicago, 365 U.S. 43
5. Freedman vs. Maryland, 380 U.S. 51

8. Clear and present danger and dangerous tendency rule (whether the words
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 the
State has the right to prevent)

7-a. Dangerous tendency rule (If the words uttered create a dangerous
tendency which the State has the right to prevent, then such words are
punishable)
Read:

1. Cabansag vs. Fernandez, 102 Phil. 152

2. Read again the Reyes and Ruiz cases, supra
3. Read again Zaldivar vs. Sandiganbayan, GR No. 7960-707&
Zaldivar vs. Gonzales, GR No. 80578, February 1, 1989
 177

8. The balancing-of-interest test (When a particular conduct is regulated in

the interest of the 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 2 conflicting interests demand greater protection
under the circumstances presented.)

Read:

AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET

AL., 160 SCRA 861

Read also:

1. Lagunzad vs. Gonzales, 92 SCRA 476

2. Gitlow vs. New York, 268 U.S. 652, including the criticism on this
test by Justice Holmes
3. See also Zaldivar case above

CHAPTER VI - THE NON-ESTABLISHMENT

OF RELIGION CLAUSE

Section 5. No law shall be made respecting

the establishment of religion, or prohibiting
the free exercise thereof. The free exercise
and enjoyment of religious profession and
worship, without discrimination or
preference shall forever be allowed. No
religious test shall be required for the
exercise of civil or political rights.

ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1

(Resolution of the Motion for Reconsideration), 408
SCRA 1

Puno, J.

Respondent is the Court interpreter of RTC Branch 253, Las Pinas

City. Complainant requested for an investigation of respondent for living
with a man not her husband while she was still legally married and having
borne a child within this live-in arrangement. Estrada believes that
Escritor is committing a grossly immoral act which tarnishes the image of
the judiciary, thus she should not be allowed to remain employed therein
as it might appear that the court condones her act.
 178
Respondent admitted she started living with Luciano Quilapio, Jr.
more than 20 years ago when her husband was still alive but living with
another woman. She likewise admitted having a son with Quilapio but
denies any liability for alleged grossly immoral conduct because:

 She is a member of the Jehovah’s Witnesses and the Watch Tower Society;
 That the conjugal arrangement was in conformity with their religious
beliefs;
 That the conjugal arrangement with Quilapio has the approval of her
congregation.

Escritor likewise claimed that she had executed a “DECLARATION OF

PLEDGING FAITHFULNESS” in accordance with her religion which
allows members of the Jehovah’s witnesses who have been abandoned by
their spouses to enter into marital relations. The Declaration thus makes
the resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed.

HELD:

Escritor’s conjugal arrangement cannot be penalized as she has made

out a case for exemption from the law based on her fundamental right to
religion. The Court recognizes that state interests must be upheld in order
that freedoms---including religious freedom---may be enjoyed. IN THE
AREA OF RELIGIOUS EXERCISE AS A PREFERRED FREEDOM,
HOWEVER, MAN STANDS ACCOUNTABLE TO AN AUTHORITY
HIGHER THAN THE STATE, and so the stateinterest sought to be upheld
must be so compelling that its violation will erode the very fabric of the
state that will also protect the freedom. In the absence of a showing that
the state interest exists, man must be allowed to subscribe to the Infinite.

Escritor was therefore held not administratively liable for grossly

immoral conduct.

FREEDOM OF RELIGION

-any specific system of belief, worship or conduct, often involving a code of

ethics and philosophy.
-A profession of faith to an active power that binds and elevates man to his
Creator.

The existence of a Divine being is not necessarily inherent in religion; the

Buddhists espouses a way of life without reference to an omnipotent God.

“ Strong fences make good neighbors” . The idea is to delineate the

boundaries between two institutions and prevent encroachments by one against
the other.
 179

The doctrine cuts both ways. It is not only the State that is prohibited from
interfering in purely ecclesiastical affairs; the Church is likewise barred from
meddling in purely secular matters.

NON-STABLISHMENT CLAUSE:

It simply means “that the State cannot set up a church; nor pass laws
which aids one religion; aid all religion, or prefer one religion over another nor
force nor influence a person to go to or remain away from church against his
will; or force him to profess a belief or disbelief; that the State cannot openly or
secretly participate in the affairs of any religious organization or group and vice
versa” (EVERSON VS. BOARD OF EDUCATION, 330 US 1)

This clause seeks to protect:

Voluntarism---must come into existence through the voluntary support of its

members;
Insulation from political process—growth through voluntary support of its
members will not take place if there is intervention from the State.

There will be no violation of the non-establishment clause if:

the statute has a secular legislative purpose;its principal or primary effect is one
that neither advances nor inhibits religion; and it does not foster an excessive
government entanglement with religion. (LEMON VS. KURTZMAN, 403 US
602)

The government is neutral and while protecting all, it prefers none and
disparages none. “All” here applies both to the believer and the non-believer.
FREEDOM OF RELIGION INCLUDES FREEDOM FROM RELIGION; THE
RIGHT TO WORHIP INCLUDES THE RIGHT NOT TO WORSHIP.

SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)

It is unconstitutional for a school to require the students to recite a prayer

composed by the Board of Regents at the starts of the day’s class. “It is no part
of the business of government to compose official prayers for any group of the
American People.”

SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203

It is unconstitutional for a law to require that at least 10 verses from the

Holy Bible be read daily without comment because the same constitute a
religious exercise which violates the non-establishment clause.

BOARD OF EDUCATION VS. ALLEN, 392 US 236

 180
A law requiring the Board of Education to lend textbooks free of charge to
all students from grades 7-12 of parochial school. This is constitutional since it
is not the parochial school which gets the benefits but the parents.

EVERSON VS. BOARD OF EDUCATION, 330 US 1

The law authorizing reimbursement of transportation expenses of school

children going to and from parochial schools is not violative of the non-
establishment clause because it will be the parents who get benefits, not the
parochial school.

RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO

ASPECTS:

a. Freedom to believe; and

b. Freedom to act.

IN the first, such freedom is absolute. He may indulge in his own theories
about life and death; worship any god he chooses, or none at all. He may not be
punished even if he cannot prove what he believes.

In the second, if the individual externalizes what he believes, his freedom

to do so becomes subject to the authority of the State. This is so because
religious freedom can be exercised only with due regard to the rights of others.
Example: “Go forth and multiply---cannot marry several times just to comply.

PEOPLE VS. LAGMAN & ZOSA, 38 O.G. 1676

Avoiding military duties based on religious grounds is not allowed in the

Philippines because of Section 4, Article II—The state is the protector of the
people and it is the prime duty of the people to defend the State and in the
fulfillment of this duty, the State may call all citizens to render military or civil
service.

IN RE SUMMERS, 325 US 561

The act of the Illinois Supreme Court denying admission to the bar
because of his refusal to take in good faith an oath to support the Constitution
of the State of Illinois which requires mandatory service in the military in times
of war was reversed by the US Supreme Court stating that this constitutes a
violation of the 1st Amendment which guarantees religious freedom.

1. Religious freedom in relation to impairment of contracts and the

right to join associations,36 SCRA 445

2. Read:
 181
1. Aglipay vs. Ruiz, 64 Phil. 201
2. Garces vs. Estenzo, 104 SCRA 510
3. INK vs. Gironella, 106 SCRA 1
4. American Bible Society vs. City of Manila, 101 Phil. 398
5. Gerona vs. Sec. of Education, 106 Phil. 11
6. Pamil vs. Teleron, November 20, 1978
7. Victoriano vs. Elizalde Rope, 59 SCRA 54
7. German vs. Barangan, 135 SCRA 514

ROEL EBRALINAG, ET AL VS. THE DIVISION

SUPERINTENDENT OF SCHOOLS OF CEBU,
March 1, 1993

Grino--Aquino, J.

Facts:
------

1. The petitioners are high school and grade schools students enrolled in
the different public schools of the Province of Cebu and who belong to the
religious group known as the Jehovah's Witnesses;

2. That they rrefused to take part in the flag ceremony which includes
playing by a band or singing the Philippine National Anthem, saluting the
Philippine Flag and reciting the patriotic pledge because they considered
the flag as an image and they should not worship it except GOD;

3. That because of their refusal to perform the foregoing acts as required

by RA 1265 of July 11, 1955 and by Department Order No. 8 dated July
21, 1955 of the DECS making the flag ceremony compulsory in all
educational institutions, they were expelled by the respondent school
authorities.

Hence this petition.

Issue:
------

May the petitioners be expelled for refusing to salute the flag, recite
the patriotic pledge or sing the national anthem in order to follow their
religious beliefs?

Held:
 182
The same issue was raised in Gerona vs. Secretary of Education,
106 Phil. 2 (1959) and Balbuna vs. Secretary of Education, 110 Phil. 150
(1960) where the SC held that:

The flag is not an image but a symbol of the Republic of the

Philippines, an emblem of national sovereignty, of national unity and
cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Under a system of complete separation of church
and state in the government, the flag is utterly devoid of any religious
significance.

The law, RA 1265 was likewise incorporated in Executive Order No.

297, September 21, 1988.

Our task is extremely difficult for the 30-year old decision of this
Court in GERONA upholding the salute law and approving the expulsion
of students who refuse to obey it, is not lightly to be trifled with.

The idea that one may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge, during flag ceremony on
pain of being dismissed from one's job or be expelled in school, IS
ALIEN TO THE CONSCIENCE OF THE PRESENT GENERATION OF
FILIPINOS WHO CUT THEIR TEETH ON THE BILL OF RIGHTS
WHICH GUARANTEES THEIR RIGHTS TO FREE SPEECH AND
THE FREE EXERCISE OF RELIGIOUS PROFESSION AND
WORSHIP (Section 5, Art. III, 1987 Constitution).

Religious freedom is a fundamental right which is entitled to the

highest priority and the amplest protection among human rights, for it
involves the relationship of man and his Creator (Chief Justice Fernando's
separate opinion in German vs. Barangan, 135 SCRA 530).

The right to religious profession has a two-fold aspect, vis., freedom

to believe and freedom to act on one's belief. The first is absolute as long
as the belief is confined within the realm of the thought. The second is
subject to regulation where the belief is translated into external acts that
affect the public welfare.

The sole justification for a prior restraint or limitation on the

exercise of religious freedom (according the Former Chief justice
Teehankee in his dissenting opinion in German vs. Baranagan) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has the right and duty to
presvent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified since they are not doing
anything that could warrant their expulsion since during flag ceremonies,
 183
they just quietly stand at attention to show their respect for the rights of
others who choose to participate in the solemn proceedings.

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we

upheld the exemption of the members of the Iglesia ni Kristo from the
coverage of the closed-shop agreement between the labor union and the
company because it would violate the teaching of their church not to join
any labor group.

We hold that a similar exemption may be accorded to the Jehovah's

Witnesses with regard to the observance of the flag ceremony out of
respect to their religious beliefs, however "bizarre" those beliefs may
seem to others

CHAPTER VII - THE CONSTITUTIONAL

RIGHT TO TRAVEL

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.

NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY ACT

ON THE RIGHT TO TRAVEL

Section 26 provides that persons who have been charged with

terrorism or conspiracy to commit terrorism---even if they have been
granted bail because evidence of guilt is not strong—can be:

 Detained under house arrest;

 Restricted from traveling; and/or
 Prohibited from using any cellular phones, computers, or other means of
communications with people outside their residence.

Upon application of the prosecutor, the suspect’s right to travel shall be

limited to the municipality or city where he resides or where the case is
pending, in the interest of national security and public safety. Travel
outside of said municipality or city, without the authorization of the court,
shall be deemed a violation of the terms and conditions of the bail which
shall then be forfeited as provided in the Rules of Court.
 184
These restrictions shall be terminated upon acquittal of the accused;
or the dismissal of the case filed against him; or earlier upon the
discretion of the court or upon motion of the prosecutor.

1. The constitutional as well as human right to travel, 129 SCRA

2. Read:

FERDINAND MARCOS, ET AL. VS. HON. RAUL

MANGLAPUS, ET AL., G.R. NO. 88211, September
15, 1989 and the Resolution of the Motion for
Reconsideration dated October 27, 1989

right to travel; liberty of abode

and "right to return"
En banc

Cortes, J.

This is a petition for mandamus and prohibition asking the Supreme

Court to Order the respondents to issue travel documents to the petitioners
and to enjoin the implementation of the President's decision to bar their
return to the Philippines.

The case for the petitioners is founded on the assertion that their right
to return to the Philippines is guaranteed by the following provisions of
the Constitution:

Section 1. No person shall be deprived of life liberty or property

without due process of law, nor shall any person be denied equal
protection of the laws.

Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except in the interest of
national security, public safety or public health, as may be provided by
law.

The petitioners contend that the President has no power to impair the
liberty of abode of the Marcoses because only the Courts may do so
"within the limits prescribed by law". Nor may the President impair the
right to travel because no law has authorized her to do so.

Also, the petitioners claim that under international law, particularly the
Universal Declaration of Humjan Rights guaranteed the right of the
Marcoses to return to the Philippines. Thus:
 185
Art. 13 (1) Everyone has the right to freedom of movement and residence
within the borders of each state.

(2) Everyone has the right to leave any country, including his own, AND
TO RETURN TO HIS COUNTRY.

Likewise, under the International Covenant on Civil and Political

Rights, which had been ratified by the Philippines, provides:

Art. 12

4) No one shall be arbitrarily deprived of the right to enter his own

country.

The respondents argue that the issue in this case involves a political
question which is therefore beyond the jurisdiction of the Court.
Furthermore, they argue that the right of the state to national security
prevails over individual rights, citing Section 4, Art. II of the 1987
Philippine Constitution.

Issue:

Whether or not, in the exercise of the powers granted in the Constitution,

the President may prohibit the Marcoses from returning to the Philippines.

The sub-issues, which could help in the determination of the main

issue, are:

1. Does the President have the power to bar the Marcoses to return to
the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former Pres. Marcos
and his family from returning to the Philippines, in the interest of national
security, public safety or public health, has the President made a finding
that the return of the petitioners to the Philippines is a clear and present
danger to national security, public welfare or public health. And if she has
made that finding, have the requirements of due process been complied
with in making such finding? Has there been prior notice to the
petitioners?

Held:

It must be emphasized that the individual right involved in this case is

not the right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel connote. Essentially, the
right to return to one's country, a totally distinct right under international
 186
law, independent from, though related to the right to travel. Thus, even
the Universal declaration of Human Rights and the International Covenant
on Civil and Political Rights treat the right to freedom of movement and
abode within the territory of the state, the right to leave a country and the
right to enter one's country as separate and distinct rights.

THE RIGHT TO RETURN TO ONE'S COUNTRY IS NOT

AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE
BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF
ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELL-
CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE
CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF
INTERNATIONAL LAW, UNDER OUR CONSTITUTION, IS PART
OF THE LAW OF THE LAND.

To the President, the problem is one of balancing the general

welfare and the common good against the exercise of rights of certain
individuals. The power involved is the President's RESIDUAL
POWER to protect the general welfare of the people.

The court cannot close its eyes to present realities and pretend that the
country is not besieged by the insurgency, separatist movement in
Mindanao, rightist conspiracies to grab power, etc. With these before her,
the President cannot be said to have acted arbitrarily, capriciously and
whimsically.

Lastly, the issue involved in the case at bar is not political in nature
since under Section 1, Art. VIII of the Constitution, judicial power now
includes the duty to "determine whether or not there has been a grave
abuse of discretion amounting to lack of jurisdiction on the part of any
branch or instrumentality of the government."

NOTE:

The main opinion was concurred in by 7 justices (CJ Fernan, Narvasa,

Melencio-Herrera, Gancayco, Grino-Aquino, Medialdea and Regalado) or
a total of 8 justices in voting in favor of DISMISSING the petition. Seven
justices filed separate dissenting opinions (Gutierrez, Jr., Cruz, Paras,
Feliciano, Padilla, Bidin and Sarmiento).

***********************

Gutierrez, Jr., J., dissenting.

With all due respect for the majority in the Court that the main issue in
this case is not one of power but one on RIGHTS. If he comes home, the
government has the power to arrest and punish him but does it have the
power to deny him his right to come home and die among familiar
 187
surroundings? x x x The government has more than ample powers under
existing laws to deal with a person who transgresses the peace and
imperils public safety. BUT THE DENIAL OF TRAVEL PAPERS IS
NOT ONE OF THOSE POWERS BECAUSE THE BILL OF RIGHTS
SAY SO. THERE IS NO LAW PRESCRIBING EXILE IN FOREIGN
LAND AS THE PENALTY FOR HURTING THE NATION.

. The fears expressed by its representatives were based on mere

conjectures of political and economic destabilization without any single
piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that

there exist "factual bases for the President's decision" to bar Marcos's
return. That is not my recollection of the impressions of the Court after
the hearing.

2. Silverio vs. CA, April 8, 1991

Read also:
1. Caunca vs. Salazar, 82 Phil. 851
2. Kwong vs. PCGG, December 7,l987

3. Manotoc vs. CA, 142 SCRA 149

1. Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending
against him. In said cases he was admitted to bail with the FGU Insurance
Corporation as surety.

He is also involved in a case pending before the Securities and

Exchange Commission.

2. The SEC requested the Commissioner on Immigration not to clear

petitioner for departure pending disposition of the case involving him. The
same was granted by the Commissioner.

3. Petitioner subsequently filed before the trial courts a motion entitled

"motion for permission to leave the country" stating as ground therefor his
desire to go to the United States, "relative to his business transactions and
opportunities".

4. The motion was denied by the lower courts and the matter was
elevated to the Court of Appeals which also denied the same. Petitioner
brings the matter to the S.C. claiming his constitutional right to travel and
also contending that having been admitted to bail as a matter of right,
neither the courts which granted him bail nor the SEC would have
jurisdiction over his liberty.
 188
HELD:

Petition denied.

a. A court has the power to prohibit a person admitted to bail from

leaving the Philippines. This is a necessary consequence of the nature and
function of a bail bond. The condition imposed upon petitioner to make
himself available at all times whenever the court requires his presence
operates as a valid restriction on his right to travel.

b. "x x x the result of the obligation assumed by appellee to hold the

accused amenable at all times to the orders and processes of the lower
court, was to prohibit the accused from leaving the jurisdiction of the
Philippines, because, otherwise, said orders and processes will be
nugatory, and inasmuch as the jurisdiction of the courts from which they
issued does not extend beyond that of the Philippines they would have no
binding force outside of said jurisdiction."(People vs. Uy Tuising, 61
Phil. 404 (l935)

c. To allow the petitioner to leave the Philippines without sufficient

reason would place him beyond the reach of the courts.

d. Petitioner cites the Court of Appeals case of People vs. Shepherd

(C.A.-G.R. No. 23505-R, Feb. 13, 1980) as authority for his claim that he
could travel. The S.C. held however that said case is not squarely on all
fours with the case at bar. Unlike the Shepherd case, petitioner has failed
to satisfy the courts of the urgency of his travel, the duration thereof, as
well as the consent of his surety to the proposed travel.

e. It may thus be inferred that the fact that a criminal case is pending
against an accused does not automatically bar him from travelling abroad.
He must however convince the courts of the urgency of his travel, the
duration thereof, and that his sureties are willing to undertake the
responsibility of allowing him to travel.

4. Villavicencio vs. Lukban, 39 Phil. 778

5. Roan vs. Gonzales, supra.
6. Salonga vs. Hermoso, 97 SCRA 121
7. Read also the Ferdinand Marcos Cases of August & October, 1989

CHAPTER VIII - THE CONSTITUTIONAL

RIGHT TO INFORMATION

Section 7. The right of the people to

information on matters of public concern
shall be recognized. Access to official
records… shall be afforded the citizen
 189
subject to such limitations as may be
provided by law.

1. Read:

Right to Privacy; right to information on matters of public concern;

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,

October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago

introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),233
[4]
“directing an inquiry in aid of legislation on the anomalous losses
incurred by the Philippines Overseas Telecommunications Corporation
(POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due
to the alleged improprieties in their operations by their respective Board
of Directors.” The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and

entertainment expense of the PHC skyrocketed to P4.3 million, as
compared to the previous year’s mere P106 thousand;

WHEREAS, some board members established wholly owned PHC

subsidiary called Telecommunications Center, Inc. (TCI), where PHC
funds are allegedly siphoned; in 18 months, over P73 million had been
allegedly advanced to TCI without any accountability report given to PHC
and PHILCOMSAT;

WHEREAS, the Philippine Star, in its 12 February 2002 issue

reported that the executive committee of Philcomsat has precipitately
released P265 million and granted P125 million loan to a relative of an
executive committee member; to date there have been no payments given,
subjecting the company to an estimated interest income loss of P11.25
million in 2004;

WHEREFORE, be it resolved that the proper Senate Committee

shall conduct an inquiry in aid of legislation, on the anomalous losses
incurred by the Philippine Overseas Telecommunications
Corporation (POTC), Philippine Communications Satellite
Corporation (PHILCOMSAT), and Philcomsat Holdings

233[4] Annex “E” of the Petition in G.R. No. 174318.

 190
Corporations (PHC) due to the alleged improprieties in the
operations by their respective board of directors.

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the

authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio
of the PCGG, one of the herein petitioners, inviting him to be one of the
resource persons in the public meeting jointly conducted by the
Committee on Government Corporations and Public Enterprises and
Committee on Public Services. The purpose of the public meeting was to
deliberate on Senate Res. No. 455.234[6]

On May 9, 2006, Chairman Sabio declined the invitation because of

prior commitment.235[7] At the same time, he invoked Section 4(b) of
E.O. No. 1 earlier quoted. On September 12, 2006, at around 10:45 a.m.,
Major General Balajadia arrested Chairman Sabio in his office at IRC
Building, No. 82 EDSA, Mandaluyong City and brought him to the
Senate premises where he was detained. Hence, Chairman Sabio filed
with the Supreme Court a petition for habeas corpus against the Senate
Committee on Government Corporations and Public Enterprises and
Committee on Public Services, their Chairmen, Senators Richard Gordon
and Joker P. Arroyo and Members. The case was docketed as G.R. No.
174340.

I S S U E S:

Is the refusal of the petitioners to testify in Congress by virtue of

EO No. 1, Section 4 [b] violates the constitutional provision on
information on matters of public concern?

H E L D:

Yes.

Section 4(b) of E.O. No.1 which was invoked by the petitioners in

support of their refusal to testify in the Senate limits the power of
legislative inquiry by exempting all PCGG members or staff from
testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall be required to

testify or produce evidence in any judicial, legislative or

234[6] Annex “F” of the Petition in G.R. No. 174318.

235 [7]
Annex “G” of the Petition in G.R. No. 174318.
 191
administrative proceeding concerning matters within its official
cognizance.

Such provision of EO No. 1 is unconstitutional because it violates

the constitutional provision ensuring the people’s access to information on
matters of public

1-A. BANTAY REPUBLIC ACT VS. COMELEC,

MAY 4, 2007, 523 SCRA 1

The petitioner requested the COMELEC to publish the

individual nominees of all the party-list groups in order that they will
be guided on what party-list group shall be supported by them. The
COMELEC held that under the Party-list Act, such list of nominees is
confidential and should not be published.

Held:

The COMELEC should publish the list of nominees of all the

party-list groups. This is in accordance with the right to information
on matters of public concern which shall be accorded to every citizen.

VALMONTE VS. BELMONTE, GR NO.

74930, FEBRUARY 13, 1989 in relation to
the Right to Privacy

Cortes, J.

Facts:

1. On June 4, 1986, petitioner Valmonte wrote the respondent asking the

latter to furnish him copies of former members of the Batasang Pambansa
who were able to secure a "clean loan" from the GSIS prior to the
February 7, 1986 elections;

2. On June 17, 1986, respondent through counsel refused to give the

petitioner a list of said lawmakers who obtained "clean loans" from the
GSIS on the ground that there is a confidential relationship between the
GSIS and its borrowers and it would be proper for them to preserve the
same;

3. On July 19, 1986, the petitioners filed this instant petition.

Issues:
 192
1. Whether or not the case should be dismissed for failure to exhaust
administrative remedies?

2. Whether or not the petitioners are entitled to the documents sought

in accordance with their constitutional right to information?

Held:

1. It is well-settled in our jurisdiction that before a party can be allowed to

resort to the courts, he is expected to have exhausted all means of
administrative redress available under the law.

In the case at bar, the decision of the General Manager of the GSIS is
appealable/reviewable by the GSIS Board of Trustees. Petitioners did not
ask the Board of Trustees to review the decision of the respondent.

However, the rule on exhaustion of administrative remedies is not

applicable when only questions of law is involved. (Pascual vs. Provincial
Board, 106 Phil. 466; Aguilar vs. Valencia, 40 SCRA 210; Malabanan vs.
Ramento, 129 SCRA 359.

This is not the first time that the court is confronted with a case
involving the right to information. In Tanada vs. Tuvera, 136 SCRA 27,
we upheld the citizen's right to information as well as in Legaspi vs. CSC,
150 SCRA 530 and ordered the government officers involved to act as
prayed for by the petitioners. The pertinent provision of the Constitution
is Section 7, Art. III which provides:

The right of the people to information on matters of public concern shall

be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions x x x shall be afforded the citizen,
subject to such limitations as may be provided for by law.

The postulate of public office is a public trust as institutionalized in the

Constitution (Sec. 1, Art. XI) to protect the people from abuse of
governmental power, would certainly be empty words if access to
information of public concern is denied except under limitations
prescribed by law.

Petitioners are members of the media. As such, they have both the right
to gather and the obligation to check the accuracy of the information they
disseminate x x x

The right to information is an essential premise of a meaningful right

to speech and expression. But this is not to say that the right to
information is merely an adjunct of and therefore restricted in application
by the exercise of the freedom of speech and of the press. Far from it. The
 193
right to information goes hand in hand with the constitutional policies of
"full public disclosure" and "honesty in the public service".

Yet, like all the constitutional guarantees, the right to information is not
absolute. It is subject to limitations provided for by law and the people's
right to information is limited to "matters of public concern". Similarly,
the State's policy of full disclosure is limited to "transactions involving
public interest" and subject to "reasonable conditions prescribed by law."

The information sought to be obtained by the petitioners affect public

interest since the GSIS is the trustee of contributions from the
government and its employees. The funds of the GSIS assume a public
character and that its obligations are guaranteed by the government.

The petitioners are entitled to access to documents sought subject to

reasonable regulations that the respondent may impose relating to manner
and hours of examination, to the end that damage or loss of the records
may be avoided, that undue interference with the duties of the custodian
of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured [Legaspi vs. CSC, supra;
Subido vs. Ozaeta, 80 Phil. 383]

he petitioners, however, are not entitled to be furnished copies of list of

alleged members of the Batasang Pambansa who were able to secure
clean loans through the intercessions of Pres. Marcos and the First Lady.
This is so because access to public records does not include the right to
compel custodians of official records to prepare lists, abstracts, summaries
and the like in their desire to acquire information on matters of public
concern.

The respondent is therefore ordered to allow petitioners access to

documents and records evidencing loans granted to members of the
Batasang Pambansa, as petitioners may specify, subject to reasonable
rules and regulations as the GSIS may deem necessary.

SENATE OF THE PHILIPPINES, represented by

SENATE PRESIDENT FRANKLIN DRILON, ET
AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL.,
G.R. No. 16977, April 20, 2006

CARPIO MORALES, J.:

The Facts:

In the exercise of its legislative power, the Senate of the Philippines,

through its various Senate Committees, conducts inquiries or
 194
investigations in aid of legislation which call for, inter alia, the attendance
of officials and employees of the executive department, bureaus, and
offices including those employed in Government Owned and Controlled
Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a

whole issued invitations to various officials of the Executive Department
for them to appear on September 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon Railways Corporation
with the China National Machinery and Equipment Group (hereinafter
North Rail Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate the alleged
overpricing and other unlawful provisions of the contract covering the
North Rail Project.

On September 28, 2005, the President of the Philippines issued E.O.

464, “ENSURING OBSERVANCE OF THE PRINCIPLE OF
SEPARATION OF POWERS, ADHERENCE TO THE RULE ON
EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF
PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN
AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR
OTHER PURPOSES,” which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In

accordance with Article VI, Section 22 of the Constitution and to
implement the Constitutional provisions on the separation of powers
between co-equal branches of the government, all heads of departments
of the Executive Branch of the government shall secure the consent of
the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive

privilege is fundamental to the operation of government and rooted in the
separation of powers under the Constitution (Almonte vs. Vasquez, G.R.
No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of
Conduct and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by reason
of their office and not made available to the public to prejudice the public
interest.
 195
(b) Who are covered. – The following are covered by this executive
order:

1. Senior officials of executive departments who in the judgment of the

department heads are covered by the executive privilege;
2. Generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are covered
by the executive privilege;
3. Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the judgment of
the Chief of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.

I S S U E S:

1. Whether E.O. 464 violates the right of the people to information

on matters of public concern; and

H E L D:

E.O 464 likewise violates the constitutional provision on the right

to information on matters of public concern. There are clear distinctions
between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of
documents pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress. Neither
does the right to information grant a citizen the power to exact testimony
from government officials. These powers belong only to Congress and
not to an individual citizen.

To the extent that investigations in aid of legislation are generally

conducted in public, however, any executive issuance tending to unduly
limit disclosures of information in such investigations necessarily
deprives the people of information which, being presumed to be in aid of
legislation, is presumed to be a matter of public concern. The citizens are
thereby denied access to information which they can use in formulating
their own opinions on the matter before Congress — opinions which they
can then communicate to their representatives and other government
officials through the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may
 196
perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when
the participants in the discussion are aware of the issues and have access
to information relating thereto can such bear fruit. 236 (Emphasis and
underscoring supplied)

The impairment of the right of the people to information as a

consequence of E.O. 464 is, therefore, in the sense explained above, just
as direct as its violation of the legislature’s power of inquiry.

1-a. Legaspi vs. CSC, 150 SCRA 530

1-b. Brilliantes vs. Chang, Aug. 14, 1990
1-c. Canlas vs. Vazquez, July 3, 1990
1-d. Aquino-Sarmiento vs. Manuel Morato, November 13, 1991
2. Tanada vs. Tuvera, 146 SCRA 44
3. Baldoza vs. Dimaano, 71 SCRA 14
4. Lantaco vs. Lllamas, 108 SCRA 502
5. Subido vs. Ozaeta, 80 Phil. 383

CHAPTER IX - THE CONSTITUTIONAL

RIGHT TO FORM AND JOIN ASSOCIATIONS

Section 8. The right of the people, including

those employed in the public and private
sectors, to form unions, associations,
societies for purposes not contrary to law
shall not be abridged.

1. Freedom of Association, 100 SCRA 100

2. The fundamental right of self-organization,108 SCRA 390

3. The right of self-organization of managerial employees,47 SCRA 434

4. Read:

1. In re: ATTY. EDILLON, 84 SCRA 554

2. Tarnate vs. Noriel, 100 SCRA 93
3. Samahan ng Manggagawa vs. Noriel, 108 SCRA 381
4. Villar vs. Inciong, April 20,l983
5. P. vs. Ferrer, 48 SCRA 382
6. P. vs. Ferrer, 56 SCRA 793 (Read the dissenting opinion of Justice
FERNANDO in both cases)

236 G.R. No. 74930, February 13, 1989, 170 SCRA 256.
 197
CHAPTER X - THE POWER
OF EMINENT DOMAIN

Section 9. Private property shall not be

taken for public use without just
compensation

1. The inherent power of eminent domain,93 SCRA 663

2. Who may exercise it? How about a barangay? Yes with the President ’s
approval.

Read:

1. Barangay Matictic vs. Elbinias, 148 SCRA 83

2. Procedure for the exercise of said power; Extent of payment to be made before
writ of possession shall be issued in favor of the government.

Value of property expropriated for national projects; Writ of possession

when it shall be issued by the court; when Rule 67 of the Rules of Court and
when RA 8974 shall apply; full payment of just compensation before
government takes over.

REPUBLIC OF THE PHILIPPINES VS. JUDGE

GINGOYON, 478 SCRA 474

Tinga, J.

Facts:

In 2003, the Supreme Court held in AGAN VS. PIATCO, 402

SCRA 612 that the CONCESSION AGREEMENT FOR THE BUILD
OPERATE TRANSFER ARRANGEMENT OF THE NINOY AQUINO
INTERNATIONAL AIRPORT PASSENGER TERMINAL II between the
Philippine Government and the Philippine International Air Terminals
Co., Inc. (PIATCO) as well as the amendments thereto is void for being
contrary to law and public policy. On Motion for Reconsideration (420
SCRA 420), the Supreme Court held that:

“This Court, however, is not unmindful of the reality that the

structures comprising the NAIA IPT III facility are almost complete and
that funds have been spent by PIATCO in their construction. For the
government to take over the said facility, IT HAS TO COMPENSATE
RESPONDENT PIATCO AS BUILDER OF THE SAID
STRUCTURES. THE COMPENSATION MUST BE JUST AND IN
ACCORDANCE WITH LAW AND EQUITY FOR THE
 198
GOVERNMENT CAN NOT UNJUSTLY ENRICH ITSELF AT THE
EXPENSE OF PIATCO AND ITS INVESTORS.”

On December 21, 2004, the Government filed a complaint for

expropriation with the RTC of Pasay City seeking a writ of possession
authorizing to take immediate possession and control over NAIA 3
facilities and deposited the amount of P3.0B in cash with Land Bank of
the Philippines representing the assessed value of the terminal’s assessed
value for taxation purposes.

On the same day, Judge Gingoyon issued an Order directing the

issuance of a writ of possession to the government to “take or enter upon
the possession of the NAIA 3 facilities”. It held that it is the ministerial
duty of the government to issue writ of possession upon deposit of the
assessed value of the property subject of expropriation.

However, on January 4, 2005, Judge Gingoyon issued another Order

supplementing the December 21, 2004 Order. It pointed out that the
earlier orderas to the amount to be deposited by the government was
based on Section 2, Rule 67 when what should be applicable is RA 8974
and therefore ordered that the amount of US$62,343,175.77 be released to
PIATCO instead of the amount in the December 21, 2004 Order.

On January 7, 2005, Judge Gingoyon issued another Order directing

the appointment of three (3) Commissioners to determine just
compensation for the NAIA 3 Complex.

Both Orders were questioned by the government as having been

issued with grave abuse of discretion.

ISSUES:

1. What law is applicable in this expropriation case: Rule 67 of the

Rules of Court or RA 8974?
2. If RA 8974 will be used, may the court used the provision of Rule
67 on the 3 commissioners to determine just compensation.

HELD:

1.

Application of Rule 67 would violate the AGAN Doctrine which

provides that “for the government to take over the said NAIA 3 facility, IT
HAS TO COMPENSATE RESPONDENT PIATCO AS BUILDER OF
THE SAID STRUCTURES”. If Section 2, Rule 67 will be applied,
PIATCO would be enjoined from receiving the just compensation even if
the government takes over the NAIA 3 facility. It is sufficient that the
government deposits the amount equal to the assessed value of the
 199
facilities. It would violate the proscription in the AGAN Decision that the
government must pay first the just compensation before taking over the
facilities.

So when shall Rule 67 be used in expropriation cases and when shall

RA 8974 be used?

In all “National government projects” or “national infrastructure

projects”, like those covered by the “Build-Operate-Transfer”, RA 8974
shall be followed. The rest, Rule 67 shall apply.

Differences between the two laws on expropriation:

a. Under Rule 67, the government “merely deposits” the assessed value of
the property subject of expropriation and can have a writ of possession
over the same while under RA 8974, the scheme of immediate payment
(100%) shall be followed.
b. Under Rule 67, there can be writ of possession even if the owner of the
property has not received a single centavo while under RA 8974, as in this
case, Writ of Possession may not be issued in favor of the government
UNTIL ACTUAL RECEIPT by PIATCO of the proferred value of just
compensation.

Upon issuance of the writ in favor of the government, however, it could

already exercise acts of ownership over the NAIA 3 facilities.

The just compensation to be paid by the government shall be

determined within 60 days from the finality of the decision based on
Section 4, RA 8974.

Rule 67 on the appointment of three (3) commissioners to determine

just compensation may be used since RA 8974 does not provide for such
procedure.

Just Compensation; Amount to be deposited in court before a Writ of

Possession may be issued by the court in favor of the government; When
to apply Rule 67 and when to apply RA No. 8974; Who owns the interest
of the initial amount deposited for the purpose of issuing writ of
possession

REPUBLIC OF THE PHILIPPINES VS. HOLY TRINITY REALTY

DEVELOPMENT CORPORATION, G.R. No. 172410, April 14, 2008

THE FACTS:
 200

On 29 December 2000, petitioner Republic of the Philippines,

represented by the Toll Regulatory Board (TRB), filed with the RTC a
Consolidated Complaint for Expropriation against landowners whose
properties would be affected by the construction, rehabilitation and
expansion of the North Luzon Expressway. The suit was docketed as
Civil Case No. 869-M-2000 and raffled to Branch 85, Malolos, Bulacan.
Respondent Holy Trinity Realty and Development Corporation (HTRDC)
was one of the affected landowners.

On 18 March 2002, TRB filed an Urgent Ex-Parte Motion for the

issuance of a Writ of Possession, manifesting that it deposited a sufficient
amount to cover the payment of 100% of the zonal value of the affected
properties, in the total amount of P28,406,700.00, with the Land Bank of
the Philippines, South Harbor Branch (LBP-South Harbor), an authorized
government depository. TRB maintained that since it had already
complied with the provisions of Section 4 of Republic Act No. 8974 237[5]
in relation to Section 2 of Rule 67 of the Rules of Court, the issuance of
the writ of possession becomes ministerial on the part of the RTC.

The RTC issued, on 19 March 2002, an Order for the Issuance of a

Writ of Possession.

On 3 March 2003, HTRDC filed with the RTC a Motion to

Withdraw Deposit, praying that the respondent or its duly authorized
representative be allowed to withdraw the amount of P22,968,000.00, out
of TRB’s advance deposit of P28,406,700.00 with LBP-South Harbor,
including the interest which accrued thereon.

Thereafter, the RTC allowed the release of the principal amount

together with the interest to the respondent but on Motion for
Reconsideration of the TRB, it disallowed the withdrawal of the interest
reasoning out that the said issue will be included in the second stage of
expropriation, that is, the determination of just compensation.

The private respondent elevated the issue to the Court of Appeals

which ruled that the respondent is entitled to the interest by way of
accession.

Hence, this petition of the government before the Supreme Court.

I S S U E:

Who has the right over the interest of the amount deposited
representing the zonal value of the property sought to be expropriated?
The expropriator or the landowner?

237
 201
HELD:

The petition is without merit.

The TRB claims that there are two stages 238[11] in expropriation
proceedings, the determination of the authority to exercise eminent
domain and the determination of just compensation. The TRB argues that
it is only during the second stage when the court will appoint
commissioners and determine claims for entitlement to interest, citing
Land Bank of the Philippines v. Wycoco239[12] and National Power
Corporation v. Angas.240[13]

The TRB further points out that the expropriation account with LBP-
South Harbor is not in the name of HTRDC, but of DPWH. Thus, the
said expropriation account includes the compensation for the other
landowners named defendants in Civil Case No. 869-M-2000, and does
not exclusively belong to respondent.

The said argument is without merit because it failed to distinguish

between the expropriation procedures under Republic Act No. 8974 and
Rule 67 of the Rules of Court. Republic Act No. 8974 and Rule 67 of the
Rules of Court speak of different procedures, with the former specifically
governing expropriation proceedings for national government
infrastructure projects. Thus, in Republic v. Gingoyon,241[14] we held:

There are at least two crucial differences between the respective

procedures under Rep. Act No. 8974 and Rule 67. Under the statute, the
Government is required to make immediate payment to the property
owner upon the filing of the complaint to be entitled to a writ of
possession, whereas in Rule 67, the Government is required only to
make an initial deposit with an authorized government depositary.
Moreover, Rule 67 prescribes that the initial deposit be equivalent to the
assessed value of the property for purposes of taxation, unlike Rep. Act
No. 8974 which provides, as the relevant standard for initial
compensation, the market value of the property as stated in the tax
declaration or the current relevant zonal valuation of the Bureau of
Internal Revenue (BIR), whichever is higher, and the value of the
improvements and/or structures using the replacement cost method.

xxxx

Rule 67 outlines the procedure under which eminent domain may be

exercised by the Government. Yet by no means does it serve at present as
the solitary guideline through which the State may expropriate private
property. For example, Section 19 of the Local Government Code governs
238
239
240
241
 202
as to the exercise by local government units of the power of eminent
domain through an enabling ordinance. And then there is Rep. Act No.
8974, which covers expropriation proceedings intended for national
government infrastructure projects.

Rep. Act No. 8974, which provides for a procedure eminently more
favorable to the property owner than Rule 67, inescapably applies in
instances when the national government expropriates property “for
national government infrastructure projects.” Thus, if expropriation is
engaged in by the national government for purposes other than national
infrastructure projects, the assessed value standard and the deposit mode
prescribed in Rule 67 continues to apply.

There is no question that the proceedings in this case deal with the
expropriation of properties intended for a national government
infrastructure project. Therefore, the RTC correctly applied the procedure
laid out in Republic Act No. 8974, by requiring the deposit of the amount
equivalent to 100% of the zonal value of the properties sought to be
expropriated before the issuance of a writ of possession in favor of the
Republic.

The controversy, though, arises not from the amount of the deposit,
but as to the ownership of the interest that had since accrued on the
deposited amount.

Whether the Court of Appeals was correct in holding that the interest
earned by the deposited amount in the expropriation account would accrue
to HRTDC by virtue of accession, hinges on the determination of who
actually owns the deposited amount, since, under Article 440 of the Civil
Code, the right of accession is conferred by ownership of the principal
property:

Art. 440. The ownership of property gives the right by accession to

everything which is produced thereby, or which is incorporated or
attached thereto, either naturally or artificially.

The principal property in the case at bar is part of the deposited

amount in the expropriation account of DPWH which pertains particularly
to HTRDC. Such amount, determined to be P22,968,000.00 of the
P28,406,700.00 total deposit, was already ordered by the RTC to be
released to HTRDC or its authorized representative. The Court of
Appeals further recognized that the deposit of the amount was already
deemed a constructive delivery thereof to HTRDC:

When the [herein petitioner] TRB deposited the money as advance

payment for the expropriated property with an authorized government
depositary bank for purposes of obtaining a writ of possession, it is
deemed to be a “constructive delivery” of the amount corresponding to the
 203
100% zonal valuation of the expropriated property. Since [HTRDC] is
entitled thereto and undisputably the owner of the principal amount
deposited by [herein petitioner] TRB, conversely, the interest yield, as
accession, in a bank deposit should likewise pertain to the owner of the
money deposited.242[15]

Since the Court of Appeals found that the HTRDC is the owner of
the deposited amount, then the latter should also be entitled to the interest
which accrued thereon.

The deposit was made in order to comply with Section 4 of Republic

Act No. 8974, which requires nothing less than the immediate payment of
100% of the value of the property, based on the current zonal valuation of
the BIR, to the property owner. Thus, going back to our ruling in
Republic v. Gingoyon243[16]:

It is the plain intent of Rep. Act No. 8974 to supersede the system of
deposit under Rule 67 with the scheme of “immediate payment” in cases
involving national government infrastructure projects.

The critical factor in the different modes of effecting delivery which

gives legal effect to the act is the actual intention to deliver on the part of
the party making such delivery.244[17] The intention of the TRB in
depositing such amount through DPWH was clearly to comply with the
requirement of immediate payment in Republic Act No. 8974, so that it
could already secure a writ of possession over the properties subject of the
expropriation and commence implementation of the project. In fact, TRB
did not object to HTRDC’s Motion to Withdraw Deposit with the RTC, for
as long as HTRDC shows (1) that the property is free from any lien or
encumbrance and (2) that respondent is the absolute owner thereof.245[18]

A close scrutiny of TRB’s arguments would further reveal that it

does not directly challenge the Court of Appeals’ determinative
pronouncement that the interest earned by the amount deposited in the
expropriation account accrues to HTRDC by virtue of accession. TRB
only asserts that HTRDC is “entitled only to an amount equivalent to the
zonal value of the expropriated property, nothing more and nothing less.”

We agree in TRB’s statement since it is exactly how the amount of

the immediate payment shall be determined in accordance with Section 4
of Republic Act No. 8974, i.e., an amount equivalent to 100% of the zonal
value of the expropriated properties. However, TRB already complied
therewith by depositing the required amount in the expropriation account
of DPWH with LBP-South Harbor. By depositing the said amount, TRB
is already considered to have paid the same to HTRDC, and HTRDC
242
243
244
245
 204
became the owner thereof. The amount earned interest after the deposit;
hence, the interest should pertain to the owner of the principal who is
already determined as HTRDC. The interest is paid by LBP-South
Harbor on the deposit, and the TRB cannot claim that it paid an amount
more than what it is required to do so by law.

Since the respondent is the owner of P22,968,000.00, it is entitled

by right of accession to the interest that had accrued to the said amount
only.

We are not persuaded by TRB’s citation of National Power

Corporation v. Angas and Land Bank of the Philippines v. Wycoco, in
support of its argument that the issue on interest is merely part and parcel
of the determination of just compensation which should be determined in
the second stage of the proceedings only. We find that neither case is
applicable herein.

The issue in Angas is whether or not, in the computation of the legal

rate of interest on just compensation for expropriated lands, the applicable
law is Article 2209 of the Civil Code which prescribes a 6% legal interest
rate, or Central Bank Circular No. 416 which fixed the legal rate at 12%
per annum. We ruled in Angas that since the kind of interest involved
therein is interest by way of damages for delay in the payment thereof,
and not as earnings from loans or forbearances of money, Article 2209 of
the Civil Code prescribing the 6% interest shall apply. In Wycoco, on the
other hand, we clarified that interests in the form of damages cannot be
applied where there is prompt and valid payment of just compensation.

The case at bar, however, does not involve interest as damages for
delay in payment of just compensation. It concerns interest earned by the
amount deposited in the expropriation account.

Under Section 4 of Republic Act No. 8974, the implementing

agency of the government pays just compensation twice: (1) immediately
upon the filing of the complaint, where the amount to be paid is 100% of
the value of the property based on the current relevant zonal valuation of
the BIR (initial payment); and (2) when the decision of the court in the
determination of just compensation becomes final and executory, where
the implementing agency shall pay the owner the difference between the
amount already paid and the just compensation as determined by the court
(final payment).246[19]

As a final note, TRB does not object to HTRDC’s withdrawal of the

amount of P22,968,000.00 from the expropriation account, provided that
it is able to show (1) that the property is free from any lien or
encumbrance and (2) that it is the absolute owner thereof. 247[21] The said
246
247
 205
conditions do not put in abeyance the constructive delivery of the said
amount to HTRDC pending the latter’s compliance therewith. Article
1187248[22] of the Civil Code provides that the “effects of a conditional
obligation to give, once the condition has been fulfilled, shall retroact to
the day of the constitution of the obligation.” Hence, when HTRDC
complied with the given conditions, as determined by the RTC in its
Order249[23] dated 21 April 2003, the effects of the constructive delivery
retroacted to the actual date of the deposit of the amount in the
expropriation account of DPWH.

BIGLANG-AWA VS. JUDGE BACALLA, 354

SCRA 562

PURSUANT TO SECTION 2, RULE 67 OF THE 1997 RULES OF

CIVIL PROCEDURE AND THE DOCTRINE LAID DOWN IN THE
ROBERN DEVELOPMENT CASE, THE ONLY REQUISITES FOR THE
IMMEDIATE ENTRY BY THE GOVERNMENT IN EXPROPRIATION
CASES ARE:

a. the filing of a complaint for expropriation sufficient in form and

substance; and

b. the making of a deposit equivalent to the ASSESSED VALUE OF

THE PROPERTY SUBJECT TO EXPROPRIATION.

The owners of the expropriated land are entitled to legal interest on the
compensation eventually adjudged from the date the condemnor takes
possession of the land until the full compensation is paid to them or deposited
in court.

Requisites before immediate possession or writ of possession may be

issued in expropriation cases, involving local government units as the
expropriating agency:

1. Complaint sufficient in form and substance; and

2. Payment of 15% of the Market value as appearing in the
latest Tax Declaration.

THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC

22, ILOILO CITY, 444 SCRA 269

248
249
 206
Requisites before the expropriator is allowed immediate entry on the property
subject of expropriation if the expropriator is a local government unit.

The expropriator may immediately enter the property subject of

expropriation proceedings if the following requisites are present:

1. the complaint for expropriation filed in court is sufficient in form

and substance; and
2. the expropriator must deposit the amount equivalent to 15%
of the fair market value of the property to be expropriated
based on its current tax declaration.

GABATIN VS. LAND BANK OF THE

PHILIPPINES, 444 SCRA 176

What is the basis of the just compensation for expropriation proceedings

in connection with the agrarian reform program of the government.

Held:

The taking of private lands under the agrarian reform program of the
government partakes of the nature of an expropriation proceedings. As such, in
computing the just compensation, it is the value of the land at the time of
the taking, not at the time of the rendition of the judgment, which should
be taken into consideration.

BANK OF THE PHILIPPINE ISLANDS VS. COURT

OF APPEALS, 441 SCRA 637

Just compensation in expropriation cases; value of the property when?

Just compensation is defined as the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the taker ’s gain,
but the owner’s loss. Market value is that sum of money which a person
desirous but not compelled to buy, and an owner willing but not compelled to
sell, would agree on as a price to be given and received therefore.

The just compensation is determined as of the date of taking of the

property or the filing of the complaint for expropriation, WHICHEVER
COMES FIRST.

4. Basis of just compensation

Read:
 207
a. NPC vs. Jocson, February 25, 1992
a-1. Ansaldo vs. Tantuico, Aug. 3, 1990
b. Mun. of Makati vs. CA, Oct. 1, 1990
c. Reublic vs. IAC, 185 SCRA 572
d. Mun. of Talisay vs. Ramirez, 183 SCRA 528
e. NPC vs. CA, 129 SCRA 665
f. Maddumba vs. GSIS, 182 SCRA 281

Read also:

1. Meaning of just compensation in eminent domain proceedings, 29

SCRA 868

Basis of just compensation (Exceptional case)

BERKENKOTTER, INC. VS. COURT OF APPEALS

AND REPUBLIC OF THE PHILIPPINES, December
14, 1992
Cruz, J.

Facts:
------

1. On June 18, 1982, Vicente Viray, then President of Apolinario Apacible

School of Fisheries, a government institution in Nasugbu, Batangas, sent the
petitioner a written offer to buy the property of the latter with an area of 10,640
square meters for its 5-year expansion program;

2. That the petitioner expressed willingness to sell at P50.00 per square meter in
its reply;

3. Viray then requested the Office of the Provincial Assessor of the Province of
Batangas to appraise the land and the latter fixed its market value at P32.00 per
square meter;

4. Viray then wrote the petitioner and expressed willingness to buy the latter's
property at P32.00 per square meter. The petitioner, however, stuck to its
original valuation. Later on, it said that its property had in fact appreciated to as
much as P100.00 per square meter;

5. On October 28, 1983, the Republic of the Philippines filed a complaint for
the expropriation of the petitioner's property and invoked the assessment made
by the Provincial Appraisal Committee of the Provincial Assessor of Batangas
in the amount of P32.00. The government likewise sought immediate
possession of the property upon deposit of 10% of the total assessment in
accordance with PD 48;
 208

6. Berkenkotter originally questioned the purpose of the expropriation but later

abandoned this objection and concentrated only on what it called the
"underappraisal" of the subject land;

7. The RTC then appointed a panel of commissioners in accordance with Rule

67, ection 5, of the Rules of Court, to determine the just compensation to be
paid for the land;

8. On September 23, 1985, the panel of commissioners submitted its report to

the trial court and pegged the market value at P85.00 per square meter;

9. The Republic of the Philippines objected and pointed to three (3) contracts
of sale executed by the petitioner in 1985 whereby it sold three (3) tracts of
land similar in topography and adjacent to the property in question for the unit
price of only P19.18 per square meter;

10. The court directed the commissioners to convene anew and to receive
additional evidence. However, in its second report dated April 1, 1987, the
panel reiterated its original recommendation of P85.00/sq. m. or a total of
P904,400.00 for the entire area sought to be expropriated. The trial court acting
on this recommendation rendered judgment requiring the Republic to pay the
petitioner the amount of P904,400.00 for the entire area sought to be
expropriated;

11. The government appealed the trial court's decision to the Court of Appeals
which rendered a decision REVERSING THE LOWER COURT'S DECISION
and declaring that the fair market value which should be the basis in computing
the amount to be paid by the government to the petitioner shall be P19.18, the
market value according set by the petitioner if we follow the three (3) deeds of
sale it executed in favor of three (3) different individuals;

12. The petitioner was therefore constrained to file this instant petition
claiming that the Court of Appeals erred in holding that P19.18 per square
meter should be the basis of the computation for the just compensation of its
property because:

a. Viray even offered the amount of P32.00 per squaremeter as the fair
market value;

b. that P32.00 per square meter was the appraised value made by the Office
of the Provincial Assessor of Batangas; and

c. the complaint itself prays that the market value be pegged at P32.00 per
square meter.

Issue:
------
 209

WHAT SHOULD BE THE BASIS IN THE COMPUTATION OF THE

JUST COMPENSATION: P32.00/SQ. M. IN ACCORANCE WITH THE
APPRAISAL OF THE PROVINCIAL ASSESSOR; P100.00/SQ.M. AS
CLAIMED BY THE OWNER; P85.00/SQ. M. AS RECOMMENDED BY
THE BOARD OF COMMISSIONERS APPOINTED BY THE COURT TO
EVALUATE THE SAME, OR P19.18 PER SQUARE METER WHICH WAS
THE SELLING PRICE IN AN ADJACENT LOT SOLD BY THE
PETITIONER TO THREE PRIVATE INDIVIDUALS.

Held.
-----

The basis in the computation of just compensation shall be P19.18 per

square meter or the price which the petitioner sold its other lots to other
individuals.

This is so because there is no showing that the petitioner had any special
reason for granting each of the individual vendees the extraordinary discount
amounting to as much as 75% of its claimed real value of the land. To all
appearances, they were ordinary buyers who bought the land for their own
private purposes only and not for the public purpose invoked by the
government.

The petitioner's claim that the value as appearing in the deeds of sale
in the three other parcels is not a reliable index of just compensation
"because owners usually undervalue the selling price of the property to lower
the expenses they would have to pay for capital gains tax and documentary
stamps tax" is practically an admission that it did not indicate the actual
consideration in the three transactions where it was made to appear that the
price per square meter was only P19.18. If this was the purpose of the
petitioner when it executed the 3 deeds of sale, then IT IS SURELY HOIST
NOW BY ITS OWN PETARD. AND RIGHTLY SO, FOR IT CANNOT BE
ALLOWED TO PROFIT FROM ITS OWN DECEPTION AND CLAIM THAT
THE SUBJECT PROPERTY SHOULD BE ASSESSED AT THE HIGHER
RATE IT CLANDESTINELY AGREED UPON WITH THE BUYERS.

The Court is disappointed that the petitioner should demand a higher price
from the republic, which needs the land for a public purpose, when it was
willing to accept less from the three individual buyers who had only their
private interests to serve.

The fact that the petitioner sold the 3 other parcels of land at P19.18 per
square meter which are admittedly of the same topography as that subject of
this case, it impliedly admitted that the price for the latter should be the same as
the former. This rule of consistency is best expressed in the familiar saying,
surely not unknown to the petitioner, THAT WHAT IS SAUCE FOR THE
GOOSE IS ALSO SAUCE FOR THE GANDER.
 210

Just compensation is defined as the full and fair equivalent of the proerty
sought to be expropriated (Association of Small Landowners vs. Secretary of
Agrarian Reform, 175 SCRA 378). The measure is not the taker's gain but the
owner's loss. he compensation, to be just, must be fair not only to the owner but
also to the taker.

To determine just compensation, the trial court should first ascertain the
market value of the property, to which should be added the consequential
benefits which may arise from the expropriation.

The market value of the property is the price that may be agreed upon
by the parties willing but not compelled to enter into a contract of sale.

Among the factors to be considered in arriving at the fair market

value are:

1. cost of acquisition;
2. the current value of like proerties;
3. its actual or potential uses;
4. particular case of lands;
5. their size, shape, location; and
6. the tax declarations thereon.

Finally, note that as held in the case of Republic vs. Santos, 141 SCRA
30, the market value as recommended by the board of commissioners
appointed by the court were at best only ADVISORY AND PERSUASIVE
AND BY NO MEANS FINAL OR BINDING.

2. NHA vs. Reyes, 123 SCRA 245

3. Manotok vs. CA, May 21,1987
4. EPZA vs. Dulay, April 29,l987
5. Lagunzad vs. CA, 154 SCRA 199

When it is considered for "public use":

6. Sumulong vs. Guererro, 154 SCRA 461

7. Republic vs. CA, 154 SCRA 428
8.Cosculluela vs. CA, 164 SCRA 393

5. Requisite of "taking" in eminent domain cases

Read:

1. Rep. vs. Castellvi, 58 SCRA 336

Requisites of taking:
a. the expropriator must enter the property;
 211
b. the entrance must not be for just a momentary period;
c. the entry must be under warrant of color or title;
d. the property must be devoted for public use; and
e. the owner must be ousted from beneficial use of his land.

2. Ignacio vs. Guererro, 150 SCRA 369

3. Garcia vs. CA, 102 SCRA 597

6. Not a valid exercise of eminent domain

Read:

1. City of Manila vs. Chinese Community, 40 Phil. 349 ( A private

property which is devoted to public use may not be expropriated for another
public purpose.)

2. De Knecht vs. Bautista, 100 SCRA 660

REPUBLIC OF THE PHILIPPINES VS. CRISTINA

DE KNECHT AND THE COURT OF APPEALS,
G.R. NO. 87335, February 12, 1989

Expropriation

Gancayco, J.

Facts:

1. On February 20, 1979, the Rep. of the Philippines initiated an expropriation

proceedings against the owners of the houses standing along Fernando Rein-
Del Pan streets, among them Cristina de Knecht together with Concepcion
Cabarrus, and some other fifteen defendants in Civil Case No. 7001-P;

2. In June, 1979, the Republic of the Philippines prayed for the issuance of a
writ of possession of the property to be expropriated on the ground that it had
already deposited with the PNB 10% of the amount of compensation stated in
the complaint; that on June 14, 1979, the Lower Court issued a writ of
possession authorizing the Republic to enter into the properties condemned and
created a committee to determine just compensation;

3. On July 16, 1979, De Knecht went to the Supreme Court on a petition for
certiorari and prohibition directed against the June 14, 1979 order of the lower
court;

4. On October 30, 1980, the Supreme Court rendered its decision granting the
petition for certiorari and prohibition and directing that the Order of the
 212
respondent Judge dated June 14, 1979 be SET ASIDE and the respondent Judge
is permanently enjoined from taking any further action on Civil Case No. 7001-
P;

5. On August 8, 1981, the defendants in Civil Case No. 7001- moved for the
dismissal of said case since the decision of the Supreme Court is already final;

6. On September 2, 1983, the Republic moved for the dismissal of the case due
to the encatment of BP 340 expropriating the same properties for the same
purpose. On the same date, the Court dismissed the case. The defendants moved
for a reconsideration which the Court denied;

7. De Knecht appealed the Order dismissing the case to the Court of Appeals
who on December 28, 1988 issued its decision setting aside the Order appealed
from and dismissing the expropriation proceedings before the lower court on
the ground that the choice of the above-mentioned streets as the line through
which the EDSA should be extended is arbitrary and should not receive judicial
approval;

8. The Republic of the Philippines filed a Petition for Review with the Supreme
Court.

Issue:

Whether or not the legislature could still pass a law expropriating the lots of
the private respondents despite the existence of a final decision of the Supreme
Court which held that choice of their lot to be used as an extension of EDSA is
arbitrary?

Held:

It is true that there is already a final decision of the Supreme Court to the
effect that the choice of the Fernando Rein-Del Pan Streets is arbitrary and
should not receive judicial approval. However, it is equally true that the
Constitution and our laws may expropriate private properties after the payment
of just compensation. When on February 17, 1983, the Batasang Pambansa
passed BP 340 expropriating the same properties for the same purpose, IT
APPEARS THAT THE SAME WAS BASED ON SUPERVENING EVENTS
THAT OCCURRED after the decision of the SC in De Knecht vs. Bautista in
1980. The social impact factor which persuaded the Court to consider this
extension has disappeared because of the fact that the residents of the area have
been relocated and duly compensated and only DE KNECHT now is left while
her property is only about 5% of the area to be expropriated. The Republic
could continue it expropriation proceedings considering the supervening events
after the decision was rendered.

BP Bilang 340 THEREFORE EFFECTIVELY SUPERSEDED THE

AFORESAID FINAL AND EXECUTORY DECISION OF THE SUPREME
 213
COURT. X x x THE COURT AGREES IN THE WISDOM AND NECESSITY
OF ENACTING BP 340. THUS THE ANTERIOR DECISION OF THIS
COURT MUST YIELD TO THIS SUBSEQUENT LEGISLATIVE FIAT.

************************

Cruz, J., concurring

Supervening events have changed the factual basis of the SC's decision to
justify the subsequent enactment of the statute. If we are sustaining the
legislation, it is not because we concede that the lawmakers can nullify the
findings of the Court in the exercise of its discretion. It is simply because we
ourselves have found that under the changed situation, the present expropriation
is no longer arbitrary.

I MUST ADD THAT THIS DECISION IS NOT A REVERSAL OF THE

ORIGINAL DE KNECHT CASE, WHICH WAS DECIDED UNDER A
DIFFERENT SET OF FACTS.

3. REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT AND

THE COURT OF APPEALS, G.R. NO. 87335, February 12, 1989

3-a. Limitations of the power of expropriation, 3 SCRA 706

7. When shall we base the computation of the value of the property

expropriated: at the time of taking or at the time of the institution of the
expropriation proceedings?

8. Eminent domain cases, in general

Read:

1. City of Baguio vs. NAWASA, 106 Phil. 144

2. Garcia vs. CA, 102 SCRA 620
3. Municipality of Daet vs. CA, 93 SCRA 503
4. Salas vs. Jarencio, 46 SCRA 734
5. Arce vs. Genito, Feb. 27, 1976
6. Guido vs. RPA, 84 Phil. 847
7. Rep. vs. Baylosis, 96 Phil. 461
8. Mataas na Lupa vs. Dimayuga, 130 SCRA 30
9. San Diego vs. Valdellon, 80 SCRA 305
10. Haguisan vs. Emilia, 131 SCRA 517
11. Heirs of Ardona vs. Reyes, 125 SCRA 220
12. Commissioner vs. Burgos, March 31,1980
13. Republic vs. Juan, 92 SCRA 29
 214
CHAPTER XI - THE NON-IMPAIRMENT
CLAUSE

Section 10. No law impairing the obligation

of contracts shall be passed.

1. Read:

1. Kabiling, et al., vs. NHA, December 18,l987

2. Clements vs. Nolting, 42 Phil. 702
3. Co vs. PNB, 114 SCRA 842
4. Lozano vs. Martinez,146 SCRA 323
5. Rutter vs. Esteban,93 Phil. 68
6. Ilusorio vs. CAR, 17 SCRA 25
7. Ortigas vs. Feati Bank, 94 SCRA 533
8. Ganzon vs. Insierto, 123 SCRA 713
9. Del Rosario vs. De los Santos, March 21, 1968
10. Abella vs. NLRC, 152 SCRA 140
11. PVBEU vs. PVB, 189 SCRA 14

CHAPTER XII - RIGHTS DURING

CUSTODIAL INVESTIGATION

Section 11. Free access to the courts and

quasi-judicial bodies and adequate legal
assistance shall not be denied to any person
by reason of poverty.

Section 12. (1) Any person under

investigation for the commission of an offense
shall have the right to be informed of his right
to remain silent and to have competent and
independent counsel preferably of his own
choice. If the person cannot afford the
services of counsel, he must be provided with
one. These rights cannot be waived except in
writing and in the presence of counsel.

(2) No torture, force, violence, threat,

intimidation or any other means which vitiate
the free will shall be used against him. Secret
detention places, solitary, incommunicado, or
other similar forms of detention are
prohibited.
 215
(3) Any confession or admission
obtained in violation of this or Section 17
hereof shall be inadmissible in evidence
against him.

Rights of a person under “custodial detention” for one suspected or

arrested as a terrorist.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law,

Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15,
2007 (This Law shall be automatically suspended one (1) month before and two
(2) months after the holding of any election)

Section 21. Rights of a person under custodial detention.- The moment a

person charged with or suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism is apprehended or arrested and detained, he
shall forthwith be informed by the arresting police or law enforcement officers
to whose custody the person concerned is brought, of his or her right:

1. to be informed of the nature and cause of his arrest, to remain

silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel of his or her choice, the police or law enforcement
officers concerned shall immediately contact the free legal
assistance unit of the IBP or the Public attorney’s office (PAO). It
shall be the duty of the free legal assistance unit of the IBP or the
PAO’s thus contacted to immediately visit the person detained and
provide him with legal assistance. These rights cannot be waived
except in writing and in the presence of the counsel of choice;
2. informed of the cause or causes of his detention in the presence of
his legal counsel;
3. allowed to communicate freely with his legal counsel and to
confer with them at any time without restriction;
4. allowed to communicate freely and privately without restrictions
with the members of his family or with his nearest relatives and
be visited by them; and
5. allowed freely to avail of the services of a physician or physicians
of choice.

Section 23. Requirement for an official custodial logbook and its

contents.- The police or other law enforcement custodial unit in whose care and
control the person charged with or suspected of the crime of terrorism or the
crime of conspiracy to commit terrorism has been placed under custodial arrest
and detention shall keep a securely and orderly maintained official logbook,
which is hereby declared as public document and opened and made available
for inspection and scrutiny of the lawyer or lawyers of the person under custody
or any member of his family or relative by consanguinity within the fourth civil
 216
degree or his physician at any time of the day without any form of restriction.
The logbook shall contain a clear and concise record of:

1. name, description, and address of the detained person;

2. date and exact time of his initial admission for custodial arrest
and detention;
3. the name and address of the physician/s who examined him
physically and medically;
4. the state of his health and his physical condition a the time of his
initial admission for custodial detention;
5. the date and time of each removal of the detained person from his
cell for interrogation or for any purpose;
6. the date and time of his return to his cell;
7. name and address of the physician who examined him physically
and medically;
8. summary of the physical and medical findings after each
interrogation;
9. names and addresses of the members of his family and relatives;
10. names and addresses of the persons who visited him;
11. date and time of such visits;
12. date and time when the detained person requested to
communicate or confer with his lawyer;
13. the date and time of visits by his legal counsel and the date
and time of departure; and
14. all other important events bearing on all relevant details
regarding the treatment of the detained person while under
custodial arrest or detention.

Section 24. No torture or coercion in Investigation and interrogation. No

threat, intimidation, or coercion, and no act which will inflict any form of
physical pain or torment, or mental, moral, or psychological pressure on the
detained person which shall vitiate his free will shall be employed in his
investigation and interrogation; otherwise, the evidence obtained from said
detained person …shall be in its entirety, absolutely not admissible and usable
as evidence in any judicial, quasi-judicial, legislative, or administrative
investigation, inquiry, proceeding or hearing.

The summary of the rights of an accused during custodial

investigation (from the time of arrest) under the Constitution,
laws and jurisprudence.

Rights of the accused during custodial

investigation; obligations of the arresting
officers and investigators during and after
arrest; effect of non-compliance by the
investigators
 217
THE PEOPLE OF THE PHILIPPINES VS.
MAHINAY, G.R. No. 122485, February 1, 1999

En Banc

Per Curiam:

Considering the heavy penalty of death and in order to ensure that

evidence against an accused were obtained through lawful means, the
Court, as guardian of the rights of the people, lays down the PROCEDURE,
GUIDELINES, AND DUTIES WHICH THE ARRESTING, DETAINING,
INVITING OR INVESTIGATING OFFICER OR HIS COMPANIONS MUST
OBSERVE AT THE TIME OF MAKING THE ARREST AND AGAIN AT
AND DURING THE TIME OF THE CUSTODIAL INVESTIGATION OR
INTERROGATION IN ACCORDANCE with the Constitution, jurisprudence
and Republic Act No. 7438. It is high time to educate our law enforcement
agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the court must
update in the light of new legal developments.

1. The person arrested, detained, invited or under custodial

investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be shown
a copy of the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to and
understood by said person;

2. He must be warned that he has the right to remain silent and that any
statement he makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all times

and have the presence of an independent and competent lawyer,
preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot afford the

services of a lawyer, one will be provided for him; and that a lawyer
may also be engaged by any person in his behalf, or may be
appointed by the court upon petition of the person arrested or one
acting in his behalf;

5. That whether or not the person arrested has a lawyer, , he must be

informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;

6. The person arrested must be informed that, at any time, he has the
right to communicate or confer by the most expedient means---
 218
telephone, radio, letter or messenger---with his lawyer (either
retained or appointed), any member of his immediate family; or any
medical doctor, priest or minister chosen by him or by any one from
his immediate family or by his counsel, or be visited by/confer with
duly accredited national or international non-governmental
organization. IT SHALL BE THE RESPONSIBILITY OF THE
OFFICER TO ENSURE THAT THIS IS ACCOMPLISHED;

7. He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and
ensure that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he

must be informed that it must be done in writing AND in the
presence of counsel, otherwise, he must be warned that the waiver is
void even if he insist on his waiver and chooses to speak;

9. That the person arrested must be informed that he may indicate in

any manner at any time or state of the process that he does not wish
to be questioned with the warning that once he makes such
indication, the police may not interrogate him if the same had not
yet commenced, or the interrogation has begun;

10. The person arrested must be informed that his initial waiver of his
right to remain silent, the right to counsel or any of his rights does
not bar him from invoking it at any other time during the process,
regardless of whether he may have answered some questions or
volunteered some information or statements;

11. He must be informed that any statement OR EVIDENCE, as the

case may be, obtained in violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part, SHALL BE
INADMISSIBLE IN EVIDENCE.

(NOTE: Any violation of the foregoing rights of the accused shall entitle him to
sue for damages against the arresting or investigating officers in accordance
with RA7438, not to mention the possible criminal liability of said persons
under existing laws).

LATEST CASES ON THE RIGHTS OF A PERSON DURING

CUSTODIAL INVESTIGATION

Rights during custodial investigation; when custodial investigation is deemed to

have started; right to be informed of the nature and cause of accusation against
him.
 219
THE PEOPLE OF THE PHILIPPINES VS. JOSE
TING LAN UY, JR., et al., 475 SCRA 248

Ynares-Santiago, J.

Facts:

For allegedly diverting and collecting funds of the National Power

Corporation intended for the purchase of US Dollars from the United Coconut
Planters Bank (UCPB), the accused-appellants were charged of Malversation
through Falsification of Commercial Documents as defined and penalized under
Arts. 217 and 171 [8] in relation to Article 48 of the Revised Penal Code. After
trial, all accused were convicted by the Sandiganbayan.

While the Information charged the accused of willful and intentional

commission of the acts complained of while the Decision found the accused
guilty of inexcusable negligence.

Accused Ochoa interposed an appeal and claimed that his conviction was
based on his alleged sworn statement and the transcript of stenographic notes of
a supposed interview with an NPC personnel and the report of the NBI. He
maintains that he signed the sworn statement while confined a the Philippine
heart center and upon assurance that it would not be used against him. He was
not assisted by counsel nor he was apprised of his constitutional rights when he
executed the affidavit. He likewise claimed that his constitutional rights to be
informed of the nature and cause of accusation against and due process were
violated.

Held:

1. Even if the information charges willful malversation, conviction for

malversation through negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the offense. (Diaz vs.
Sandiganbayan, 302 SCRA 118). This was the doctrine laid down in the case of
Samson vs. Court of appeals, 103 Phil. 277.

2. The claim that his affidavit is inadmissible in evidence in accordance with

section 12 [1] of the Bill of Rights is not tenable. The “investigation” under said
provision refers to “custodial investigation where a suspect has already been
taken into police custody and that the investigating officers begin to ask
questions to elicit information and confessions or admissions from the suspect.
Succinctly stated, custodial investigation refers to the critical pre-trial stage
when the investigation ceases to be a general inquiry into an unsolved crime but
has began to focus on a particular person as a suspect (People vs. Duenas, Jr.,
426 SCRA 666). Clearly, therefore, the rights enumerated by the accused are
not available BEFORE GOVERNMENT INVESTIGATORS ENTER THE
 220
PICTURE. The protective mantle of section 12, article III does not apply to
administrative investigations (People vs. Judge Ayson, 175 SCRA 216);
confession to a private individual (Kimpo vs. CA, 232 SCRA 53); verbal
admission made to a radio announcer who was not a part of the investigation
(People vs. Ordono, 334 SCRA 673); or even to a Mayor approached as a
personal confidante and not in his official capacity (People vs. Zuela, 323
SCRA 589). In fact, even a videotaped interview where the accused willingly
admit his guilt in the presence of newsmen is not covered by the said provision
though the trial courts were warned by the supreme Court to take extreme
caution in admitting similar confessions because of the distinct possibility that
the police, with the connivance of unscrupulous media practitioners, may
attempt to legitimize coerced extrajudicial confessions and place them beyond
the exclusionary rule by having an accused admit an offense on television
(People vs. Endino, 353 SCRA 307).

Clearly, the confession of the accused was obtained during an administrative

investigation by NPC and therefore, the same was not covered by Section 12,
Art. III of the Constitution.

(NOTE: In People vs. Andam, the confession before a Municipal

Mayor was held admissible as wvidence).

PEOPLE VS. FIGUEROA, 335 SCRA 349

Under Art. III, Section 12 [1] of the Constitution, a suspect in custodial

investigation must be:

1. informed of his right to remain silent;

2. warned that anything he says can be and will be used against
him;
3. told that he has the right to counsel, and that if he is indigent, a
lawyer will be appointed to represent him.

In this case, accused-appellant was given no more than a perfunctory

recitation of his rights, signifying nothing more than a feigned compliance with
the constitutional requirements. (People vs. Samolde, July 31, 2000)

It is always incumbent on the prosecution to prove at the trial that, prior to

in-custody questioning, the confessant was informed of his constitutional rights.
The presumption of regularity of official acts does not prevail over the
constitutional presumption of innocence. Hence, in the absence of proof that the
arresting officers complied with the above constitutional safeguards,
extrajudicial statements, whether inculpatory or exculpatory, made during the
custodial investigation, are inadmissible not only against the DECLARANT but
with more so against 3rd persons. THIS IS SO EVEN IF SUCH STATEMENTS
ARE GOSPEL TRUTH AND VOLUNTARILY GIVEN.
 221
Such statements are useless EXCEPT AS EVIDENCE AGAINST THE
VERY POLICE AUTHORITIES WHO VIOLATED THE SUSPECT’S
RIGHTS.

PEOPLE VS. BARIQUIT, 341 SCRA 600

When custodial investigation is deemed to have started.

The protection under Section 12 , Art. III of the Constitution begins when
a person is taken into custody for investigation of his possible participation in
the commission of a crime, or from the time he is singled out as a suspect in the
commission of the crime, although not yet in custody.

Custodial investigation begins when it is no longer a general inquiry into

an unsolved crime but starts to focus on a particular person as a suspect, i.e.,
when the police investigator starts interrogating or exacting confession from the
suspect in connection with an alleged offense.

THE PLACE OF INTERROGATION IS NOT DETERMINATIVE

OF THE EXISTENCE OR ABSENCE OF CUSTODIAL
INVESTIGATION BUT THE TONE AND MANNER OF QUESTIONING
BY THE POLICE AUTHORITIES. Thus, there was custodial investigation
when the police authorities, upon their arrest of some of the accused,
immediately asked them regarding their participation in the commission of the
crime , even while they were still walking along the highway on their way to
the police station. This is line with the provisions of RA 7438 which makes it
applicable even when a person is merely invited for questioning.

PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA

515, SEPT. 1, 2000; PEOPLE VS. MAYORGA, G.R.
NO. 135405, 346 SCRA 458, NOVEMBER 29, 2000.

However, spontaneous statements voluntarily given, as where appellant

orally admitted killing the victim before the barangay captain (who is neither a
police officer nor a law enforcement agent), do not fall under custodial
investigation. Such admission, even without the assistance of a lawyer, does not
violate appellant’s constitutional rights AND THEREFORE ADMISSIBLE IN
EVIDENCE.

PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA

515, SEPT. 1, 2000; PEOPLE VS. SAMOLDE, G.R.
NO. 128551, 336 SCRA 632, JUL. 31, 2000.

To be admissible in evidence, an extrajudicial confession must be:

(i) voluntary;
 222
(ii) made with the assistance of competent and independent
counsel;
(iii) express; and
(iv) in writing.

A suspect’s confession, whether verbal or non-verbal, when taken without

the assistance of counsel, without a valid waiver of such assistance, regardless
of the absence of coercion or the fact that it had been voluntarily given, is
inadmissible in evidence, even if appellant’ s confession were gospel truth.

2. Guidelines for police investigation

Read:

1.Escobedo vs. Illinois, 378 US 478

2. Miranda vs. Arizona, 384 US 436
3. P. vs. Duero, 104 SCRA 379

2-a. Duties of the Police or Arresting Officers

Read:

1. P. vs. Matos-Viduya, Sept. 11, 1990

1-a. P vs. Nicandro, 141 SCRA 289
2. P vs. Duhan, 142 SCRA 100
3. P vs. Caguioa, 95 SCRA 2
4. P vs. Ramos, 122 SCRA 312

3. To be informed of the Right to remain silent; cases in particular

Read:

1. Constitutional right to remain silent,104 SCRA 391

1-a. People vs. Marcos Jimenez, Dec. 10, 1991

Extrajudicial confession; counsel of choice

Right to counsel during custodial investigation; while making an extrajudicial

confession

PEOPLE VS. PATUNGAN, 354 SCRA 413

The accused was under coercive and uncounselled custodial investigation

by the police without a lawyer for 2 and a half days . Then, he was brought to
the IBP Office where a lawyer assisted him in his extrajudicial confession.
 223
We are inclined to believe that when he was brought to the IBP Office, his
body and his will were in no position to raise any objection much less to
complaint to the IBP lawyer about what he has gone through. In fact, the IBP
lawyer was working on an appeal in another case while the extrajudicial
confession was being taken.

The mere presence of a lawyer is not sufficient compliance with the

constitutional requirement of assistance of counsel. Assistance of counsel must
be effective, vigilant and independent. A lawyer who could just hear the
investigation going on while working on another case hardly satisfies the
minimum requirements of effective assistance of counsel. Not only was the
accused subjected to custodial investigation without counsel, he was likewise
denied effective assistance of counsel during the taking of his extra-judicial
confession.

PEOPLE V. JIMENEZ
G.R.No. 82604. December 10, 1991

NARVASA, J.:

FACTS:
-----------

On August 13, 1985, police authorities, acting upon a report, came upon
the corpse of Pelagio Jimenez below a cliff near a balite tree. The police
investigators learned that Marcos, the son of the deceased Pelagio Jimenez told
his mother that his father had not come home the previous night: that the search
for the deceased, who was living separately from them, commenced a day
earlier but it was not until the morning of the following day, August 13, 1985,
that deceased Pelagio was finally found dead. They also learned from the
persons they interviewed of circumstances that drew their suspicion to the son,
Marcos and Robert, such as; the bathing at the artisian well "as if washing away
stains of blood"; the deceased's violent quarrels with his children and occasions
that he had been boxed and hit by his children. The police had invited the
deceased's widow and her sons for questioning about the killing. A draft of the
confession was prepared by the investigating officer but Marcos was not able to
sign the same due to the absence of the judge before whom it is supposed to be
sworn and signed. Marcos agreed to come back and sign his statement, but
upon his return, he, assisted by a former judge whose presence was requested
by the police authorities, refused to sign his statement. Subsequently, an
information for parricide was filed against the widow and her sons, Marcos,
Robert, and Wilkins. In an order dated July 21, 1986, the trial court absolved
the widow and Wilkins of any participation in the filling for lack of proof. On
December 12. 1986, the trial court found Marcos and Robert guilty beyond
reasonable doubt of the crime of parricide, noting that the unsigned confession
 224
is admissible in evidence inasmuch as evidence aliunde corroborated such
confession. Both accused contest such ruling. Hence this appeal.

ISSUE:
----------

Is the extrajudicial confession of Marcos admissible in evidence?

HELD:
---------

No. Decision reversed.

Section 12 (1), Article III OF THE 1987 Constitution declares that a

person being investigated by the police as a suspect in an offense has the right,
among others, (1) to have a competent and independent counsel of his own
choice and if he cannot afford the services of counsel, he must be provided with
one; and that (2) said right cannot be waived except in writing and in the
presence of counsel.

The lawyer who assists the suspect under custodial interrogation

should be of the latter's own choice, not one foisted on him by the police
investigators or other parties. In this case, the former judge whose
assistance was requested by the police was evidently not of Marcos
Jimenez' own choice; she was the police officers' own choice; she did not
ask Marcos if was is willing to have her represent him. This is not the mode
of solicitation of legal assistance contemplated by the constitution.

Furthermore, the former judge was not present when Marcos was being
interrogated by the police. While she asked him if he had voluntarily given the
statements contained in the typewritten document, this is far from being
substantial compliance with the constitutional duty of police investigators
during custodial interrogation.

The typewritten confession is unsigned and was in fact expressly rejected

by Marcos. Hence, the supposed waiver made therein of his constitutional right
to counsel of his own choice.

Neither can the confession prejudice his co-accused, his brother Robert,
not only because it was obtained in violation of the constitution but also
because of the principle of res inter alios acta.

The interrogation of Marcos Jimenez having been conducted without the

assistance of counsel, and no valid waiver of such right to counsel have been
made, not only the confession but also any admissible obtained in the course
thereof are inadmissible against him or his co accused. In view of the
inadmissibility in evidence of the confession, the rest of the evidence of the
 225
prosecution is inadequate to overcome the presumption of innocence raised by
the fundamental law in favor of both the accused.

Extrajudicial confession without the assistance of counsel, inadmissible as

evidence; exception

PEOPLE VS. PANFILO CABILES, 284 SCRA 199;

PEOPLE VS. TAN, 286 SCRA 207

Melo, J.

Even if the confession of the accused speaks of the truth, if it was made
without the assistance of counsel, it is inadmissible in evidence regardless of
the absence of coercion or even if it was voluntarily given.

In order that a confession is admissible, the following requisites must be

present:

a. the confession must be voluntary;

b. the confession must be made with the assistance of a competent
and independent counsel;
c. the confession must be express; and
d. the confession must be in writing.

The above requirements, however, are not applicable when the suspect
makes an spontaneous statement, not elicited through questioning by the
authorities, BUT GIVEN IN AN ORDINARY MANNER WHEREBY THE
ACCUSED ORALLY ADMITTED HAVING COMMITTED THE CRIME.
This was the decision of the Supreme Court in the case of PEOPLE VS.
ANDAN, March 3, 1997 when the accused made a voluntary and verbal
confession to the Municipal Mayor that he committed the crime imputed to
him. As such, his uncounselled confession is admissible in evidence.

PEOPLE VS. OBRERO, 332 SCRA 190

Mendoza, J.

There are two (2) kinds of involuntary or coerced confessions under Art.
III, Section 12 of the Constitution. These are:

a. confession which are the product of third degree methods such as

torture, force, violence, threat, intimidation; and
b. those which are given without the benefit of Miranda Warnings.

There is no compliance of the constitutional requirement of competent

and independent counsel to assist an accused during custodial investigation
when the accused was assisted by the Station Commander of the WPD, Atty. De
 226
los Reyes, while being investigated by other policemen of the same police
station because the interest of the police is naturally adverse to the accused. In
fact, the SC in the case of PEOPLE VS. JANUARIO, 267 SCRA 608 held that
a lawyer applying for a position in the NBI could not validly assist an accused
being investigated then by the NBI.

1-b. P. vs. Aspili, November 21, 1990

1-c. People vs. Judge Ayson, 175 SCRA 216 (Confession made to the
officials of Philippine Airlines during an investigation is admissible in
evidence despite the fact that he was not informed of his rights during
custodial investigations since said officials are not bound by the
requirements of Section 12, Art. III of the Constitution)
1-d. P. vs. Pinlac, 165 SCRA 675
1-e. People vs. Loveria, 187 SCRA 47
1-f. Gamboa vs. Judge Cruz, 162 SCRA 675
2. P. vs. Galit, 135 SCRA 465
3. P vs. Alegre, 94 SCRA 109
4. Draculan vs. Donato, 85 SCRA 266
5. P. vs. Borromeo, June 29,l983
6. P vs. Camalog, GR No. 77116, January 31, 1989
(Including the duty of Police Officers in connection with said right)
7. P vs. Cui, Jr., 162 SCRA 220

3-a. How about if the accused gives an spontaneous statement before he could
be advised of his right to remain silent?

Read:

Aballe vs. People, 183 SCRA 196

3-b. When shall the constitutional rights of the accused as mentioned above
demandable? During police line-up?

Read:

1. P vs. Usman Hassan, 157 SCRA 261

2. Gamboa vs. Judge Cruz, 162 SCRA 642
2 3. DE LA TORRE VS. CA, 294 SCRA 196
4. PEOPLE VS. HATTON

4. The right to counsel; Waiver of the right to counsel/exceptions/requisites

PEOPLE VS. JEREZ, 285 SCRA 393

A lawyer provided by the investigators to the accused during the custodial

investigation is deemed engaged by the accused where he never raised any
objection against the former’s appointment during the course of the
 227
investigation AND THE ACCUSED THEREAFTER SUBSCRIBES TO THE
VERACITY OF HIS STATEMENT BEFORE THE SWEARING OFFICER.

(NOTE: In the case of PEOPLE VS. JUANERIO, February 7, 1997,

the SC held that a lawyer who was at the NBI Office applying for a position
therein and who was appointed as counsel for a suspect being then investigated
by the NBI could not be considered as the competent and independent counsel
referred to in the Constitution especially so that later on, said lawyer was
appointed by the NBI as one of its agents.)

The next case is very important. It diminishes the right to counsel

during custodial investigation and makes the work of the investigator easier to
make the confession of a suspect admissible as evidence. It is obviously a
reversal of the People vs. Juanerio ruling.

RIGHT TO A COMPETENT AND

INDEPENDENT COUNSEL OF HIS
OWN CHOICE

PEOPLE OF THE PHILIPPINES VS. DOMINGO

REYES, ET AL., G.R. No. 178300, March 17, 2009

CHICO-NAZARIO, J.:
On 11 August 1999, an Information250[4] was filed before the RTC charging
appellants with the special complex crime of kidnapping for ransom with
homicide. The accusatory portion of the information reads:

The undersigned State Prosecutor of the Department of Justice

hereby accuses Domingo Reyes y Paje, Alvin Arnaldo y Avena and
Joselito Flores y Victorio of the crime of kidnapping for ransom
with homicide defined and penalized under Article 267 of the
Revised Penal Code, as amended, committed as follows:

That on or about 11:00 p.m. on July 16, 1999, at Sitio

Lambakin, barangay Sto. Cristo, San Jose del Monte, Bulacan,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and mutually
helping one another and grouping themselves together with Juanito
Pataray y Cayaban, Federico Pataray y Cabayan and Rommel
Libarnes y Acejo, who are still at large, did then and there willfully,
unlawfully and feloniously, by means of force and intimidation and
with use of firearms, carry away and deprive Robert Yao, Yao San,
Chua Ong Ping Sim, Raymond Yao, Ronald Matthew Yao, Lennie
Yao, Charlene Yao, Jona Abagatnan ang Josephine Ortea against
their will and consent on board their Mazda MVP van for the

250[4] Records, pp. 42-43.

 228
purpose of extorting money in the amount of Five Million Pesos
(P5,000,000.00), that during the detention of Chua Ong Ping Sim
and Raymong Yao, said accused with intent to kill, willfully and
unlawfully strangled Chua Ong Ping Sim and Raymond Yao to death
to the damage and prejudice of their heirs in such amount as may be
awarded to them by this Honorable Court.

The prosecution presented as witnesses Jona Abagatnan (Abagatnan),

Robert Yao (Robert), Yao San, Police Officer 3 (PO3) Alex Alberto, PO3
Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and Atty. Carlo Uminga
(Atty. Uminga). Their testimonies, taken together, attest to the following:

The Yao family is composed of Yao San (father), Chua Ong Ping Sim
(mother), Robert and Raymond (children), Lenny (daughter-in-law, wife of
Robert), Matthew and Charlene (grandchildren), and Jona Abagatnan and
Josephine Ortea (housemaids). The Yao family owns and operates a poultry
farm in Barangay Santo Cristo, San Jose del Monte, Bulacan.

On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda
MVP van, arrived at the their poultry farm in Barangay Sto. Cristo, San Jose del
Monte, Bulacan. Yao San alighted from the van to open the gate of the farm.
At this juncture, appellant Reyes and a certain Juanito Pataray (Pataray)
approached, poked their guns at Yao San, and dragged him inside the van.
Appellant Reyes and Pataray also boarded the van. Thereupon, appellants
Arnaldo and Flores, with two male companions, all armed with guns, arrived
and immediately boarded the van. Appellant Flores took the driver’s seat and
drove the van. Appellants Reyes and Arnaldo and their cohorts then
blindfolded each member of the Yao family inside the van with packaging
tape.251[6]

After about 30 minutes of traveling on the road, the van stopped. Per
order of appellants and their cohorts, Chua Ong Ping Sim, Robert, Raymond
and Jona Abagatnan (Abagatnan) stepped out of the van with appellants Reyes
and Arnaldo, Pataray and one of their male companions. 252[7] Appellant Flores,
with the other male companion, drove the van with the remaining members of
the Yao family inside the vehicle.253[8]

Later, the van stopped again. Appellant Flores and his male companion
told Yao San to produce the amount of five million pesos (P5,000,000.00) as
ransom in exchange for the release of Chua Ong Ping Sim, Robert, Raymond
and Abagatnan. Thereafter, appellant Flores and his male companion left the
van and fled; while Yao San, Lenny, Matthew, Charlene and Josephine
remained inside the van. Upon sensing that the kidnappers had already left,
Yao San drove the van towards the poultry farm and sought the help of
relatives.254[9]
251[6] TSN, 26 October 1999, pp. 3-14; TSN, 11 August 2000, pp. 3-7; TSN, 21 September 2000, pp. 2- 8.
252[7] TSN, 26 October 1999, pp. 16-17; TSN, 11 August 2000, p. 7.
253[8] Records, p. 34.
254[9] Id.
 229

Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were
taken on foot by appellants Reyes and Arnaldo, Pataray and one male
companion to a safe-house situated in the mountainous part of San Jose Del
Monte, Bulacan where they spent the whole night.255[10]

On the morning of the following day, at around 4:00 a.m., appellants and
their cohorts tried to contact Yao San regarding the ransom demanded, but the
latter could not be reached. Thus, appellants instructed Abagatnan to look for
Yao San in the poultry farm. Appellants Reyes and Arnaldo and one male
companion escorted Abagatnan in proceeding to the poultry farm. Upon
arriving therein, Abagatnan searched for Yao San, but the latter could not be
found. Appellants Reyes and Arnaldo told Abagatnan to remind Yao San about
the ransom demanded. Thereafter, appellants Reyes and Arnaldo and their male
companion left Abagatnan in the poultry farm and went back to the safe-
house.256[11]

In the safe-house, appellants told Robert that they would release him so he
could help Abagatnan in locating Yao San. Robert and appellants left the safe-
house, and after 30 minutes of trekking, appellants abandoned Robert. Robert
then ran towards the poultry farm. Upon arriving at the poultry farm, Robert
found Yao San and informed him about the ransom demanded by the appellants.
Robert also told Yao San that Chua Ong Ping Sim and Raymond were still held
by appellants and their cohorts.257[12]

On 18 July 1999, appellants called Yao San through a cellular phone and
demanded the ransom of P5 million for Chua Ong Ping Sim and Raymond. Yao
San acceded to appellants’ demand. Appellants allowed Yao San to talk with
Chua Ong Ping Sim.258[13]

On the morning of 19 July 1999, appellants again called Yao San via a
cellular phone and threatened to kill Chua Ong Ping Sim and Raymond because
of newspaper and radio reports regarding the incident. Yao San clarified to
appellants that he did not report the incident to the police and also pleaded with
them to spare the life of Chua Ong Ping Sim and Raymond. Appellants then
instructed Yao San to appear and bring with him the ransom of P5 million at
3:00 p.m. in the Usan dumpsite, Litex Road, Fairview, Quezon City. Yao San
arrived at the designated place of the pay-off at 4:00 p.m., but none of the
appellants or their cohorts showed up. Yao San waited for appellant ’s call, but
none came. Thus, Yao San left.259[14]

255[10] TSN, 26 October 1999, pp. 16-23; TSN, 7 December 1999, pp. 2-5; TSN, 11 August 2000, pp. 8- 9.
256[11] TSN, 7 December 1999, pp. 4-7.
257[12] Id. at 7-8; TSN, 11 August 2000, pp. 10-12.
258[13] Records, p. 35.
259[14] Id; TSN, 11 August 2000, pp. 12-14.
 230
On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were
found at the La Mesa Dam, Novaliches, Quezon City.260[15] Both died of
asphyxia by strangulation.261[16]

On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-

Organized Crime Task Force (PAOCTF) at Camp Crame, Quezon City.
Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga, executed a
written extra-judicial confession narrating his participation in the incident.
Appellant Arnaldo identified appellants Reyes and Flores, Pataray and a certain
Tata and Akey as his co-participants in the incident. Appellant Arnaldo also
described the physical features of his cohorts and revealed their whereabouts. 262
[17]

Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del
Monte, Bulacan. Thereafter, appellants Arnaldo and Reyes were identified in a
police line-up by Yao San, Robert and Abagatnan as their kidnappers.263[18]

On 10 August 1999, agents of the PAOCTF arrested appellant Flores in

Balayan, Batangas. Afterwards, appellant Flores, with the assistance of Atty.
Rous, executed a written extra-judicial confession detailing his participation in
the incident. Appellant Flores identified appellants Reyes and Arnaldo, Pataray
and a certain Tata and Akey as his co-participants in the incident. Appellant
Flores was subsequently identified in a police line-up by Yao San, Robert and
Abagatnan as one of their kidnappers.264[19]

For its part, the defense presented the testimonies of appellants, Marina
Reyes, Irene Flores Celestino, Wilfredo Celestino, Jr., Rachel C. Ramos, and
Isidro Arnaldo. Appellants denied any liability and interposed alibis and the
defense of frame-up. Their testimonies, as corroborated by their witnesses, are
as follows:

Appellant Arnaldo testified that he was an “asset” of the PAOCTF. He

narrated that on 25 July 1999, while he was at the tricycle terminal of Brgy. Sto.
Cristo, San Jose del Monte, Bulacan, a police officer named Liwanag of the
PAOCTF approached and invited him to go to Camp Crame to shed light on a
kidnapping case allegedly committed by a certain Brgy. Captain Ramos and by
members of the Aguirre and Bautista families. He accepted the invitation.
Subsequently, he proceeded to Camp Crame and met therein Colonel Cesar
Mancao III (Colonel Mancao) of the PAOCTF. Colonel Mancao told him that
the PAOCTF would arrest Brgy. Capt. Ramos and certain persons named Gerry
Bautista and Dadie Bautista. Colonel Mancao instructed him to identify said
persons as responsible for the kidnapping of the Yao family. He refused to do
so because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao called
appellant Arnaldo to his office. Upon arriving thereat, the latter saw Yao San.
260[15] TSN, 7 December 1999, pp. 8-9; TSN, 11 August 2000, pp. 14-15; Records, p. 35.
261[16] Records, pp. 15-17.
262[17] Id. at 5, 8, 12, & 24-28.
263[18] Id. at 13-14 & 33, 35, & 38.
264[19] Id. at 46-48, 63-64 & 302-306.
 231
Yao San promised him that if their kidnappers would be apprehended through
his cooperation, he would give him P500,000.00. He accepted Yao San’s offer
under the condition that he would identify a different set of suspects. Later,
Colonel Mancao gave him P30,000.00.265[31]

Subsequently, he pointed to appellants Reyes and Flores as his cohorts in

kidnapping the Yao family. He implicated appellants Reyes and Flores to get
even with them, since the two had previously mauled him after he sold their
fighting cocks and failed to give them the proceeds of the sale.266[32]

He denied having met with Atty. Uminga. He was not assisted by the
latter when he was forced by the PAOCTF to make a written extra-judicial
confession on the kidnapping of the Yao family. Further, he claimed that while
he was under the custody of PAOCTF, a certain Major Paulino utilized him as a
drug pusher. Upon failing to remit the proceeds of the drug sale, he was beaten
up by PAOCTF agents and thereafter included as accused with appellants Reyes
and Flores for the kidnapping of the Yao family.267[33]

On the other hand, appellant Reyes testified that he slept in his house with
his family from 6:00 p.m. of 16 July 1999 until the morning of the next day;
that on the early morning of 26 July 1999, five policemen barged into his house
and arrested him; that the policemen told him that he was a suspect in the
kidnapping of the Yao family; that he was mauled by the policemen outside his
house; that the policemen forcibly brought him to Camp Crame, where he was
subsequently tortured; that he knew the Yao family because he worked as a
carpenter in the family’s poultry farm at Brgy. Sto. Cristo, San Jose del Monte,
Bulacan; that he had no involvement in the kidnapping of the family; and that
appellant Arnaldo implicated him in the kidnapping of the family because
appellant Arnaldo held a grudge against him.268[34]

For his part, appellant Flores testified that he stayed in his sister ’s house at
Antipolo City from 12 July 1999 up to 30 July 1999; that he went to her house
on 12 July 1999 because it was the birthday of her child; that he worked as a
construction worker during his stay in his sister’s house; that he was arrested in
Batangas and thereafter brought to Camp Crame, where he was beaten up by
policemen for refusing to admit involvement in the kidnapping of the Yao
family; that after three days of beating, he was forced to sign a document which
he later found out to be a written extra-judicial confession; that he never met
nor did he know Atty. Rous; that he knew the Yao family because he lived near
the family’s poultry farm, and he used to work therein as a welder; that he had
no participation in the kidnapping of the family; and that appellant Arnaldo
implicated him in the kidnapping of the family because he and appellant Reyes
had mauled appellant Arnaldo several years ago.269[35]

265[31] TSN, 7 June 2001, pp. 3-21.

266[32] TSN, 10 July 2001, pp. 3-6.
267[33] Id. at 10-16; TSN, 21 August 2001, pp. 3-14.
268[34] TSN, 6 March 2001, pp. 3-10.
269[35] TSN, 24 May 2001, pp. 2-9.
 232
The defense proffered documentary and object evidence to buttress their
foregoing claims, to wit: (1) prayer booklet of appellant Arnaldo (Exhibit 1 for
appellant Arnaldo);270[36] (2) calling card of Colonel Mancao (Exhibit 2 for
appellant Arnaldo);271[37] and (3) pictures allegedly showing appellant Flores
working as a carpenter in Antipolo City (Exhibits 1 & 2 for appellant Flores). 272
[38]

After trial, the RTC rendered a Decision dated 26 February 2002

convicting appellants of the special complex crime of kidnapping for ransom
with homicide and sentencing each of them to suffer the supreme penalty of
death. Appellants were also ordered to pay jointly and severally the Yao family
P150,000.00 as civil indemnity, P500,000.00 as moral damages and the costs of
the proceedings. The dispositive portion of the RTC Decision reads:

WHEREFORE, finding herein three (3) accused DOMINGO

REYES y PAJE, ALVIN ARNALDO y AVENA, and JOSELITO
FLORES y VICTORIO guilty as principals beyond reasonable doubt
of the crime of KIDNAPPING FOR RANSOM WITH (DOUBLE)
HOMICIDE as charged, they are hereby sentenced each to suffer the
supreme penalty of DEATH as mandated by law, to jointly and
severally indemnify the heirs of deceased Chua Ong Ping Sim and
Raymond Yao in the amount of One Hundred Fifty Thousand Pesos
(P150,000.00), and all the private offended parties or victims,
including the heirs of the deceased, in the amount of Five Hundred
Thousand Pesos (P500,000.00) as moral damages, subject to the
corresponding filing fee as a first lien, and to pay the costs of the
proceedings.273[39]

By reason of the death penalty imposed on each of the appellants, the

instant case was elevated to us for automatic review. However, pursuant to our
ruling in People v. Mateo,274[40] we remanded the instant case to the Court of
Appeals for proper disposition.

On 14 August 2006, the Court of Appeals promulgated its Decision

affirming with modifications the RTC Decision. The appellate court reduced
the penalty imposed by the RTC on each of the appellants from death penalty to
reclusion perpetua without the possibility of parole. It also decreased the
amount of civil indemnity from P150,000.00 to P100,000.00. Further, it
directed appellants to pay jointly and severally the Yao family P100,000.00 as
exemplary damages. The fallo of the Court of Appeals’ decision states:

WHEREFORE, premises considered, the Decision of the

Regional Trial Court of Malolos, Bulacan, Branch 12, dated
February 26, 2002, in Criminal Case No. 1611-M-99 convicting
270[36] Records, Volume VI, Index of Exhibits.
271[37] Id.
272[38] Records, p. 357.
273[39] CA rollo, p. 61.
274[40] G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
 233
accused-appellants of the crime of Kidnapping For Ransom with
(Double) Homicide, is hereby AFFIRMED with MODIFICATIONS
in that:

1) accused-appellants are instead sentenced to suffer the

penalty of reclusion perpetua;

2) the award of civil indemnity ex delicto is hereby reduced

to P100,000; and

3) accused-appellants are further ordered to pay private

complainants the amount of P100,000.00 as exemplary damages.275
[41]

Appellants filed a motion for reconsideration of the Court of Appeals’

Decision but this was denied. Hence, appellants filed their Notice of Appeal on
25 August 2006.

One of the main issues raised is:

THE TRIAL COURT ERRED IN GIVING WEIGHT AND

CREDENCE TO THE EXTRA-JUDICIAL CONFESSIONS OF
APPELLANT ARNALDO AND APPELLANT FLORES;

Appellant Reyes claims that his alleged participation in the kidnapping of

the Yao family was based solely on the written extra-judicial confessions of
appellants Arnaldo and Flores. He maintains, however, that said extra-judicial
confessions are inadmissible in evidence, because they were obtained in
violation of his co-appellants’ constitutional right to have an independent
counsel of their own choice during custodial investigation. Appellant Reyes
alleges that the agents of the PAOCTF did not ask his co-appellants during the
custodial investigation whether they had a lawyer of their own choice, and
whether they could afford to hire a lawyer; that the agents of the PAOCTF
suggested the availability of Atty. Uminga and Atty. Rous to his co-appellants;
and that Atty. Uminga and Atty. Rous were associates of the PAOCTF.
Appellant Reyes also asseverates that the extra-judicial confessions of
appellants Arnaldo and Flores cannot be utilized against him.

Appellant Flores argues that his written extra-judicial confession is

inadmissible in evidence, because it was obtained in violation of his
constitutional right to have an independent counsel of his own choice during
custodial investigation. He insists that his written extra-judicial confession was
elicited through force, torture and without the assistance of a lawyer. He avers
that he was not assisted by any lawyer from the time he was arrested until he
was coerced to sign the purported confession; that he was forced to sign it
because he could not anymore endure the beatings he suffered at the hands of

275[41] Rollo, p. 34.

 234
the PAOCTF agents; and that he never met or knew Atty. Rous who, according
to the PAOCTF, had assisted him during the custodial investigation.

Appellant Arnaldo contends that his written extra-judicial confession

should be excluded as evidence, as it was procured in violation of his
constitutional right to have an independent counsel of his own choice during
custodial investigation. He claims that he was not given freedom to choose his
counsel; that the agents of the PAOCTF did not ask him during the custodial
investigation whether he had a lawyer of his own choice, and whether he could
afford to hire a lawyer; and that the agents of the PAOCTF suggested the
availability of Atty. Uminga to him.

Thus, we have held that an extra-judicial confession is admissible in

evidence if the following requisites have been satisfied: (1) it must be
voluntary; (2) it must be made with the assistance of competent and
independent counsel; (3) it must be express; and (4) it must be in writing. 276
[67]

The right of an accused to be informed of the right to remain silent and to

counsel contemplates the transmission of meaningful information rather
than just the ceremonial and perfunctory recitation of an abstract
constitutional principle.277[69] Such right contemplates effective
communication which results in the subject understanding what is conveyed. 278
[70]

The right to counsel is a fundamental right and is intended to preclude the

slightest coercion as would lead the accused to admit something false. 279[71] The
right to counsel attaches upon the start of the investigation, i.e., when the
investigating officer starts to ask questions to elicit information and/or
confessions or admissions from the accused.280[72] The lawyer called to be
present during such investigation should be, as far as reasonably possible, the
choice of the accused. If the lawyer is one furnished in behalf of accused, he
should be competent and independent; that is, he must be willing to fully
safeguard the constitutional rights of the accused. 281[73] A competent and
independent counsel is logically required to be present and able to advice and
assist his client from the time the latter answers the first question asked by the
investigator until the signing of the confession. Moreover, the lawyer should
ascertain that the confession was made voluntarily, and that the person under
investigation fully understood the nature and the consequence of his extra-
judicial confession vis-a-vis his constitutional rights. 282[74]

However, the foregoing rule is not intended to deter to the accused from
confessing guilt if he voluntarily and intelligently so desires, but to protect him
276[67] People v. Base, 385 Phil. 803, 815 (2000).
277[69] People v. Sayaboc, 464 Phil. 824, 839 (2004).
278[70] People v. Agustin, 310 Phil. 594, 612 (1995).
279[71] People v. Olermo, 454 Phil. 147, 165 (2003).
280[72] Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988, 162 SCRA 642, 653.
281[73] People v. Deniega, G.R. No. 103499, 29 December 1995, 251 SCRA 626, 637.
282[74] People v. Velarde, 434 Phil. 102, 119 (2002).
 235
from admitting what he is being coerced to admit although untrue. To be an
effective counsel, a lawyer need not challenge all the questions being
propounded to his client. The presence of a lawyer is not intended to stop an
accused from saying anything which might incriminate him; but, rather, it
was adopted in our Constitution to preclude the slightest coercion on the
accused to admit something false. The counsel should never prevent an
accused from freely and voluntarily telling the truth.283[75]

We have gone over the records and found that the PAOCTF investigators
have duly apprised appellants Arnaldo and Flores of their constitutional rights
to remain silent and to have competent and independent counsel of their own
choice during their respective custodial investigations.

The Pasubali284[76] of appellants Arnaldo and Flores’s written extra-judicial

confessions clearly shows that before they made their respective confessions,
the PAOCTF investigators had informed them that the interrogation about to be
conducted on them referred to the kidnapping of the Yao family. Thereafter, the
PAOCTF agents explained to them that they had a constitutional right to remain
silent, and that anything they would say may be used against them in a court of
law. They were also told that they were entitled to a counsel of their own
choice, and that they would be provided with one if they had none. When
asked if they had a lawyer of their own, appellant Arnaldo replied that he would
be assisted by Atty. Uminga, while appellant Flores agreed to be represented by
Atty. Rous. Thereafter, when asked if they understood their said rights, they
replied in the affirmative. The appraisal of their constitutional rights was done
in the presence of their respective lawyers and in the Tagalog dialect, the
language spoken and understood by them. Appellants Arnaldo and Flores and
their respective counsels, Atty. Uminga and Atty. Rous, also signed and
thumbmarked the extra-judicial confessions. Atty. Uminga and Atty. Rous
attested to the veracity of the afore-cited facts in their respective court
testimonies.285[77] Indeed, the appraisal of appellants’ constitutional rights was
not merely perfunctory, because it appeared certain that appellants had
understood and, in fact, exercised their fundamental rights after being informed
thereof.

Records reflect that appellants Arnaldo and Reyes were likewise accorded
their right to competent and independent counsel during their respective
custodial investigations.

As regards appellant Arnaldo, Atty. Uminga testified that prior to the

questioning of appellant Arnaldo about the incident, Atty. Uminga told the
PAOCTF investigators and agents to give him and appellant Arnaldo space and
privacy, so that they could freely converse. After the PAOCTF investigators
and agents left them, he and appellant Arnaldo went to a cubicle where only the
two of them were present. He interviewed appellant Arnaldo in the Tagalog

283[75] People v. Base, supra note 67.

284[76] Records, pp. 312-318.
285[77] TSN, 25 September 2001 and 27 September 2001.
 236
language regarding the latter’s personal circumstances and asked him why he
was in the PAOCTF office and why he wanted a lawyer. Appellant Arnaldo
replied that he wanted to make a confession about his participation in the
kidnapping of the Yao family. Thereupon, he asked appellant Arnaldo if the
latter would accept his assistance as his lawyer for purposes of his confession.
Appellant Arnaldo agreed. He warned appellant Arnaldo that he might be
sentenced to death if he confessed involvement in the incident. Appellant
Arnaldo answered that he would face the consequences because he was
bothered by his conscience. He inquired from appellant Arnaldo if he was
harmed or intimidated into giving self-incriminating statements to the PAOCTF
investigators. Appellant Arnaldo answered in the negative. He requested
appellant Arnaldo to remove his shirt for him to check if there were torture
marks on his body, but he found none. He also observed that appellant
Arnaldo’s appearance and movements were normal. His conference with
appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the
PAOCTF investigators to question appellant Arnaldo.286[78]

Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and
listened to the latter’s entire confession. After the taking of appellant Arnaldo ’s
confession, Atty. Uminga requested the PAOCTF investigators to give him a
copy of appellant Arnaldo’s confession. Upon obtaining such copy, he read it
entirely and thereafter gave it to appellant Arnaldo. He instructed appellant
Arnaldo to read and comprehend the same carefully. He told appellant Arnaldo
to ask him for clarification and comment if he did not agree or understand any
part of his written confession. Appellant Arnaldo read his entire written
confession and handed it to him. Atty. Uminga asked him if he had objections
to it. Appellant Arnaldo replied in the negative. He then reminded appellant
Arnaldo that the latter could still change his mind, and that he was not being
forced to sign. Appellant Arnaldo manifested that he would sign his written
confession. Later, he and appellant Arnaldo affixed their signatures to the
written confession.287[79]

With respect to appellant Flores, Atty. Rous declared that before the
PAOCTF investigators began questioning appellant, Atty. Rous interviewed him
in Tagalog inside a room, where only the two of them were present. He asked
appellant Flores about his personal circumstances. Appellant Flores replied that
he was a suspect in the kidnapping of the Yao family, and he wanted to give a
confession regarding his involvement in the said incident. He asked appellant
Flores whether he would accept his assistance as his lawyer. Appellant Flores
affirmed that he would. He asked appellant Flores why he wanted to give such
confession. Appellant Flores answered that he was bothered by his conscience.
Atty. Rous warned appellant Flores that his confession would be used against
him in a court of law, and that the death penalty might be imposed on him.
Appellant Flores told him that he wanted to tell the truth and unload the burden
on his mind. He requested appellant Flores to lift his shirt for the former to
verify if there were torture marks or bruises on his body, but found none.
286[78] TSN, 27 September 2001, pp. 5-9.
287[79] Id. at 9-15.
 237
Again, he cautioned appellant Flores about the serious consequences of his
confession, but the latter maintained that he wanted to tell the truth. Thereafter,
he permitted the PAOCTF investigators to question appellant Flores.288[80]

Additionally, Atty. Rous stayed with appellant Flores while the latter was
giving statements to the PAOCTF investigators. After the taking of appellant
Flores’ statements, he instructed appellant Flores to read and check his written
confession. Appellant Flores read the same and made some minor corrections.
He also read appellant Flores’ written confession. Afterwards, he and appellant
Flores signed the latter’s written confession.289[81]

It is true that it was the PAOCTF which contacted and suggested the
availability of Atty. Uminga and Atty. Rous to appellants Arnaldo and Flores,
respectively. Nonetheless, this does not automatically imply that their right to
counsel was violated. What the Constitution requires is the presence of
competent and independent counsel, one who will effectively undertake his
client’s defense without any intervening conflict of interest. 290[82] There was no
conflict of interest with regard to the legal assistance rendered by Atty. Uminga
and Atty. Rous. Both counsels had no interest adverse to appellants Arnaldo
and Flores. Although Atty. Uminga testified that he was a former National
Bureau of Investigation (NBI) agent, he, nevertheless, clarified that he had been
separated therefrom since 1994291[83] when he went into private practice. Atty.
Uminga declared under oath that he was a private practitioner when he assisted
appellant Arnaldo during the custodial investigation.292[84] It appears that Atty.
Uminga was called by the PAOCTF to assist appellant Arnaldo, because Atty.
Uminga’s telephone number was listed on the directory of his former NBI
officemates detailed at the PAOCTF. Atty. Rous, on the other hand, was a
member of the Free Legal Aid Committee of the Integrated Bar of the
Philippines, Quezon City at the time he rendered legal assistance to appellant
Flores.293[85] Part of Atty. Rous’ duty as member of the said group was to render
legal assistance to the indigents including suspects under custodial
investigation. There was no evidence showing that Atty. Rous had
organizational or personal links to the PAOCTF. In fact, he proceeded to the
PAOCTF office to assist appellant Flores, because he happened to be the lawyer
manning the office when the PAOCTF called. 294[86] In People v. Fabro,295[87] we
stated:

The Constitution further requires that the counsel be

independent; thus, he cannot be a special counsel, public or private
prosecutor, counsel of the police, or a municipal attorney whose
interest is admittedly adverse to that of the accused. Atty. Jungco
does not fall under any of said enumeration. Nor is there any

288[80] TSN, 25 September 2001, pp. 2-14.

289[81] Id. at 14-19.
290[82] People v. Velarde, supra note 74.
291[83] TSN, 27 September 2001, p. 5.
292[84] Id.
293[85] TSN, 25 September 2001, pp. 4-5.
294[86] Id. at 6.
295[87] Supra note 65 at 726.
 238
evidence that he had any interest adverse to that of the accused. The
indelible fact is that he was president of the Zambales Chapter of the
Integrated Bar of the Philippines, and not a lackey of the lawmen.

Further, as earlier stated, under Section 12(1), Article III of the 1987
Constitution, an accused is entitled to have competent and independent counsel
preferably of his own choice. The phrase “preferably of his own choice” does
not convey the message that the choice of a lawyer by a person under
investigation is exclusive as to preclude other equally competent and
independent attorneys from handling the defense. Otherwise, the tempo of
custodial investigation would be solely in the hands of the accused who can
impede, nay, obstruct, the progress of the interrogation by simply selecting a
lawyer who, for one reason or another, is not available to protect his interest. 296
[88]
While the choice of a lawyer in cases where the person under custodial
interrogation cannot afford the services of counsel – or where the preferred
lawyer is not available – is naturally lodged in the police investigators, the
suspect has the final choice, as he may reject the counsel chosen for him and
ask for another one. A lawyer provided by the investigators is deemed engaged
by the accused when he does not raise any objection to the counsel ’s
appointment during the course of the investigation, and the accused thereafter
subscribes to the veracity of the statement before the swearing officer. 297[89]
Appellants Arnaldo and Flores did not object to the appointment of Atty.
Uminga and Atty. Rous as their lawyers, respectively, during their custodial
investigation. Prior to their questioning, appellants Arnaldo and Flores
conferred with Atty. Uminga and Atty. Rous. Appellant Arnaldo manifested
that he would be assisted by Atty. Uminga, while appellant Flores agreed to be
counseled by Atty. Rous. Atty. Uminga and Atty. Rous countersigned the
written extra-judicial confessions of appellants Arnaldo and Flores,
respectively. Hence, appellants Arnaldo and Flores are deemed to have
engaged the services of Atty. Uminga and Atty. Rous, respectively.

Since the prosecution has sufficiently established that the respective extra-
judicial confessions of appellant Arnaldo and appellant Flores were obtained in
accordance with the constitutional guarantees, these confessions are admissible.
They are evidence of a high order because of the strong presumption that no
person of normal mind would deliberately and knowingly confess to a crime,
unless prompted by truth and conscience. 298[90] Consequently, the burden of
proving that undue pressure or duress was used to procure the confessions rests
on appellants Arnaldo and Flores.299[91]

In the case at bar, appellants Arnaldo and Flores failed to discharge their
burden of proving that they were forced or coerced to make their respective
confessions. Other than their self-serving statements that they were maltreated
by the PAOCTF officers/agents, they did not present any plausible proof to
296[88] People v. Mojello, 468 Phil. 944, 954 (2004).
297[89] People v. Base, supra note 67.
298[90] People v. Bagnate, G.R. Nos. 133685-86, 20 May 2004, 428 SCRA 633, 651.
299[91] People v. Fabro, supra note 65.
 239
substantiate their claims. They did not submit any medical report showing that
their bodies were subjected to violence or torture. Neither did they file
complaints against the persons who had allegedly beaten or forced them to
execute their respective confessions despite several opportunities to do so.
Appellants Arnaldo and Flores averred that they informed their family
members/relatives of the alleged maltreatment, but the latter did not report such
allegations to proper authorities. On the contrary, appellants Arnaldo and
Flores declared in their respective confessions that they were not forced or
harmed in giving their sworn statements, and that they were not promised or
given any award in consideration of the same. Records also bear out that they
were physically examined by doctors before they made their confessions. 300[92]
Their physical examination reports certify that no external signs of physical
injury or any form of trauma were noted during their examination. 301[93] In
People v. Pia,302[94] we held that the following factors indicate voluntariness
of an extra-judicial confession: (1) where the accused failed to present
credible evidence of compulsion or duress or violence on their persons; (2)
where they failed to complain to the officers who administered the oaths;
(3) where they did not institute any criminal or administrative action
against their alleged intimidators for maltreatment; (4) where there
appeared to be no marks of violence on their bodies; and (5) where they
did not have themselves examined by a reputable physician to buttress
their claim.

It should also be noted that the extra-judicial confessions of appellants

Arnaldo and Flores are replete with details on the manner in which the
kidnapping was committed, thereby ruling out the possibility that these were
involuntarily made. Their extra-judicial confessions clearly state how
appellants and their cohorts planned the kidnapping as well as the sequence of
events before, during and after its occurrence. The voluntariness of a
confession may be inferred from its language if, upon its face, the confession
exhibits no suspicious circumstances tending to cast doubt upon its integrity, it
being replete with details which could only be supplied by the accused.303[95]

With respect to appellant Reyes’s claim that the extra-judicial confessions

of appellants Arnaldo and Flores cannot be used in evidence against him, we
have ruled that although an extra-judicial confession is admissible only against
the confessant, jurisprudence makes it admissible as corroborative evidence of
other facts that tend to establish the guilt of his co-accused. 304[96] In People v.
Alvarez,305[97] we ruled that where the confession is used as circumstantial
evidence to show the probability of participation by the co-conspirator, that
confession is receivable as evidence against a co-accused. In People v.
Encipido306[98] we elucidated as follows:

300[92] Records, p. 18.

301[93] Id. at 19.
302[94] 229 Phil. 577, 582 (1986).
303[95] People v. Bagnate, supra note 90.
304[96] Santos v. Sandiganbayan, 400 Phil. 1175, 1206 (2000).
305[97] G.R. No. 88451, 5 September 1991, 201 SCRA 364, 377.
306[98] 230 Phil. 560, 574 (1986).
 240
It is also to be noted that APPELLANTS’ extrajudicial
confessions were independently made without collusion, are
identical with each other in their material respects and
confirmatory of the other. They are, therefore, also admissible as
circumstantial evidence against their co-accused implicated therein
to show the probability of the latter’s actual participation in the
commission of the crime. They are also admissible as
corroborative evidence against the others, it being clear from other
facts and circumstances presented that persons other than the
declarants themselves participated in the commission of the crime
charged and proved. They are what is commonly known as
interlocking confession and constitute an exception to the general
rule that extrajudicial confessions/admissions are admissible in
evidence only against the declarants thereof.

Appellants Arnaldo and Flores stated in their respective confessions that

appellant Reyes participated in their kidnapping of the Yao family. These
statements are, therefore, admissible as corroborative and circumstantial
evidence to prove appellant Reyes’ guilt.

RIGHT TO COUNSEL

The person who assisted him in court during

his arraignment and pre-trial is not a lawyer.

PEDRO CONSULTA VS. PEOPLE, G.R. No. 17942,

February 12, 2009

CARPIO MORALES, J.:

On the matter of accused-appellant’s claim of having been

denied due process, an examination of the records shows that while
accused-appellant was represented by Atty. Jocelyn P. Reyes, who
“seems not a lawyer,” during the early stages of trial, the latter
withdrew her appearance with the conformity of the former as early
as July 28, 2000 and subsequently, approved by the RTC in its Order
dated August 4, 2000. Thereafter, accused-appellant was represented
by Atty. Rainald C. Paggao from the Public Defender’s (Attorney’s)
Office of Makati City. Since the accused-appellant was already
represented by a member of the Philippine Bar who principally
handled his defense, albeit unsuccessfully, then he cannot now be
heard to complain about having been denied of due process.307[3]
(Underscoring supplied)

That appellant’s first counsel may not have been a member of the bar does
not dent the proven fact that appellant prevented Nelia and company from

307 [3]
Rollo, p. 169
 241
proceeding to their destination. Further, appellant was afforded competent
representation by the Public Attorneys’ Office during the presentation by the
prosecution of the medico-legal officer and during the presentation of his
evidence. People v. Elesterio308[4] enlightens:

“As for the circumstance that the defense counsel turned out
later to be a non-lawyer, it is observed that he was chosen by the
accused himself and that his representation does not change the fact
that Elesterio was undeniably carrying an unlicensed firearm when
he was arrested. At any rate, he has since been represented by a
member of the Philippine bar, who prepared the petition for habeas
corpus and the appellant’s brief.” (Underscoring supplied)

Read also:

1. The right to counsel, 57 SCRA 481

1-a. P vs. Nolasco, 163 SCRA 623
1-b. P vs. Hernandez, 162 SCRA 422
1-c. P. vs. Ampo-an, July 4, 1990
1-d. P. vs. Saludar, July 31, 1990
1-e. P. vs. Kidagan, August 20, 1990
1-f. Estacio vs. Sandiganbayan, 183 SCRA 12
1-g. P. vs. Buenaflor, 181 SCRA 225
2. P vs. Tampus, 96 SCRA 624
3. P vs. Taylaran, 108 SCRA 373
4. P vs. Tawat, 129 SCRA 431
5. P vs. Marcos, 147 SCRA 204 (Note that this decision is widely
criticized by constitutionalists)
6. P vs. Ladrera, 150 SCRA 113
7. P. Nulla, 153 SCRA 471
8. P vs. Marquez, 153 SCRA 700
9. P vs. Olvis, 154 SCRA 513
10. P vs. Caguioa, January 17, 1980
ll. P vs. Pecardal, 145 SCRA 624
12. P vs. Lasac, 148 SCRA 624
13. P vs. Pena, 80 SCRA 589
14. P vs. Jara, 144 SCRA 516

How about if the lawyer who assisted him during custodial investigation
is a public attorney who was not chosen by the accused himself but given to
him free of charge? The extrajudicial confession is inadmissible as evidence.

Read:

P. vs. Alegria, September 28, 1990

308 [4]
G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.
 242
Could the Fiscal also represent the accused during custodial investigation
to satisfy the requirement of the Constitution that the accused is assisted by
counsel? No. The Fiscal is the counsel for the State, not the accused or the
suspect.

Read:

P. vs. Matos-Viduaya, September 11, 1990

5. Right to remain silent and to counsel and the right to be informed of such
rights; cases in general/when does these rights demandable? Effect of its non-
observance by the investigator

Read:

1. P vs. Albofera, 152 SCRA 123

1-a. P vs. Lasanas, 152 SCRA 27
1-b. P vs. Olvis, 154 SCRA 513
1-c. P vs. Capitin, 165 SCRA 47
1-a. Gamboa vs. Cruz, 162 SCRA 642
1-b. P vs. Hizon, 163 SCRA 760
1-c. P vs. Velasco, 110 SCRA 319
2. Diokno vs. Enrile, 110 SCRA 140
3. Morales vs. Ponce Enrile, 121 SCRA 538
4. P vs. Rojas, January 8, l987
5. P vs. Santiago, January 7,1987
6. P vs. Decierdo, 149 SCRA 496

5-a. Is the right to counsel indispensable in non-criminal proceedings?

Read:

1. Nera vs. Auditor Genral, 164 SCRA 1

6. Presumptions on extrajudicial confessions(that official acts were regularly

performed as against the presumption against waiver of constitutional rights)

Read:

1. P vs. Duero, 104 SCRA 379

2. P vs. Jara, 144 SCRA 516
3. P vs. Abano, 145 SCRA 555
4. P vs. Tolentino, 145 SCRA 597
5. P vs. Salig, 133 SCRA 59
6. P vs. Cruz, 133 SCRA 426
7. P vs. Prudente,, 133 SCRA 651
8 P vs. Trinidad, 162 SCRA 714, when the presumption of regularity
does not apply
 243

7. Who can object to the admissibility of an extrajudicial confession?

Read:

1. Stonehill vs. Diokno, supra

2. P vs. Jara, 144 SCRA 576
3. P. vs. loveria, July 2, 1990

8. Inadmissible as evidence

a. The doctrine of the "fruit of the poisoned tree"

Even if the extrajudicial confession is

inadmissible as evidence, accused still held
guilty by the Supreme Court.

PEOPLE VS. ROLANDO FELIXMINIA y

CAMACHO
GR No. 125333, March 20, 2002

En Banc

Facts:

1. In the morning of September 19, 1995, accused-appellant and his

cousin, RONNIE GARCIA were drinking gin in a canteen in
Urdaneta, Pangasinan;

2. At around 10 a.m. of the same day, Rosita Mangunay saw both

persons walking along Ambrosio St., in the poblacion and noticed
that they smelled liquor when they greeted her;

3. In the early afternoon of the same day, accused-appellant and his

cousin went to look for 6-year old Maria Lourdes Galinato, also
known as Tisay and found her playing inside a jeepney and took her;

4. At around 2:45 p.m. of the same day, Mangunay again saw the
accused-appellant walking along Ambrosio St., carrying Tisay who
was crying and struggling. She claimed that she clearly saw the
accused-appellant since they were walking towards each other
coming from opposite directions;

5. Before 3 to 4 p.m., prosecution witness Natividad Bernardo, saw

accused-appellant pass their house carrying a child who looked
about 5-6 years old.
 244
6. At about the same time, witness Leah Magno saw the accused-
appellant carrying a child was seen heading towards the wooded
area in the Macalong River;

7. By 5 p.m. to 6:30 p.m. of that same day, Magno saw accused-

appellant walking alone to town coming from the direction of the
Macalong River;

8. Meanwhile, the parents of Tisay were frantically searching for their

child and when their search proved futile, they reported the matter to
the Barangay Captain and to the Police;

9. Upon receipt of the information that the child was last seen with the
accused-appellant, the police together with the Barangay Captains of
Camantiles and Bayaoas, Urdaneta, Pangasinan, proceeded to the
house of the accused-appellant;

10. As they approached the house, the accused-appellant jumped

out of the window carrying a black bag. The police authorities gave
chase and finally caught him after twenty (20) exhausting hours;

11. After his arrest, accused-appellant was brought to the Urdaneta

Police Station where he admitted that he raped, killed and buried
Maria Lourdes near the Macalong River in Barangay San Vicente,
Urdaneta, Pangasinan, while UNDER INVESTIGATION
WITHOUT THE ASSISTANCE OF A LAWYER. INDEED, THE
BODY OF TISAY WAS FOUND IN THE PLACE WHICH HE
DESCRIBED DURING HIS CUSTODIAL INVESTIGATION.

12. After trial, the trial court (RTC 45 presided over by JUDGE
JOVEN COSTALES) rendered a judgment of conviction and
imposing the penalty of death to the accused-appellant. The court
admitted as evidence the extrajudicial confession of the accused-
appellant and used the same as one of the grounds in support of the
judgment of conviction.

A. I S S U E S

1. Is the extrajudicial confession of the accused –appellant

admissible in evidence?
2. Whether the lower court erred in convicting in convicting the
accused-appellant?

Held:

1
 245
The alleged extrajudicial confession of the accused while under custodial
investigation and without the assistance of counsel is inadmissible in evidence
despite the fact that he was allegedly appraised of his constitutional rights to
remain silent and to counsel.

This is so because under the 1987 Constitution, the said rights could not
be waived except in the presence of counsel. As such, in accordance with the
doctrine of the ‘fruit of the poisoned tree’, the same is inadmissible in evidence.

Any information or admission given by a person while in custody which

may appear harmless or innocuous at the time without the competent assistance
or an independent counsel should be struck down as inadmissible.

Though the extrajudicial confession of the accused-appellant is

inadmissible as evidence, his conviction by the trial court is correct. This is so
because [1] the compromising circumstances were duly proven which were
consistent with each other and which lead with moral certainty to the
conclusion that he was guilty of the crime charged; and [2] the totality of such
circumstances eliminated beyond doubt the possibility of his innocence. In
People vs. Mahinay, it was held that conviction may be had on circumstantial
evidence provided the following requisites are present: [a] there is more than
one circumstance; [b] the facts from which the inferences are derived are
proven; and [c] the combination of all circumstances is such as to produce a
conviction beyond reasonable doubt.

The evidence in this case are more than sufficient to prove the accused-
appellant’s beyond reasonable doubt. Circumstantial evidence is not a weaker
form of evidence vis-à-vis direct evidence and cases have recognized that
circumstantial evidence in its weight and probative force, may surpass direct
evidence in its effect upon the Supreme Court.

(NOTE: The indemnification for the death of a person in a rape with Homicide
cases was increased from P50,000.00 to P125,000.00. The said indemnity shall
also be applicable where the death penalty is authorized by applicable
amendatory laws))

b. The exclusionary rule, 145 SCRA 700

Read:

1. P vs. Burgos, 144 SCRA 516

2. P vs. Alcaraz,136 SCRA 74
3. Does it also include the confession of a witness, not the accused?

Read:
 246
1. P vs. Bombesa, 162 SCRA 402
2. p. vs. Yutuc, July 26, 1990

9. Sec. 12(2)

Read:

1. Dizon vs. Gen. Eduardo, May 3,1988

2. P vs. Eligino, August 11,1988
3. Contado vs. Tan, April 15, 1988

10. Extrajudicial confession; when admissible or inadmissible

Read:

1. The admissibility of an extrajudicial confession in a criminal

prosecution,142 SCRA 110

2. Admissibility of an extrajudicial confession,135 SCRA 419 and

10 SCRA 520

3. Inadmissibility of an admission obtained by force, 114 SCRA

234

4. Confession as evidence against the accused, 96 SCRA 637

Read:

5. P vs. Camalog, January 31, 1989

5-a. P vs. Capulong, 160 SCRA 533
5-b. P vs. Lagahan, December 8, 1988
5-c. P vs. Dino, 160 SCRA 197
5-d. P vs. Caramonte, 94 SCRA 150
5-e. P vs. Enciso, 160 SCRA 728
5-d. P vs. Abano, 145 SCRA 565
5-e. P vs. Quizon, 142 SCRA 362
5-f. P vs. Olvis, 154 SCRA 513
5-g. P vs. Robles, 104 SCRA 450
5-h. P vs. Eligino, 164 SCRA 260
5-i. P vs. Abejero, May 17,l980
5-j. P. vs. Bagano, 181 SCRA 34
5-k. P. vs. Estevan, 186 SCRA 184
5-l. P. vs. Ramos, 186 SCRA 184
5-m. P. vs. Flores, 186 SCRA 303
5-n. P. vs. Jungco, 186 SCRA 714
5-o. P. vs. Arsenio, 184 SCRA 205
6. P vs. Villanueva, 128 SCRA 488
7. P vs. Dejaresco, 129 SCRA 576
 247
8. P vs. Tuvera, 130 SCRA 169
9. P vs. Maternal, 130 SCRA 625
10. P vs. Nilos, 127 SCRA 207
11. P vs. Sanchez, 132 SCRA 103
12. P vs. Pizarro, 131 SCRA 418
13. P vs. Sabilano, 132 SCRA 83
14. P vs. Veloso, 148 SCRA 60
15. Magtoto vs. Manguera, 63 SCRA 4
16. P vs. Gapasin, 145 SCRA 178
17. P vs. Palo, 147 SCRA 178
18. P. vs. De Jesus, 145 SCRA 521
19. P vs. Pia, 145 SCRA 581
20. P vs. Encipiado, 146 SCRA 478
21. P vs. Canumay, 130 SCRA 301
22. P vs. Marino, 130 SCRA 595
23. P vs. Natipravat, 145 SCRA 483
24. P vs. Cruz, 133 SCRa 426--when confession is valid
25. P. vs. De La Cruz, 183 SCRA 763---when confession is inadmissible but
accused is still liable

11. Evidence of lack of cvoluntariness

Read:

1. P vs. Jara, 144 SCRA 516

2. P vs. Abayon, 114 SCRA 197

12. Is the testimony of the arresting officer on the alleged oral confession of
the accused admissible?

Read:

1. P vs. Dy, 158 SCRA 111

CHAPTER XIII - THE CONSTITUTIONAL RIGHT

TO BAIL

Section 13. All persons, except those charged

with offenses punishable by reclusion
perpetua when the evidence of guilt is strong,
shall before conviction, be bailable by
sufficient sureties, or be released on
recognizance as may be provided by law. The
right to be bail shall not be impaired even
when the privilege of the writ of habeas
 248
corpus is suspended. Excessive bail shall not
be required.

1. The right to bail, 104 SCRA 372

2. Bail, 81 SCRA 188

Kinds of bail; when not applicable.

Recognizance/bail for a convict

ATTY. JULIANA ADALIM-WHITE VS. JUDGE ARNULFO BUGTAS,

RTC 2 BORONGAN, SAMAR, 475 SCRA 175

Austria-Martinez, J.

Facts:

Manuel Bagaporo, Jr. was convicted of frustrated murder and was

sentenced four years and two months to eight years and one day of
imprisonment. He started serving his sentence and subsequently, he filed an
application for release on recognizance. In support of his application, the
Provincial Jail Warden issued a certification that Bagaoporo has been confined
at the Provincial Jail since February 9, 1996 and is already entitled to parole.
Another certification was issued by the Supervising Parole and Probation
Officer showing that Bagaporo applied for parole in lieu of the DOJ’s Maagang
Paglaya Program.

By virtue of the above certifications, respondent judge ordered the release

of Bagaporo upon recognizance of the Provincial Jail Warden of Eastern Samar.
He likewise justified the same based on the rule that “bail is discretionary upon
conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment.

Held:

Respondent Judge is guilty of gross ignorance of the law for ordering the
release of Bagaporo pending the approval of his application for parole and
before the completion of the minimum period of the sentence imposed upon
him.

It is patently erroneous to release a convict on recognizance. Section 24,

Rule 114 provides that there shall no bail for a convict after final judgment. The
only exception is when the convict applies for Probation before he commences
to serve his sentence and that the offense and the penalty for the offense is
within the purview of the Probation Law.
 249
Sections 5 and 16 of Rule 114 of the Rules of Court (on the different
kinds of bail) APPLIES ONLY TO AN ACCUSED UNDERGOING
PREVENTIVE IMPRISONMENT DURING TRIAL OR ON APPEAL.
THEY DO NOT APPLY TO A PERSON CONVICTED BY FINAL
JUSGMENT AND ALREADY SERVING SENTENCE.

Judge Bugtas was therefore fined P40,000.00 for gross ignorance of the
law and sternly warned that a repetition of the same or similar act shall be dealt
with more severely.

3. Read:

******************************************************
Excessive bail:

1. De la Camara vs. Enage, 41 SCRA 1

*****************************************************

1-a. Pestano vs. Judge Velasco, July 3, 1990

******************************************************
Waiver of the right to bail:

1-b. P. vs. Donato, June 5, 1991

*****************************************************
2. Almeda vs. Villaluz, 66 SCRA 38
3. Marcos vs. Cruz, 67 and 70 Phil.
4. Villasenor vs. Abano, 21 SCRA 312
5. P vs. IAC, January 10,1987, 147 SCRA 219
6. Manotoc vs. CA, May 30,1986
7. Garcia vs. Domingo, 52 SCRA 143
8. P vs. San Diego, 26 SCRA 522

4. See Section 10, Rule 114, 1985 Rules on Criminal Procedure

3 a. Procedure when prosecutor does not object to the petition for bail in
capital offenses:

PEOPLE VS. AGBAYANI, 284 SCRA 315

Bail in Extradition cases.

UNITED STATES VS. JUDGE PURUGGANAN & MARK JUMENEZ

November, 2002

A person facing extradition proceedings is not entitled to bail even if the

crime he was charged of in a foreign country is bailable. This is so because the
 250
constitutional provision on the right to bail under Art. III of the 1987
Constitution applies only to criminal cases, not in extradition proceedings.

*********************************
Right to notice and hearing before the issuance of a warrant of arrest in
extradition case

EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17,

MANILA, 483 SCRA 290

Quisumbing, J.

In SECRETARY OF JUSTICE VS. JUDGE LANTION, 322 SCRA

160 (The Mark Jimenez Case) , the Supreme Court on a 9-6 vote held that the
extraditee is entitled to notice and hearing even when a request for extradition
by another country is still being evaluated. However, on Motion for
Reconsideration in the same case, in a 9-6 decision, the Supreme Court held
that the prospective extraditee is not entitled to notice and hearing while his
case is still under evaluation because this would defeat the purpose of the arrest
warrant since it could give warning that respondents would be arrested and
even encourage them to flee but entitled to notice and hearing if the case is
already filed in court.

It is a different matter if at first, the extraditee was allowed bail. The

cancellation of his bail bond may be made only after notice and hearing.
Otherwise, his right to due process of law will be violated.

(NOTE: In the case of US vs. Judge Purugganan, 389 SCRA 623), the
Supreme Court held that the extraditee is not entitled to post a bond even if the
crime he was charged of abroad is a bailable offense. This is so because of the
possibility of flight.)

***************************************************

CHAPTER XIV - DUE PROCESS

IN CRIMINAL PROCEEDINGS

**************************************************

1. In general:

1. P vs. Terrobias, 103 SCRA 321

Presumption of innocence prevails over the

presumption of regularity in the
performance of official duties of the police
authorities and Presumption of innocence
 251
resulting in acquittal as a result on
conflicting and inconsistent testimonies of
the prosecution’ s witnesses:

ELPIDIO BONDAD, JR. VS. PEOPLE, G.R. No.

173804, EDecember 10, 2008

CARPIO MORALES, J.:

Elpidio Bondad, Jr., y Burac (appellant) was charged before the

Regional Trial Court (RTC) of Marikina City309[1] for violation of Section
5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or
the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as
follows:310[2]

That on or about the 29th day of January 2004, in the City

of Marikina, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without being
authorized by law, did then and there willfully, unlawfully,
feloniously and knowingly sell to poseur buyer 0.02 gram of
Methamphetamine Hydrochloride (shabu) contained in one (1)
heat-sealed transparent plastic sachet, a dangerous drug, in
violation of the above-cited law.311[3] (Underscoring supplied)

He was likewise charged for violation of Section 11, par. 2(3),

Article II also of R.A. No. 9165, allegedly committed as follows:

That on or about the 29th day of January 2004, in the City

of Marikina, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without being
authorized by law to possess or otherwise use any dangerous
drugs, did then and there willfully, unlawfully and feloniously
have in his possession direct custody and control 0.04 gram of
white crystalline substance contained in two (2) heat-sealed
plastic sachets which gave positive result to the test for
Methamphetamine Hydrochloride (shabu), which is a
dangerous drug, in violation of the above-cited law.312[4]
(Underscoring supplied)

At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand

Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the
Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF),
Office of the Marikina City Police Station, PO2 Nelson Arribay arrived
[1]
309 Rollo, pp. 73-74.
[2]
310 Records, p. 2.
[3]
311 Records, p. 2 - Information dated February 2, 2004.
[4]
312 Id. at p. 6.
 252
together with a confidential informant. The confidential informant
reported, among other things, about the rampant sale of shabu in a billiard
hall along Bonifacio Avenue, Barangka, Marikina City and named a
certain alias “Jun” as the vendor.

The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at

once formed a buy-bust team composed of, among others, PO2 Ramiel
Soriano and PO2 Dano who was designated as the poseur-buyer. PO2
Dano was given a one hundred peso bill bearing Serial No. Q487945 to be
used as buy-bust money. It was agreed that PO2 Dano ’s removal of his
cap would signal that the buy-bust was consummated.

The conduct of a buy-bust operation was recorded in the police

blotter and was coordinated with the Philippine Drug Enforcement
Agency (PDEA) which gave it control number NOC-012904-28.

The buy-bust team, together with the confidential informant,

proceeded to 3 C’s billiard hall at the corner of M. Cruz St. and Bonifacio
Avenue in Barangka, Marikina City. On entering the hall, the confidential
informant pointed to appellant who was then holding a cue stick beside
the billiard table as the alias “Jun.” The confidential informant
approached appellant and talked to him. Within minutes, appellant
approached PO2 Dano and asked him if he wanted to buy shabu, to which
PO2 Dano answered “piso lang.” Appellant at once took out a “Vicks”
container from his right front pocket313[5] which, when opened, yielded
heat-sealed plastic sachets containing substances suspected to be shabu.
From the container, appellant drew out one sachet in exchange for which
PO2 Dano gave the marked one hundred peso bill. At that instant, PO2
Dano removed his cap.

As the back-up police officers were closing-in, PO2 Dano grabbed

appellant’s arm, identified himself, and apprised appellant of his
constitutional rights. Upon PO2 Dano’s order, appellant returned the buy-
bust money, handed the “Vicks” container, and gave his name as
Elpidio Burac Bondad, Jr.

Still at the place of arrest, PO2 Dano placed the markings “EBB-ED
BUYBUST 01/29/04” on the substance-filled sachet sold to him, and
“EBB-ED, POS 1 and 2, 01/29/04” on the sachets that remained inside the
“Vicks” container.
The buy-bust team thereupon brought appellant and the seized items
to the Marikina City Police Station where a memorandum dated January
29, 2004314[6] was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to
the Chief of the Eastern Police District Crime Laboratory Office,
requesting for the conduct of laboratory examination on the seized items

[5]
313 No specification if it was a pocket of the shirt or of the pants.
[6]
314 Id. at p. 15
 253
to determine the presence of dangerous drugs and their weight. PO2
Dano also requested that appellant be subjected to a drug test.315[7]

The following day or on January 30, 2004, at 3:00 P.M., upon

receipt of three sachets, a laboratory examination was conducted thereon
by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer
of the Eastern Police District Crime Laboratory Office, who, in Physical
Science Report No. D-0094-04E316[8], recorded, among other things, the
specimen submitted, her findings and conclusion as follows:

SPECIMEN SUBMITTED:

Three (3) heat-sealed transparent plastic sachets with

markings marked as A through C respectively, each containing
white crystalline substance with following recorded net
weights and markings:

A = 0.02 gram “EBB-ED BUYBUST 01/29/04”

B = 0.02 gram “EBB-ED POSS 1 01/29/04”
C = 0.02 gram “EBB-ED POSS 2 01/29/04”

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

F I N D I N G S: x x x

Qualitative examination conducted on the above-stated

specimen gave POSITIVE result to the tests for
Methamphetamine Hydrochloride, a dangerous drug.

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

C O N C L U S I O N:

Specimens A through C contain Methamphetamine

Hydrochloride, a dangerous drug. 317[9] (Italics and emphasis in
the original)
Denying the charges against him, appellant, a former police officer,
claimed that he was framed up and gave the following version:

On January 29, 2004, while he was playing inside 3 C’s billiard

hall, PO2 Brubio, whom he knew was a policeman, entered the billiard
hall. After greeting PO2 Brubio in Bicolano, he continued playing but
PO2 Brubio suddenly handcuffed him and asked him “Sumama ka
muna.” Another person who was at his back pushed him out of the
billiard hall in the course of which he felt PO2 Brubio reaching his

[7]
315 TSN, June 15, 2004, p. 41
[8]
316 Records, p. 17
[9]
317 Exhibit “C”, folder of exhibits, p. 2
 254
318[10]
(appellant’s) right front pocket, drawing him to restrain the hand of
PO2 Brubio, telling him “pera ko yan!”

Aware that his son was inside the billiard hall, appellant summoned
and handed him his wallet containing P2,000. PO2 Brubio, however,
took the wallet from his son, telling him “Huwag ka makialam dito.” He
was then made to board a car and taken to the Office of the SAIDSOTF
at the police station.

Appellant’s defense was corroborated by his son Christian Jeffrey

C. Bondad, and Roberto U. Mata who was a “spotter” (referee) at the
billiard hall at the time appellant was arrested.

Finding for the prosecution, the trial court convicted appellant in

both charges, disposing as follows:

WHEREFORE, foregoing premises considered, the

Court finds the accused ELPIDIO BONDAD, JR. y BURAC
guilty beyond reasonable doubt of the crime of Violation of
Sec. 11 par. 2(3), Art. II of R.A. 9165 and is sentenced to
suffer the penalty of imprisonment for a period of TWELVE
(12) YEARS and ONE (1) DAY and to pay the fine of THREE
HUNDRED THOUSAND PESOS (PhP300,000.00) as
provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The
accused is likewise found guilty of the crime of Violation of
Sec. 5 Art. II of RA 9165 and is sentenced to suffer the penalty
of LIFE IMPRISONMENT and fine of FIVE HUNDRED
THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art.
II of RA 9165 the methamphetamine hydrochloride (shabu) is
ordered confiscated in favor of the government for proper
destruction by the proper agency.

SO ORDERED.319[11] (Underscoring supplied)

By Decision of February 8, 2006, 320[12] the Court of Appeals

affirmed the trial court’s decision with modification, disposing as
follows:

WHEREFORE, in the light of the foregoing, the appeal

is DISMISSED for lack of merit. The assailed decision is
AFFIRMED with the MODIFICATION that the accused-
appellant is sentenced to suffer an indeterminate penalty of
imprisonment of twelve (12) years and one (1) day, as

318[10] There is also no specification if it was a pocket of the shirt or the pants
319 [11] CA rollo, p. 124.
320 [12] Penned by Justice Amelita G. Tolentino with the concurrence of Justices Portia Aliño Hormachuelos and Vicente S.E.
Veloso, CA rollo, pp. 232-254.
 255
minimum, to thirteen (13) years, as maximum and to pay a fine
of Three Hundred Thousand Pesos (P300,000.00).

SO ORDERED.321[13] (Underscoring supplied)

Specifically with respect to the charge of possession of shabu, the

appellate court held:

The evidence for the prosecution fully proved beyond

reasonable doubt the elements necessary to successfully
prosecute a case for illegal possession of a prohibited drug,
namely, (a) the accused is in possession of an item or an object
identified to be a prohibited or a regulated drug, (b) such
possession is not authorized by law and (c) the accused freely
and consciously possessed said drug.

Under Section 11, Par. 2 [3] of R.A. 9165, the mere act
of possessing any dangerous drug consummates the crime.
There is no doubt that the charge of illegal possession of shabu
was proven beyond reasonable doubt since the accused-
appellant knowingly possessed plastic sachets with white
crystalline granules, without legal authority at the time he was
caught during the buy-bust operation. The white crystalline
granules found in his possession, upon laboratory examination,
were positively identified as methamphetamine hydrochloride
or shabu, a dangerous drug.322[14] (Italics in the original,
underscoring supplied)

Hence, the present Petition for Review on Certiorari, appellant

faulting the appellate court:

II. . . . IN ADMITTING THE EVIDENCE OF THE

PROSECUTION DESPITE CLEAR VIOLATION OF
SECTION 21 (1) OF R.A. 9165;

As the resolution of the second assignment of error is determinative

of whether there is still necessity of segueing to the first and third
assignments of error, it shall early on be passed upon.

Appellant claims that there was failure to follow the requirements of

Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and
evidentiary value of the allegedly seized items.

Sec. 21 of R.A. No 9165 provides:

[13]
321 Rollo, p. 68.
[14]
322 Id. at p. 66 (citations omitted)..
 256

Section 21. Custody and Disposition of Confiscated,

Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. – The PDEA shall take charge and have custody
of all dangerous drugs, plant sources or dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and or surrendered, for proper disposition
in the following manner:

(1) The apprehending team having initial custody and

control of the drugs shall, immediately after seizure
and confiscation, physically inventory and
photograph the same in the presence of the accused or
the persons/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory
and be given a copy thereof; x x x (Emphasis and
underscoring supplied)

Appellant claims that no physical inventory and photographing of

the drugs took place. A reading of the testimony of the poseur-buyer, PO2
Dano indeed confirms appellant’s claim, viz:

Atty. Puentebella:
When you brought him to the police, it was there that the
items taken from him were inventoried, is it not?

Witness:
We did not make inventory because we simply brought
the evidence confiscated.

xxxx

Atty. Puentebella:
You also did not take photographs of the items taken
from the accused?

Witness:
Yes, sir.

Atty. Puentebella:
 257
And you know for a fact that under the new drugs law,
this is a requirement for the apprehending team to do, is
it not?

Pros. Gapuzan:
Counsel is asking for a conclusion of law. I will object.

Court:
Witness may answer the question.

Witness:
Yes, sir.

xxxx

Atty. Puentebella:
So it is very clear now Mr. Witness that at the time you
apprehended the accused, you did not make an
inventory in the presence of the accused nor you did
not [sic] make a photograph of the items seized in the
presence of the accused, an elective official, a
representative from the Department of Justice, or the
media, that’s very clear?

Witness:
Yes, sir.

Atty. Puentebella:
Since you did not make any inventory, it follows that you
did not require them to sign your inventory as required
by law?

Witness:
Yes, sir.323[16] (Emphasis and underscoring supplied)

Clearly then, the apprehending police officers failed to comply with

the above-quoted provision of Section 21 of R.A. No. 9165.

People v. Pringas holds, however:

Non-compliance by the apprehending/buy-bust team with

Section 21 is not fatal as long as there is justifiable ground
therefor, and as long as the integrity and the evidentiary
value of the confiscated/seized items, are properly
preserved by the apprehending officer/team. Its non-
compliance will not render an accused's arrest illegal or the
[16]
323 TSN, June 15, 2004, pp. 80-87.
 258
items seized/confiscated from him inadmissible. What is of
utmost importance is the preservation of the integrity and
the evidentiary value of the seized items, as the same would
be utilized in the determination of the guilt or innocence of the
accused.324[17] (Citation omitted, emphasis, italics and
underscoring supplied)

The Court’s pronouncement in Pringas is based on the provision of

Section 21(a) of the Implementing Rules and Regulations 325[18] of R.A. No.
9165, viz:

x x x Provided, further, that non-compliance with these

requirements under justifiable grounds, as long as the
integrity and evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody
over said items; (Emphasis and underscoring supplied)

In the present case, by PO2 Dano’s claim, he immediately marked

the seized items which were brought to the Crime Laboratory for
examination. By his admission, however, he did not conduct an
inventory of the items seized. Worse, no photograph of the items was
taken. There was thus failure to faithfully follow the requirements of
the law.

Parenthetically, unlike in Pringas, the defense in the present case

questioned early on, during the cross examination of PO2 Dano, the
failure of the apprehending officers to comply with the inventory and
photographing requirements of Section 21 of R.A. No. 9165326[19], despite
PO2 Dano’s awareness of such requirements. And the defense raised it
again during the offer of evidence by the prosecution, thus:

Atty. Puentebella:

xxxx

Exhibits “B” which is the brown envelope, “B-1”, “B-2”

and “B-3” are objected to for being product of irregular
functions of police and therefore fruit of poisonous
thinking [sic] and they are not admissible and they were
not photographed in the presence of the accused as
provided for by Sec. 21, par.1, R.A. 9165;327[20]
(emphasis supplied)

324 [17] G.R. No. 175928. August 31, 2007, 531 SCRA 828, 842-843
325[18] Took effect on November 27, 2002.
326 [19] Vide TSN, June 15, 2004, pp. 81-85.
327 [20] TSN, August 10, 2004, pp. 6-7.
 259
IN FINE, as the failure to comply with the aforesaid requirements of
the law compromised the identity of the items seized, which is the corpus
delicti of each of the crimes charged against appellant, 328[21] his acquittal is
in order.

This leaves it unnecessary to still dwell on the first and third

assignments of error.

WHEREFORE, the Petition is GRANTED. The assailed decision

is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y
Burac, is ACQUITED of the crimes charged.

PEOPLE VS. SAMUEL OBMIRANIS, G.R. No.

181492, December 16, 2008

TINGA, J.:

This is an appeal filed by Samuel Obmiranis y Oreta

(appellant) who was charged with violation of Section 5 in relation
to Section 26 of Republic Act (R.A.) No. 9165.329[1] He was allegedly
caught in a buy-bust operation by elements of the Manila Western
Police District (MWPD) while offering to sell methylamphetamine
hydrochloride, a dangerous drug locally known as shabu. The
criminal information filed with the Regional Trial Court (RTC) of
Manila, Branch 2330[2] accused him as follows:

That on or about May 18, 2004, in the City of

Manila, Philippines, the said accused, not having been
authorized by law to sell, trade, deliver or give away to
another any dangerous drug, did then and there willfully,
unlawfully and knowingly attempt to sell or offer for sale
one (1) transparent plastic sachet containing TWO POINT
EIGHT ZERO ZERO (2.800) grams of white crystalline
substance known as “SHABU” containing
methylamphetamine hydrochloride, a dangerous drug.

Contrary to law.331[3]

At the pre-trial, both the prosecution and the defense stipulated

on the qualification of Forensic Chemist Elisa Reyes and, thus, both
parties dispensed with her testimony. The prosecution further
admitted that the forensic chemist who analyzed the seized the
[21]
328 People v. Laxa, 414 Phil. 156, 170 (2001) citing People v. Rigodon, 238 SCRA 27 (1994).
329
330
331
 260
confiscated substance—which yielded positive for
methylamphetamine hydrochloride content—did not have personal
knowledge of the ultimate source of the drug.332[4]

Appellant was brought to trial after having entered a negative

333[5]
plea. The prosecution then proceeded to prove the charge
against him through the lone testimony of police officer Jerry
Velasco (Velasco). Velasco was the alleged leader of the raiding
team that apprehended appellant on 18 May 2004 at the corner of
G.Tuazon and Jhocson Streets in Sampaloc, Manila.334[6]

The narrative woven by Velasco established the following

facts: On 17 May 2004, Police Superintendent Marcelino Pedrozo
(Pedrozo) of the MWPD organized a buy-bust team on the
information of a confidential informant that the latter was able to
place an order for half a “bulto” of shabu with appellant. Velasco
was designated as the team leader and the poseur-buyer, with Police
Officers Wilfredo Cinco, Edgardo Palabay, Roberto Benitez and
one335[7]confidential informant as members.336[8] Pedrozo gave the
team a marked 500-peso bill to be used as buy-bust money which
was placed on top of a deck of boodle money. The team informed
the Philippine Drug Enforcement Agency (PDEA) of the impending
operation,337[9] entered the same in the blotter 338[10] and proceeded to
Bambang in G.Tuazon Street just before 12 a.m. of 18 May
2004—the appointed time and date that the confidential informant
and appellant had agreed to meet. The informant joined Velasco in
his car, and they awaited the arrival of appellant at the corner of
G.Tuazon and Jhocson Streets. 339[11] At around 12:30 a.m., appellant
on board a car arrived at the scene and seeing the informant he
approached the latter. The informant introduced Velasco to
appellant and said that Velasco would like to buy one-half “bulto” of
shabu. Velasco negotiated with appellant to lower the price but the
latter refused. Velasco then insisted that he must first see the
merchandise. Appellant went back to his car, took the item and
brought it to Velasco. Velasco readily recognized the item as a
plastic sachet containing a white crystalline substance. When
appellant asked for payment, he seemed to have recognized
Velasco’s co-officer because he uttered the words, “May pulis yata.”
At that point, he was arrested just as he was trying to get back to his
car.340[12]

332
333
334
335
336
337
338
339
340
 261
According to Velasco, he was the one who effected the arrest
but it was Cinco who seized the plastic sachet from appellant. He
further stated that immediately after the arrest, he and his team
brought the seized item to the police headquarters and there, in his
presence, Cinco marked the same with the initials “SOO.” At the
trial, he identified the plastic sachet as that seized from appellant as
well as the marking made by Cinco on it. Furthermore, he admitted
on cross-examination that there was no evidence custodian
designated and that he could not remember if the seized item had
been inventoried and photographed in the presence of the accused;
that Cinco put the item in his pocket after the same was recovered
and did not mark it on the spot and that the markings made on the
buy-bust money had not been entered in the blotter.341[13]

The chemistry report issued at the instance of Pedrozo and

signed by Forensic Chemical Officer Maritess Mariano of the PNP
Crime Laboratory revealed that the specimen supposedly seized
from appellant yielded positive of methylamphetamine
hydrochloride content.342[14]

Taking the stand, appellant boldly asserted that he was merely

framed up by the buy-bust team, and strongly denied having
transacted the alleged sale of shabu with Velasco and the
confidential informant. He claimed that he was taken by Velasco
and his team not on 18 May 2004 but rather on 17 May 2004 at 7:00
p.m. along Santa Teresita Street, Sampaloc, Manila; 343[15] that he was
there to see his girlfriend who was residing in that area; that when he
was arrested by two men in civilian clothes, he was not committing
any crime; that he asked them why they were arresting him but
neither of them gave an answer and instead one of them grabbed
him by his shoulder and ushered him inside a police car; that once
inside the car, one of the men pulled out a gun with which he hit his
neck, kicked him and uttered, “Makulit ka ha, yuko!”; that he asked
them why they were doing that to him when in fact he merely told
them to park their car properly on the street; that they cuffed his
hands at the back and the driver, Velasco, asked if he could give
them P200,000.00; that he answered he did not have that much
money; that they drove the car around and told him that if he could
not give them the money then he must just find for them someone
who sells drugs in large-scale (“Magturo ka ng nagbebenta ng
droga, iyong malakihan ha!”); that because he said he did not know
anyone who was into selling drugs, he was taken to the U.N. Avenue
police headquarters; that he was not detained at the headquarters but
rather, he was brought to the second floor where the two arresting
officers demanded P50,000.00 from him; that the demand was then
341
342
343
 262
reduced to P30,000.00 in exchange for the mitigation of his case. 344
[16]
Olivia Ismael, another defense witness who introduced herself
as a friend of appellant’s girlfriend and who admitted having
witnessed appellant’s arrest, corroborated the material points of
appellant’s testimony.345[17]

In its 23 February 2006 Decision, the RTC found appellant

guilty beyond reasonable doubt of the offense charged. He was
sentenced to suffer the penalty of life imprisonment, and to pay a
P500,000.00 fine without subsidiary imprisonment as well as the
costs.346[18]

Appellant interposed an appeal with the Court of Appeals

in which he reiterated that the prosecution was unable to
establish his guilt beyond reasonable doubt in view of the failure
to establish the chain of custody of the illegal drugs and that it
was likewise unable to establish the consummation of the alleged
sale of drugs.347[19] For its part, the People, through the Office of
the Solicitor General (OSG), posited that the fact that all the
essential elements of a consummated sale of dangerous drug had not
been completely shown was immaterial because the charge involved
a mere attempt or offer to sell which had been duly established by
the prosecution.348[20] It also maintained that the chain of custody of
the seized shabu had been duly established because the requirements
in taking custody of seized narcotics provided for in Dangerous
Drugs Board Regulation No. 1, series of 2002 349[21] admit of liberal
interpretation.350[22]

In its 4 September 2007 Decision, 351[23] the Court of Appeals

affirmed in toto the trial court’s decision.

The appeal has to be granted.

In criminal prosecutions, fundamental is the requirement that

the elemental acts constituting the offense be established with moral
certainty as this is the critical and only requisite to a finding of guilt.
In prosecutions involving narcotics, the narcotic substance itself
constitutes the corpus delicti of the offense and the fact of its
existence is vital to sustain a judgment of conviction beyond
reasonable doubt.352[27] It is therefore of prime importance that in
these cases, the identity of the dangerous drug be likewise
344
345
346
347
348
349
350
351
352
 263
353[28]
established beyond reasonable doubt. In other words, it must be
established with unwavering exactitude that the dangerous drug
presented in court as evidence against the accused is the same as that
seized from him in the first place. The chain of custody requirement
performs this function in that it ensures that unnecessary doubts
concerning the identity of the evidence are removed.354[29]

Board Regulation No. 1, series of 2002 defines chain of

custody as “the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction.” As a method of
authenticating evidence, the chain of custody rule requires that the
admission of the exhibit be preceded by evidence sufficient to
support a finding that the matter in question is what the proponent
claims it to be.355[30] It would thus include testimony about every
link in the chain, from the moment the item was seized to the time it
is offered in court as evidence, such that every person who handled
the same would admit how and from whom it was received, where it
was and what happened to it while in the witness’ possession, the
condition in which it was received and the condition in which it was
delivered to the next link in the chain. The same witnesses would
then describe the precautions taken to ensure that there had been no
change in the condition of the item and no opportunity for someone
not in the chain to have possession of the same. 356[31] It is from the
testimony of every witness who handled the evidence from which a
reliable assurance can be derived that the evidence presented in
court is one and the same as that seized from the accused.

The prosecution evidence in the case at bar, however, does not

suffice to afford such assurance. Of all the people who came into
direct contact with the sachet of shabu purportedly seized from
appellant, only Velasco was able to observe the uniqueness thereof
in court. Cinco, who, according to Velasco, took initial custody of
the plastic sachet at the time of arrest and who allegedly marked the
same with the initials “SOO” at the police station, was not even
presented in court to directly observe the uniqueness of the
specimen and, more importantly, to acknowledge the marking as his
own. The same is true with respect to the laboratory personnel who
could have but nevertheless failed to testify on the circumstances
under which he received the specimen at the laboratory for analysis
and testing, as well as on the conduct of the examination which was
administered on the specimen and what he did with it at the time it

353
354
355
356
 264
was in his possession and custody. Aside from that, it was not
reasonably explained why these same witnesses were not able to
testify in court. While indeed the prosecution and the defense had
stipulated on the qualification of the forensic chemist, dispensed
with his testimony and admitted that said forensic chemist had no
personal knowledge of the ultimate source of the drug submitted for
examination, nevertheless, these stipulations and admission pertain
only to a certain Elisa G. Reyes and not to Forensic Chemical
Officer Maritess Mariano who, based on the chemistry report, was
the one who examined the contents of the plastic sachet at the crime
laboratory.

In view of these loopholes in the evidence adduced against

appellant, it can be reasonably concluded that the prosecution was
unable to establish the identity of the dangerous drug and in effect
failed to obliterate the hypothesis of appellant’s guiltlessness.

Be that as it may, although testimony about a perfect chain

does not always have to be the standard because it is almost always
impossible to obtain, an unbroken chain of custody indeed
becomes indispensable and essential when the item of real
evidence is a narcotic substance. A unique characteristic of
narcotic substances such as shabu is that they are not distinctive and
are not readily identifiable as in fact they are subject to scientific
analysis to determine their composition and nature.357[32] And
because they cannot be readily and properly distinguished visually
from other substances of the same physical and/or chemical nature,
they are susceptible to alteration, tampering, contamination, 358[33]
substitution and exchange—359[34] whether the alteration, tampering,
contamination, substitution and exchange be inadvertent or
otherwise not.360[35] It is by reason of this distinctive quality that the
condition of the exhibit at the time of testing and trial is critical. 361[36]
Hence, in authenticating narcotic specimens, a standard more
stringent than that applied to objects which are readily identifiable
must be applied—a more exacting standard that entails a chain of
custody of the item with sufficient completeness if only to render it
improbable that the original item has either been exchanged with
another or contaminated or tampered with.362[37]

The Court certainly cannot reluctantly close its eyes to the

possibility of substitution, alteration or contamination—whether
intentional or unintentional—of narcotic substances at any of the
links in the chain of custody thereof especially because practically
357
358
359
360
361
362
 265
such possibility is great where the item of real evidence is small and
is similar in form to other substances to which people are familiar in
their daily lives.363[38] Graham v. State364[39] in fact acknowledged this
danger. In that case, a substance later shown to be heroin was
excluded from the prosecution evidence because prior to
examination, it was handled by two police officers who, however,
did not testify in court on the condition and whereabouts of the
exhibit at the time it was in their possession. The court in that case
pointed out that the white powder seized could have been indeed
heroin or it could have been sugar or baking powder. It thus declared
that the state must be able to show by records or testimony the
continuous whereabouts of the exhibit at least between the time it
came into the possession of police officers until it was tested in the
laboratory to determine its composition.365[40]

Reasonable safeguards are provided for in our drugs

laws to protect the identity and integrity of narcotic
substances and dangerous drugs seized and/or recovered
from drug offenders. Section 21366[41] of R.A. No. 9165
materially requires the apprehending team having initial
custody and control of the drugs to, [1] immediately after
seizure and confiscation, [2] physically inventory and [3]
photograph the same in the presence of the accused or
the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice, and any elected public official who [4] shall be
required to sign the copies of the inventory and be given
a copy thereof. The same requirements are also found in Section
2367[42] of its implementing rules368[43] as well as in Section 2369[44] of
the Dangerous Drugs Board Regulation No. 1, series of 2002.370[45]

These guidelines, however, were not shown to have been

complied with by the members of the buy-bust team, and nothing on
record suggests that they had extended reasonable efforts to comply
with the statutory requirements in handling the evidence. Velasco,
the leader of the raiding team, himself admitted that as soon as
appellant was arrested, Cinco had taken custody of the plastic sachet
of shabu, placed it in his pocket and brought the same together with
appellant to the police station. It was at the police station—and not
363
364
365
366
367
368
369
370
 266
at the place where the item was seized from appellant—where
according to him (Velasco), Cinco had placed the initials “SOO ” on
the specimen. Velasco never even mentioned that the identifying
mark on the specimen was placed in appellant’s presence; he could
not even remember whether or not the specimen had been properly
inventoried and photographed at least in appellant’s presence. Even
more telling is the fact that, as elicited from Velasco himself during
his cross-examination, no evidence custodian had been designated
by the raiding team to safeguard the identity and integrity of the
evidence supposedly seized from appellant.371[46]

All these aforementioned flaws in the conduct of the post-

seizure custody of the dangerous drug allegedly recovered from
appellant, taken together with the failure of the key persons who
handled the same to testify on the whereabouts of the exhibit before
it was offered in evidence in court, militates against the
prosecution’s cause because it not only casts doubt on the identity of
the corpus delicti but also tends to discredit, if not totally negate, the
claim of regularity in the conduct of official police operation.

What we can fairly assume is that the Court of Appeals had

overlooked the significance of these glaring details in the records of
the case as it placed blind reliance right away on the credibility of
Velasco’s testimony and on the presumption of regularity and
thereby it failed to properly account for the missing substantial links
in the chain of custody of the evidence.

It needs no elucidation that the presumption of regularity in the

performance of official duty must be seen in the context of an
existing rule of law or statute authorizing the performance of an act
or duty or prescribing a procedure in the performance thereof. The
presumption, in other words, obtains only where nothing in the
records is suggestive of the fact that the law enforcers involved
deviated from the standard conduct of official duty as provided for
in the law. Otherwise, where the official act in question is irregular
on its face, an adverse presumption arises as a matter of course. 372[48]
There is indeed merit in the contention that where no ill motives to
make false charges was successfully attributed to the members of the
buy-bust team, the presumption prevails that said police operatives
had regularly performed their duty, but the theory is correct only
where there is no showing that the conduct of police duty was
irregular. People v. Dulay373[49] and People v. Ganenas374[50] in fact
both suggest that the presumption of regularity is disputed where
there is deviation from the regular performance of duty. Suffice it to

371
372
373
374
 267
say at this point that the presumption of regularity in the conduct of
police duty is merely just that—a mere presumption disputable by
contrary proof and which when challenged by the evidence cannot
be regarded as binding truth.375[51]

It must be emphasized at this juncture that what can reasonably

be presumed based on the records of this case is that Velasco is
aware of his duties and responsibilities as an agent of the
government in its anti-narcotics campaign. A member of the anti-
narcotics division of the police since 1997,376[52] Velasco can be
reasonably presumed to be adept in and mindful of the proper
procedure in apprehending drug offenders, securing and taking
custody of the evidence obtained in police operations such as this
one and preserving the integrity of the evidence by protecting the
chain of custody thereof.377[53] However, for reasons as obvious as
intimated above, even this presumption is unworthy of credit.

All told, in view of the deviation by the buy-bust team from

the mandated conduct of taking post-seizure custody of the
dangerous drug in this case, there is no way to presume that the
members thereof had performed their duties regularly. Even
granting that we must blindly rely on the credibility of Velasco’s
testimony, still, the prosecution evidence would fall short of
satisfying the quantum of evidence required to arrive at a finding of
guilt beyond reasonable doubt inasmuch as the evidence chain failed
to solidly connect appellant with the seized drug in a way that would
establish that the specimen is one and the same as that seized in the
first place and offered in court as evidence. The Court cannot
indulge in the presumption of regularity of official duty if only to
obliterate the obvious infirmity of the evidence advanced to support
appellant’s conviction. In Mallillin v. People,378[54] we categorically
declared that the failure of the prosecution to offer in court the
testimony of key witnesses for the basic purpose of establishing a
sufficiently complete chain of custody of a specimen of shabu and
the irregularity which characterized the handling of the evidence
before the same was finally offered in court, materially conflict with
every proposition as to the culpability of the accused. For the same
plain but consequential reason, we will not hesitate to reverse the
judgment of conviction in the present appeal.

One final word. In no uncertain terms must it be stressed that

basic and elementary is the presupposition that the burden of
proving the guilt of an accused rests on the prosecution which must
draw strength from its own evidence and not from the weakness of

375
376
377
378
 268
the defense. The rule, in a constitutional system like ours, is
invariable regardless of the reputation of the accused because the
law presumes his innocence until the contrary is shown. In dubio
pro reo. When moral certainty as to culpability hangs in the
balance, acquittal on reasonable doubt inevitably becomes a matter
of right.379[55]

WHEREFORE, the assailed Decision of the Court of Appeals

in CA-G.R. CR.-H.C. No. 02158 affirming the judgment of
conviction rendered by the Regional Trial Court of Manila, Branch
2, is REVERSED and SET ASIDE. Appellant Samuel Obmiranis y
Oreta is ACQUITTED on reasonable doubt and is thus accordingly
ordered released immediately from confinement, unless he is
lawfully confined for another offense.

JUNIE MALLILLIN Y. LOPEZ VS. PEOPLE,

G.R. No. 172953 , April 30, 2008

THE FACTS:

On the strength of a warrant of search and seizure issued by

the RTC of Sorsogon City, Branch 52, a team of five police officers
raided the residence of petitioner in Barangay Tugos, Sorsogon City
on 4 February 2003. The team was headed by P/Insp. Catalino
Bolanos (Bolanos), with PO3 Roberto Esternon (Esternon), SPO1
Pedro Docot, SPO1 Danilo Lasala and SPO2 Romeo Gallinera
(Gallinera) as members. The search—conducted in the presence of
barangay kagawad Delfin Licup as well as petitioner himself, his
wife Sheila and his mother, Norma—allegedly yielded two (2)
plastic sachets of shabu and five (5) empty plastic sachets
containing residual morsels of the said substance.

Accordingly, petitioner was charged with violation of Section

11, Article II of Republic Act No. 9165, otherwise known as The
Comprehensive Dangerous Drugs Act of 2002.

That on or about the 4th day of February 2003, at about 8:45 in

the morning in Barangay Tugos, Sorsogon City, Philippines, the said
accused did then and there willfully, unlawfully and feloniously
have in his possession, custody and control two (2) plastic sachets of
methamphetamine hydrochloride [or] “shabu” with an aggregate
weight of 0.0743 gram, and four empty sachets containing “shabu”
residue, without having been previously authorized by law to
possess the same.

CONTRARY TO LAW.
379
 269

Petitioner entered a negative plea. At the ensuing trial, the

prosecution presented Bolanos, Arroyo and Esternon as witnesses.

Taking the witness stand, Bolanos, the leader of the raiding

team, testified on the circumstances surrounding the search as
follows: that he and his men were allowed entry into the house by
petitioner after the latter was shown the search warrant; that upon
entering the premises, he ordered Esternon and barangay kagawad
Licup, whose assistance had previously been requested in executing
the warrant, to conduct the search; that the rest of the police team
positioned themselves outside the house to make sure that nobody
flees; that he was observing the conduct of the search from about a
meter away; that the search conducted inside the bedroom of
petitioner yielded five empty plastic sachets with suspected shabu
residue contained in a denim bag and kept in one of the cabinets,
and two plastic sachets containing shabu which fell off from one of
the pillows searched by Esternon—a discovery that was made in the
presence of petitioner.380[10] On cross examination, Bolanos admitted
that during the search, he was explaining its progress to petitioner’s
mother, Norma, but that at the same time his eyes were fixed on the
search being conducted by Esternon.

Esternon testified that the denim bag containing the empty

plastic sachets was found “behind” the door of the bedroom and not
inside the cabinet; that he then found the two filled sachets under a
pillow on the bed and forthwith called on Gallinera to have the items
recorded and marked.381[12] On cross, he admitted that it was he
alone who conducted the search because Bolanos was standing
behind him in the living room portion of the house and that
petitioner handed to him the things to be searched, which included
the pillow in which the two sachets of shabu were kept;382[13] that he
brought the seized items to the Balogo Police Station for a “true
inventory,” then to the trial court383[14] and thereafter to the
laboratory.384[15]

Supt. Lorlie Arroyo (Arroyo), the forensic chemist who

administered the examination on the seized items, was presented as
an expert witness to identify the items submitted to the laboratory.
She revealed that the two filled sachets were positive of shabu and

380
[10]
TSN, 22 April 2003, pp. 6-9.

381
[12]
TSN, 23 July 2003, pp. 6-7, 10.

382[13]Id. at 16-17.

383[14]TSN, 23 July 2003, pp. 13-15.

384[15]Id. at 9.
 270
that of the five empty sachets, four were positive of containing
residue of the same substance.385[16] She further admitted that all
seven sachets were delivered to the laboratory by Esternon in the
afternoon of the same day that the warrant was executed except that
it was not she but rather a certain Mrs. Ofelia Garcia who received
the items from Esternon at the laboratory .]

The evidence for the defense focused on the irregularity of the

search and seizure conducted by the police operatives. Petitioner
testified that Esternon began the search of the bedroom with Licup
and petitioner himself inside. However, it was momentarily
interrupted when one of the police officers declared to Bolanos that
petitioner’s wife, Sheila, was tucking something inside her
underwear. Forthwith, a lady officer arrived to conduct the search of
Sheila’s body inside the same bedroom. At that point, everyone
except Esternon was asked to step out of the room. So, it was in
his presence that Sheila was searched by the lady officer.
Petitioner was then asked by a police officer to buy cigarettes at a
nearby store and when he returned from the errand, he was told that
nothing was found on Sheila’s body.386[18] Sheila was ordered to
transfer to the other bedroom together with her children.

Petitioner asserted that on his return from the errand, he was

summoned by Esternon to the bedroom and once inside, the officer
closed the door and asked him to lift the mattress on the bed. And as
he was doing as told, Esternon stopped him and ordered him to lift
the portion of the headboard. In that instant, Esternon showed him
“sachet of shabu” which according to him came from a pillow on the
bed.387[20] Petitioner’s account in its entirety was corroborated in its
material respects by Norma, barangay kagawad Licup and Sheila in
their testimonies. Norma and Sheila positively declared that
petitioner was not in the house for the entire duration of the search
because at one point he was sent by Esternon to the store to buy
cigarettes while Sheila was being searched by the lady officer.
Licup for his part testified on the circumstances surrounding the
discovery of the plastic sachets. He recounted that after the five
empty sachets were found, he went out of the bedroom and into the
living room and after about three minutes, Esternon, who was left
inside the bedroom, exclaimed that he had just found two filled
sachets.]

On 20 June 2004 the trial court rendered its Decision declaring

petitioner guilty beyond reasonable doubt of the offense charged.
385
[16]
TSN, 28 May 2003, p. 14. The results of the chemical analysis are embodied in Chemistry Report No. D-037-03. See records, p.
18.

386
[18]
TSN, 2 December 2003, pp. 6-10.

387[20]Id. at 11-12.
 271
Petitioner was condemned to prison for twelve years (12) and one
(1) day to twenty (20) years and to pay a fine of P300,000.00. The
trial court reasoned that the fact that shabu was found in the house
of petitioner was prima facie evidence of petitioner’s animus
possidendi sufficient to convict him of the charge inasmuch as
things which a person possesses or over which he exercises acts of
ownership are presumptively owned by him. It also noted
petitioner’s failure to ascribe ill motives to the police officers to
fabricate charges against him.

Hence, this Appeal.

HELD:

Prosecutions for illegal possession of prohibited drugs

necessitates that the elemental act of possession of a prohibited
substance be established with moral certainty, together with the fact
that the same is not authorized by law. The dangerous drug itself
constitutes the very corpus delicti of the offense and the fact of its
existence is vital to a judgment of conviction. Essential therefore in
these cases is that the identity of the prohibited drug be
established beyond doubt . Be that as it may, the mere fact of
unauthorized possession will not suffice to create in a reasonable
mind the moral certainty required to sustain a finding of guilt. More
than just the fact of possession, the fact that the substance illegally
possessed in the first place is the same substance offered in court as
exhibit must also be established with the same unwavering
exactitude as that requisite to make a finding of guilt. The chain of
custody requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are
removed.

As a method of authenticating evidence, the chain of custody

rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness’
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the
same.
 272
Indeed, the likelihood of tampering, loss or mistake with
respect to an exhibit is greatest when the exhibit is small and is one
that has physical characteristics fungible in nature and similar in
form to substances familiar to people in their daily lives. 388[41]
Graham vs. State389[42] positively acknowledged this danger. In that
case where a substance later analyzed as heroin—was handled by
two police officers prior to examination who however did not testify
in court on the condition and whereabouts of the exhibit at the time
it was in their possession—was excluded from the prosecution
evidence, the court pointing out that the white powder seized could
have been indeed heroin or it could have been sugar or baking
powder. It ruled that unless the state can show by records or
testimony, the continuous whereabouts of the exhibit at least
between the time it came into the possession of police officers until
it was tested in the laboratory to determine its composition,
testimony of the state as to the laboratory’s findings is
inadmissible.390[43]

A unique characteristic of narcotic substances is that they are

not readily identifiable as in fact they are subject to scientific
analysis to determine their composition and nature. The Court
cannot reluctantly close its eyes to the likelihood, or at least the
possibility, that at any of the links in the chain of custody over the
same there could have been tampering, alteration or substitution of
substances from other cases—by accident or otherwise—in which
similar evidence was seized or in which similar evidence was
submitted for laboratory testing. Hence, in authenticating the same,
a standard more stringent than that applied to cases involving
objects which are readily identifiable must be applied, a more
exacting standard that entails a chain of custody of the item with
sufficient completeness if only to render it improbable that the
original item has either been exchanged with another or been
contaminated or tampered with.

A mere fleeting glance at the records readily raises significant

doubts as to the identity of the sachets of shabu allegedly seized
from petitioner. Of the people who came into direct contact with the
seized objects, only Esternon and Arroyo testified for the specific
purpose of establishing the identity of the evidence. Gallinera, to
whom Esternon supposedly handed over the confiscated sachets for
recording and marking, as well as Garcia, the person to whom
Esternon directly handed over the seized items for chemical analysis
at the crime laboratory, were not presented in court to establish the
circumstances under which they handled the subject items. Any

388[41]Graham v. State, 255 N.E2d 652, 655.

389[42]Graham v. State, 255 N.E2d 652.

390
[43]
Graham v. State, 255 N.E2d 652, 655.
 273
reasonable mind might then ask the question: Are the sachets of
shabu allegedly seized from petitioner the very same objects
laboratory tested and offered in court as evidence?

The prosecution’s evidence is incomplete to provide an

affirmative answer. Considering that it was Gallinera who recorded
and marked the seized items, his testimony in court is crucial to
affirm whether the exhibits were the same items handed over to him
by Esternon at the place of seizure and acknowledge the initials
marked thereon as his own. The same is true of Garcia who could
have, but nevertheless failed, to testify on the circumstances under
which she received the items from Esternon, what she did with them
during the time they were in her possession until before she
delivered the same to Arroyo for analysis.

Given the foregoing deviations of police officer Esternon from

the standard and normal procedure in the implementation of the
warrant and in taking post-seizure custody of the evidence, the blind
reliance by the trial court and the Court of Appeals on the
presumption of regularity in the conduct of police duty is manifestly
misplaced. The presumption of regularity is merely just that—a
mere presumption disputable by contrary proof and which when
challenged by the evidence cannot be regarded as binding truth. 391[52]
Suffice it to say that this presumption cannot preponderate over the
presumption of innocence that prevails if not overthrown by proof
beyond reasonable doubt.392[53] In the present case the lack of
conclusive identification of the illegal drugs allegedly seized from
petitioner, coupled with the irregularity in the manner by which the
same were placed under police custody before offered in court,
strongly militates a finding of guilt.

In our constitutional system, basic and elementary is the

presupposition that the burden of proving the guilt of an accused lies
on the prosecution which must rely on the strength of its own
evidence and not on the weakness of the defense. The rule is
invariable whatever may be the reputation of the accused, for the
law presumes his innocence unless and until the contrary is
shown.393[54] In dubio pro reo. When moral certainty as to culpability
hangs in the balance, acquittal on reasonable doubt inevitably
becomes a matter of right.

The Equipoise Rule; Evidence of guilt and

evidence of innocence are about even;
effect of non-presentation of forensic

391[52]People v. Ambrosio, G.R. No. 135378, 14 April 2004, 427 SCRA 312, 318 citing People v. Tan, 382 SCRA 419 (2002).

392[53]People v. Ambrosio, G.R. No. 135378, 14 April 2004, 427 SCRA 312, 318 citing People v. Tan, 382 SCRA 419 (2002).
393
[54]
People v. Laxa, id.
 274
chemist who examined the shabu or
marijuana— ground for acquittal.

PEOPLE OF THE PHILIPPINES vs. MONALYN

CERVANTES, G.R. No. 181494, March 17, 2009

VELASCO, JR., J.:

This is an appeal from the Decision dated July 19, 2007 of the Court
of Appeals (CA) in CA-G.R. CR-H.C. No. 00476 which affirmed the
April 23, 2004 Decision in Criminal Case No. 00-181929 of the Regional
Trial Court (RTC), Branch 53 in Manila. The RTC found accused-
appellant Monalyn Cervantes guilty beyond reasonable doubt of violation
of Section 15, Article III of Republic Act No. (RA) 6425 or the
Dangerous Drugs Act of 1972, as amended.

The records show the following facts:

In an Information dated April 7, 2000, accused-appellant and three

others were charged with violation of Sec. 15, Art. III of RA 6425 (selling
or distributing a regulated drug), allegedly committed as follows:

That, on or about April 5, 2000, in the City of Manila,

Philippines, and within the jurisdiction of this Honorable
Court, accused ISIDRO ARGUSON y ARENDELA, @ Tisoy,
MONALYN [CERVANTES] y SOLAR @ Mona, WILSON
DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard,
conspiring, confederating and mutually helping one another,
acting in common accord, did then and there, willfully,
unlawfully and feloniously, for the amount of FIVE
HUNDRED THOUSAND (P500,000.00) PESOS, Philippine
Currency, sell, deliver and give away to a poseur-buyer, FOUR
HUNDRED SEVENTY THREE POINT SEVENTY SIX
(473.76) GRAMS OF METHAMPHETAMINE
[HYDROCHLORIDE], commonly known as shabu, a
regulated drug, without authority of law or the corresponding
license therefor.

CONTRARY TO LAW.394[1]

Accused-appellant and her co-accused pleaded not guilty to the

charge. In the ensuing trial, the prosecution presented in evidence the oral
testimonies of William Todavia, PO3 Reynaldo Ramos of the Philippine
National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector
Lorna Tria, a forensic chemical officer of the same regional office.

394[1] Rollo, pp. 6-7.

 275
The People’s version of the incident, as summarized by the CA in
the decision now on appeal, is as follows:

On April 5, 2000, the Regional Special Operations Group IV

(RSOG-IV), based at Camp Vicente Lim in Calamba, Laguna, received a
tip from a deep penetration agent (DPA) about a group of drug traffickers
led by Isidro Arguson operating in Cavite. Acting on this bit of
information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and
PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted
at Arguson’s rest house in Barangay Lambingan, Tanza, Cavite.395[2] Upon
arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as
poseur-buyers, were introduced by the DPA to Arguson as the buyers of
PhP 500,000 worth of shabu, simultaneously showing him a bundle of
money. Since Arguson did not have enough supply of shabu in the
premises, he instructed the would-be-buyers to follow him to Pasay City.
For the purpose, he hired a vehicle owned by Todavia.
At about three o’clock in the afternoon of that day, in front of the
McDonald’s branch in P. Ocampo St., Pasay City, 396[3] Arguson instructed
the would-be-buyers to wait for someone who will come out from the
nearby Estrella St. Very much later, accused-appellant emerged from
Estrella St. and approached PO3 Ramos to check if he still had the money.
After being shown the money bundle, accused-appellant left, only to
return a few minutes later this time with Arguson, Wilson Del Monte, who
was holding a black plastic bag, and Richard Requiz. Arguson then took
from Del Monte the bag, later found to contain 473.76 grams of shabu
packed in six small self-sealing transparent bags, and handed it to PO2
Balosbalos, who in turn gave him the bundle of boodle money. Finally,
PO3 Ramos gave the pre-arranged signal to indicate the consummation of
the drug deal and introduced himself as policeman. Accused-appellant and
her scampering companions were later arrested and brought to and booked
at Camp Vicente Lim.

The black plastic bag containing the six small self-sealing bags of
white crystalline substance was likewise taken to Camp Vicente Lim
where PO3 Ramos prepared the booking sheets and arrest reports and the
request for a qualitative analysis of the seized items. Regional Crime
Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then
conducted the standard physical and chemical examinations on the
specimen referred to her.

On April 6, 2000, C/I Geronimo prepared and completed Chemistry

Report No. D-115800 on the crystalline substance. Per her report, the
substance tested positive for methamphetamine hydrochloride or shabu.

Apart from the witnesses’ affidavits and other documents, the

prosecution, in the hearing of March 4, 2002, offered in evidence the
395[2] Id. at 5.
[3]
396 The McDonald’s branch in P. Ocampo St. was later determined to be in Manila.
 276
397[4]
following exhibits, inclusive of its sub markings, which, as may be
expected, were objected to by the defense: (a) Exhibit “ B” – Chemistry
Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit “ C” –
Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory
Service, requesting for qualitative analysis of the contents of the six
transparent plastic bags; (c) Exhibits “ D” and “ D-1” to “ D-6” – Black
plastic bag with markings; and six (6) self-sealing transparent bags
allegedly containing the confiscated shabu; and (d) Exhibit “ F” – Receipt
of property seized signed by PO2 Balosbalos and by Todavia and PO3
Ramos as witnesses.

The CA decision likewise summarized the defense’s account of

what purportedly transpired, to wit:

Accused-appellant testified that after she did laundry

works at her house in Estrella Street near F.B. Harrison on
April 4, 2000, her youngest child asked her to go to
[McDonald’s], Vito Cruz branch, to buy ice cream. When they
arrived thereat at about 4:30 in the afternoon, there was a
commotion going on in front of the restaurant. She then saw a
woman who alighted from a nearby van and pointed her out to
her companions, one of whom [was] an old man boarded her
inside the van causing her to lose hold of her child. Thereafter,
two (2) younger male persons, whom she later came to know
as DEL MONTE and REQUIZ, were also boarded into the
same van. They were taken to a cemetery where another
vehicle came and took them to Camp Vicente Lim, where she
allegedly met ARGUSON for the first time.

On the other hand, accused DEL MONTE testified that

he was a parking boy around Vito Cruz and that on the day in
question, while he was watching a vehicle near [McDonald’s],
Vito Cruz branch, a commotion happened near his post. As he
moved backward from where he stood, he was suddenly
approached by a policeman who arrested him and boarded him
inside a vehicle together with CERVANTES and REQUIZ,
whom he did not know prior to that incident.

For his part, accused REQUIZ testified that on the date

and time in question, he was riding a borrowed bicycle on his
way to the Cultural Center, passing by F.B. Harrison St., when
he bumped a parked van, wherefrom a man alighted and
cursed him, saying “pulis ako wag kang aalis dyan[!] ” The
man left and when he returned, accused CERVANTES was
with him. Thereafter, he was boarded into the van together
with the other accused.398[5]
[4]
397 Records, pp. 185-187.
[5]
398 Rollo, pp. 7-8.
 277

While not stated in the CA decision, Del Monte testified, like

accused-appellant, that he was taken to a cemetery somewhere in Cavite
where the arresting officers lingered for an hour before bringing him to
Camp Vicente Lim.399[6] These testimonies remained uncontroverted.

Arguson died during the course of the trial resulting in the dismissal
of the case against him.400[7]

On April 23, 2004, the RTC rendered judgment acquitting Del

Monte and Requiz but finding accused-appellant guilty as charged and
meting upon her the penalty of reclusion perpetua. The fallo of the RTC
Decision reads:

WHEREFORE, in view of the foregoing, judgment is

hereby rendered:

1. Finding accused MONALYN CERVANTES Y

SOLAR GUILTY beyond reasonable doubt of
violation of Sec. 15, Article III, of Republic Act No.
6425 as amended, and is sentenced to Reclusion
Perpetua and to pay a fine in the amount of
Php500,000.00; and

2. Finding the prosecution’s evidence insufficient to

prove the guilt of accused WILSON DEL MONTE
and RICHARD REQUIZ beyond reasonable doubt,
and who are hereby ACQUITTED.

SO ORDERED.401[8]

On May 18, 2004, accused-appellant filed a Notice of Appeal,

pursuant to which the RTC forwarded the records of the case to this Court.

Conformably with People v. Mateo,402[9] the Court directed the

transfer of the case to the CA where it was docketed as CA-G.R. CR-H.C.
No. 00476. Before the appellate court, accused-appellant urged her
acquittal on the ground of “insufficiency of evidence,” particularly stating
that the “forensic chemist who actually conducted the laboratory
examination on the specimens allegedly recovered from the accused was
not presented in court x x x [and] hence, there was no clear identification
of the contents of the confiscated sachets.”403[10]

[6]
399 TSN, January 20, 2003, pp. 10-11.
[7]
400 Rollo, p. 8.
[8]
401 CA rollo, p. 30. Penned by Judge Reynaldo A. Alhambra.
[9]
402 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
[10]
403 CA rollo, pp. 81-82.
 278
404[11]
By its Decision dated July 19, 2007, the CA, finding the
elements necessary for the prosecution of illegal sale of drugs 405[12] to have
sufficiently been satisfied and the identification of accused-appellant
having been established, affirmed her conviction.

The CA rejected accused-appellant’s lament about one

Inspector Tria testifying on the chemistry report she did not prepare.
As the appellate court stressed, C/I Geronimo’s forensic report
“ carries the presumption of regularity in the performance of official
functions [and] the entries thereon x x x are prima facie evidence of
the facts therein stated.” The CA added the observation that absent
any evidence overturning the presumption of regularity in the
performance of official functions, the probative value and
admissibility of the forensic report prepared by C/I Geronimo, who
had resigned from the service, must be upheld even if she did not
personally testify in court.

On August 17, 2007, accused-appellant filed a Notice of Appeal of

the CA affirmatory decision.

On March 24, 2008, this Court required the parties to submit

supplemental briefs if they so desired. The parties manifested their
willingness to submit the case on the basis of the records already
submitted, thus veritably reiterating their principal arguments raised in the
CA, which on the part of accused-appellant would be:

THE [CA] GRAVELY ERRED IN FINDING THE

ACCUSED-APPELLANT GUILTY OF THE OFFENSE
CHARGED DESPITE THE INSUFFICIENCY OF
EVIDENCE FOR THE PROSECUTION.

For its part, the People, thru the Office of the Solicitor General,
counters that the prosecution has established that the buy-bust transaction
took place, has identified accused-appellant and her complicity in
Arguson’s illegal trade, and has presented the corpus delicti, as evidence.

The Court’ s Ruling

After a circumspect study, the Court resolves to acquit accused-

appellant, considering certain circumstances engendering reasonable
doubt as to her guilt.

We start off with the most basic, the testimony of the prosecution’s
principal witness, PO3 Ramos, who identified accused-appellant and
described her role in the conspiracy to sell shabu. In the witness box, PO3
[11]
404 Rollo, pp. 4-10. Penned by Associate Justice Estela M. Perlas-Bernabe and concurred in by Associate Justices
Vicente Q. Roxas and Lucas P. Bersamin.
[12]
405 (a) identity of the buyer and the seller, the object and the consideration; and (b) the delivery of the thing sold and
payment therefor.
 279
Ramos testified that, after being told by Arguson to wait for someone who
will come out from the street whence Arguson would enter, accused-
appellant emerged from said street, checked on the purchase money, asked
the operatives to wait, and later re-appeared. What happened next is
captured by the following answers of PO3 Ramos to the prosecutor’s
questions:

Q: What did you see when Cervantes already returned? A:

When Monalyn return the one holding the plastic bag was
Wilson, sir.

Q: Wilson? A: Yes, sir, together with Richard, Wilson,

Arguson, they were four (4).

Atty. Cruz: Your honor, may we move to strike that out x x x.

Fiscal Formoso: That’s part of the answer x x x now, when all

these accused here return with Monalyn Cervantes, what
happen[ed]?

A: Arguson took the plastic bag from Wilson, sir and handed it
to Balosbalos, Balosbalos gave Arguson the boodle money
while I flash the signal x x x then we apprehended them.406[13]

As may be noted, PO3 Ramos categorically stated that Del Monte

was among the four who emerged with Arguson from a street. Without
hesitation, PO3 Ramos pointed to Del Monte as the one holding the
plastic bag allegedly containing the prohibited substance until Arguson
took it from him and handed it over to PO2 Balosbalos. There is no
suggestion that accused-appellant, while at the crime scene, ever handled
the merchandise or its container. Yet, the trial court acquitted Requiz and
Del Monte, but convicted accused-appellant, stating: “Clearly, accused
Monalyn Cervantes’ complicity with accused Isidro Arguson in the sale of
shabu has been established by the testimony of PO3 Ramos.”407[14] But
two paragraphs later, the RTC went on to write:

x x x While PO3 Ramos testified that the bag was

initially held by accused Del Monte and then taken from him
by accused Arguson, there is no other evidence which can
support the charge of conspiracy with Arguson and Cervantes
x x x. The court does not find the evidence sufficient to pass
the test of moral certainty to find accused Del Monte liable as
charged. Even if PO3 Ramos saw him to have held the bag for
Arguson, it could have been possible that he was merely asked
by Cervantes or Arguson to carry the bag.408[15]

[13]
406 TSN, October 23, 2001, pp. 12-16.
[14]
407 CA rollo, p. 28.
[15]
408 Id. at 28-29.
 280

Before us then is a situation where two persons––accused-

appellant, a laundry woman; and Del Monte, a car park boy, in the
company of the ostensible pusher, Arguson, during the actual buy
bust––are being indicted, on the basis alone of the testimony of a witness,
with confederating with each and several others to sell shabu. The overt
acts performed by accused-appellant, as indicia of conspiracy, consisted of
allegedly verifying whether the poseur-buyer still had the purchase
money, disappearing from the scene and then coming back with the
principal player. On the other hand, Del Monte came accompanying
Arguson carrying the drug-containing plastic bag no less. As between the
two acts performed, carrying the bag would relatively have the more
serious implication being in itself a punishable act of possession of
regulated drugs. Both offered the defenses of denial and instigation, each
testifying that they just happened to be near or passing by McDonald ’s at
about 4:30 in the afternoon of April 4, 2000 when they were apprehended.
But the trial court, in its observation that “it could have been possible that
[Del Monte] was merely asked by x x x Arguson to carry the bag,”
extended to Del Monte the “benefit of the doubt,” a benevolence denied to
accused-appellant without so much of an acceptable explanation. Any
reasonable mind might ask: Why the contrasting treatment? Why consider
PO3 Ramos as a highly credible eyewitness as against accused-appellant,
but an unreliable one as against Del Monte, when both accused are
complete strangers to the policeman?

To paraphrase an unyielding rule, if the inculpatory testimony is

capable of two or more explanations, one consistent with the innocence of
the accused persons and the other consistent with their guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to
support a conviction.409[16]

But even if we were to cast aside the foregoing equipoise rule, a

reversal of the appealed decision is indicated on another but more
compelling ground. We refer to the postulate that the prosecution, having
failed to positively and convincingly prove the identity of the seized
regulated substance, is deemed to have also failed to prove beyond
reasonable doubt accused-appellant’s guilt. We shall explain.

In every prosecution for illegal sale of dangerous drug, what is

crucial is the identity of the buyer and seller, the object and its
consideration, the delivery of the thing sold, and the payment for it.
Implicit in these cases is first and foremost the identity and existence,
coupled with the presentation to the court of the traded prohibited
substance, this object evidence being an integral part of the corpus410[17]
delicti411[18] of the crime of possession or selling of regulated/prohibited
[16]
409 People v. Navarro, G.R. No. 173790, October 11, 2007, 535 SCRA 644, 653.
[17]
410 A Latin word which signifies “body.”
[18]
411 Literally body of the crime; in the legal sense, corpus delicti as referring to the fact of the commission of the crime
charged or to the substance of the crime; it does not refer to the actual physical evidence, such as ransom money in the crime of
 281
412[19]
drug. There can be no such crime when nagging doubts persist on
whether the specimen submitted for examination and presented in court
was what was recovered from, or sold by, the accused. 413[20] Essential,
therefore, in appropriate cases is that the identity of the prohibited drug be
established with moral certainty. This means that on top of the key
elements of possession or sale, the fact that the substance illegally
possessed and sold in the first place is the same substance offered in court
as exhibit must likewise be established with the same degree of certitude
as that needed to sustain a guilty verdict. And as we stressed in Malillin v.
People, the “chain of custody requirement performs this function in
that it ensures that unnecessary doubts concerning the identity of the
evidence are removed.”414[21] So it is that in a slew of cases the Court has
considered the prosecution’s failure to adequately prove that the specimen
submitted for laboratory examination was the same one supposedly seized
from the offending seller or possessor as ground for acquittal.415[22]

Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series

of 2002, or the “ Guidelines on the Custody and Disposition of
Seized Dangerous Drugs, Controlled Precursors and Essential
Chemicals, and Laboratory Equipment,” defines “chain of
custody,” thusly:

“ Chain of Custody” means the duly recorded authorized

movements and custody of seized drugs or controlled
chemicals x x x from the time of seizure/confiscation to receipt
in the forensic laboratory to safekeeping to presentation in
court for destruction. Such record of movements and custody
of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date
and time when such transfer of custody [was] made in the
course of safekeeping and use in court as evidence, and the
final disposition.416[23]

As a mode of authenticating evidence, the chain of custody rule

requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. In context, this would ideally include testimony
about every link in the chain, from the seizure of the prohibited drug up to
the time it is offered into evidence, in such a way that everyone who
touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness’ possession, the
condition in which it was received, and the condition in which it was
kidnapping for ransom, the cadaver of the person murdered, or the confiscated cases of blue seal cigarettes in the crime of
smuggling. See Rimorin, Sr. v. People, G.R. No. 146481, April 30, 2003, 402 SCRA 393, 400.
[19]
412 People v. Sanchez, G.R. No. 175832, October 10, 2008; citing Valdez v. People, G.R. No. 170180, November 23,
2007, 538 SCRA 611.
[20]
413 Valdez, supra note 19, at 628-629; citing People v. Ong, G.R. No. 137348, June 21, 2004, 432 SCRA 470.
[21]
414 G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632; citing American jurisprudence.
[22]
415 Valdez, supra; Ong, supra note 20.
[23]
416 In accordance with Sec. 21, Art. II of the Implementing Rules and Regulations (IRR) of RA 9165 or the
Comprehensive Dangerous Drugs Act of 2002 in relation to Sec. 81(b), Art. IX of RA 9165.
 282
417[24]
delivered to the next link in the chain. The need for the punctilious
observance of the chain-of-custody process in drug-related cases is
explained in Malillin in the following wise:

While testimony about a perfect chain is not always the

standard because it is almost always impossible to obtain,
an unbroken chain of custody becomes indispensable
and essential when the item of real evidence is not
distinctive and is not really identifiable, or when its
condition at the time of testing or trial is critical, or when
a witness has failed to observe its uniqueness. The same
standard likewise obtains in case the evidence is
susceptible to alteration, tampering, contamination and
even substitution and exchange. In other words, the
exhibit’s level of susceptibility to fungibility, alteration or
tampering––without regard to whether the same is
advertent or otherwise not––dictates the level of
strictness in the application of the chain of custody rule.

xxxx

A unique characteristic of narcotic substances is that they

are not readily identifiable as in fact they are subject to
scientific analysis to determine their composition and
nature. The Court cannot reluctantly close its eyes to the
likelihood, or at least the possibility, that at any of the
links in the chain of custody over the same there could
have been tampering, alteration or substitution of
substances from other cases––by accident or
otherwise––in which similar evidence was seized or in
which similar evidence was submitted for laboratory
testing. Hence, in authenticating the same, a standard
more stringent than that applied to cases involving
objects which are readily identifiable must be applied, a
more exacting standard that entails a chain of custody of
the item with sufficient completeness if only to render it
improbable that the original item has either been
exchanged with another or been contaminated or
tampered with.418[25] (Emphasis added.)

As the Court distinctly notes in this case, of the individuals who

came into direct contact with or had physical custody of the seized
regulated items, only PO3 Ramos testified for the specific purpose of
identifying the evidence. In the witness box, however, he did not indicate
how he and his companions, right after the buy bust, handled the seized
plastic bag and its contents. He did not name the duty desk officer at
[24]
417 Malillin, supra note 21.
[25]
418 Id. at 633-634.
 283
Camp Vicente Lim to whom he specifically turned over the confiscated
bag and sachets at least for recording. What is on record is Exhibit “C, ”
which, as earlier described, is a memorandum419[26] PO3 Ramos
prepared420[27] dated April 5, 2000 from the RSOG-IV Director to the
Chief, PNP R-IV Crime Laboratory Service, submitting for qualitative
analysis the white crystalline substance confiscated by the buy-bust group.
Needless to stress, the unnamed person who delivered the suspected
shabu and the recipient of it at the laboratory were no-show in court to
testify on the circumstances under which they handled the specimen or
whether other persons had access to the specimen before actual testing.
And C/I Geronimo, the analyzing forensic chemist, was not also
presented. Then, too, no one testified on how the specimen was cared after
following the chemical analysis. As the Court observed aptly in People v.
Ong, “[T]hese questions should be answered satisfactorily to determine
whether the integrity of the evidence was compromised in any way.
Otherwise, the prosecution cannot maintain that it was able to prove the
guilt of appellants beyond reasonable doubt.”421[28]

It cannot be overemphasized that Inspector Tria was really not

part of the custodial chain. And she did not as she could not,
even if she wanted to, testify on whether or not the specimen
turned over for analysis and eventually offered in court as
exhibit was the same substance received from Arguson.

Given the foregoing perspective, it is fairly evident that the police

operatives trifled with the procedures in the custody of seized prohibited
drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA
9165, i.e., the apprehending officer/team having initial custody and
control of the drug shall:

immediately after seizure and confiscation, physically

inventory and photograph the [drug] in the presence of the
accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof.422[29]

In this case, no physical inventory was made and no photograph

taken nor markings made on the seized articles at the crime scene. PO3
Ramos admitted as much, thus:

[26]
419 Records, p. 33.
[27]
420 TSN, October 23, 2001, p. 20.
[28]
421 Supra note 20, at 490.
422[29] The IRR of RA 9165 provides further, “non-compliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items.”
 284
Q. Now, you were able to arrest all the accused here,
after their arrest, what did you do? A. After informing their
rights and the reason why we arrest them we brought them
immediately to our office in Canlubang.

xxxx

Q. Now, what about this Shabu, who was in possession

of this Shabu x x x when you left the place and proceeded to
Canlubang? A. PO2 Balosbalos, sir.

xxxx

Q. Now, when you reach your office, what did you do

there? A. I made the booking sheet and I requested for their
medical/physical examination x x x.423[30]

Just as clear is the fact that the exacting chain of custody rule was
not observed. Withal, there is no reasonable assurance that no
tampering or substitution occurred between the time the police seized
the black bag in P. Ocampo St. in Manila until its contents were tested
in the laboratory of the PNP R-IV headquarters in Canlubang,
Laguna. In net effect, a heavy cloud of doubt hangs over the integrity
and necessarily the evidentiary value of the seized items. The prosecution
cannot, thus, rightfully assert that the six sachets seized from Arguson
were the very same objects tested by C/I Geronimo and offered in court in
proving the corpus delicti.

Adding a negative dimension to the prosecution’s case is the non-

presentation of C/I Geronimo and the presentation in her stead of
Inspector Tria to testify on the chemical report C/I Geronimo prepared.
While Inspector Tria can plausibly testify on the fact that C/I Geronimo
prepared the chemical report in the regular course of her duties, she,
Inspector Tria, was incompetent to state that the specimen her former
colleague analyzed was in fact shabu and was the same specimen
delivered to the laboratory for chemical analysis.

To be sure, the Court, notably in People v. Bandang, has held that

the non-presentation of the forensic chemist in illegal drug cases is an
insufficient cause for acquittal. In it, the accused persons were convicted
of illegal sale of shabu even if the forensic chemist who prepared the
corresponding laboratory report was not presented. Thus, we wrote:

x x x In People vs. Uy, we ruled that a forensic chemist is

a public officer and as such, his report carries the presumption
of regularity in the performance of his function and duties.
Corollarily, under Section 44 of Rule 130, x x x entries in
[30]
423 TSN, October 23, 2001, pp. 18-19.
 285
official records made in the performance of official duty are
prima facie evidence of the facts therein stated. Omero’s
reports that the seven sachets of white crystalline substance
were “positive for methylamphetamine hydrochloride” or
shabu are, therefore, conclusive in the absence of evidence
proving the contrary, as in this case.

Second, it must be stressed that Atty. Enriquez raises his

objection to the Initial Laboratory Report and Chemistry
Report No. D-1585-00 only now. He should have objected to
their admissibility at the time they were being offered.
Otherwise, the objection shall be considered waived and such
evidence will form part of the records of the case as competent
and admissible evidence. The familiar rule in this jurisdiction
is that the admissibility of certain documents x x x cannot be
raised for the first time on appeal.424[31] (Emphasis added.)

It should be pointed out, however, that the Bandang ruling was cast
against a different backdrop where: (1) the seized crystalline substance
was the same item examined and tested positive for shabu and presented
in court, implying that the identity and integrity of prohibited drug was
safeguarded throughout, a circumstance not obtaining in this case; (2)
there was a compelling reason for not presenting the examining forensic
chemist, i.e., the parties stipulated that the confiscated seven plastic bags
have been identified and examined and that the chemist stated in his
report that the substance is positive for shabu. In this case, C/I Geronimo’s
resignation from the service is not, standing alone, a justifying factor for
the prosecution to dispense with her testimony; and (3) accused Bandang,
et al. did not raise any objection to the chemical report during trial, unlike
here where accused-appellant objected to Inspector Tria’s competency to
testify on the Geronimo chemical report.

At any rate, Inspector Tria’s testimony on, and the presentation of,
the chemistry report in question only established, at best, the existence,
due execution, and authenticity of the results of the chemistry analysis. 425
[32]
It does not prove compliance with the requisite chain of custody over
the confiscated substance from the time of seizure of the evidence. In this
regard, the Court in effect stated in Malillin that unless the state can show
by records or testimony that the integrity of the evidence has not been
compromised by accounting for the continuous whereabouts of the object
evidence at least between the time it came into the possession of the
police officers until it was tested in the laboratory, 426[33] then the
prosecution cannot maintain that it was able to prove the guilt of the
accused beyond reasonable doubt. So it was that in People v. Kimura the
Court said that in establishing the corpus delicti, proof beyond reasonable

424[31] G.R. No. 151314, June 3, 2004, 430 SCRA 570, 586-587.
[32]
425 Sanchez, supra note 19.
[33]
426 Supra note 21, at 634.
 286
427[34]
doubt demands that “unwavering exactitude” be observed, a demand
which may be addressed by hewing to the chain-of-custody rule.
Evidently, the prosecution has not proved that the substance seized in
front of the McDonald’s was the same substance adduced in evidence as
an indispensable element of corpus delicti of the crime, which failure
produces a serious doubt as to accused-appellant’s guilt.428[35]

Both the trial and appellate courts made much of the presumption of
regularity in the performance of official functions both with respect to the
acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. To a
point, the reliance on the presumptive regularity is tenable. This
presumption is, however, disputable and may be overturned by affirmative
evidence of irregularity or failure to perform a duty;429[36] any taint of
irregularity vitiates the performance and negates the presumption. And as
earlier discussed, the buy bust team committed serious lapses in the
handling of the prohibited item from the very start of its operation, the
error of which the PNP R-IV command later compounded. The Court
need not belabor this matter anew.

Lest it be overlooked, the presumption of regularity in the

performance of official duty always yields to the presumption of
innocence and does not constitute proof beyond reasonable doubt.430[37] We
held in one case:

The presumption of regularity in the performance of official

duty cannot be used as basis for affirming accused-appellant’s
conviction because, “[f]irst, the presumption is precisely just
that—a mere presumption. Once challenged by evidence, as in
this case, x x x [it] cannot be regarded as binding truth.
Second, the presumption of regularity in the performance of
official functions cannot preponderate over the presumption of
innocence that prevails if not overthrown by proof beyond
reasonable doubt.”431[38]

For failure then of the prosecution to establish the guilt of accused-

appellant beyond reasonable doubt, she must perforce be exonerated from
criminal liability. The facts and the law of the case call for this kind of
disposition.

But a final consideration. The Court is cognizant of the

campaign of the police and other drug enforcement agencies against
the growing drug menace in the country. Unfortunately, their best
efforts, particularly successful honest-to-goodness buy-bust
operations, sometimes still end up in the acquittal of illegal drug
[34]
427 G.R. No. 130805, April 27, 2004, 428 SCRA 51, 70.
[35]
428 Id.
[36]
429 Sevilla v. Cardenas, G.R. No. 167684, July 31, 2006, 497 SCRA 428, 443; citing Mabsucang v. Judge Balgos, 446
Phil. 217, 224 (2003).
[37]
430 People v. Cañete, G.R. No. 138400, July 11, 2002, 384 SCRA 411, 424.
[38]
431 People v. Tan, G.R. No. 129376, May 29, 2002, 382 SCRA 419, 444.
 287
manufacturers, distributors, pushers and/or lesser players, even when
nabbed in flagrante, simply because drug enforcement operatives
tend to compromise the integrity and evidentiary worth of the seized
illegal items. This aberration is oftentimes in turn attributable to the
unfamiliarity of police operatives of extant rules and procedures
governing the custody, control, and handling of seized drugs. This is,
thus, an opportune time to remind all concerned about these rules
and procedures and the guiding jurisprudence. And to put things in
the proper perspective, non-compliance with the legal prescriptions of
the Dangerous Drugs Act, as amended, is, as we made abundantly
clear in People v. Sanchez, not necessarily fatal to the prosecution of
drug-related cases; that police procedures may still have some lapses.
These lapses, however, must be recognized, addressed, and explained
in terms of their justifiable grounds, and the integrity and evidentiary
value of the evidence seized must be shown to have been preserved by
the apprehending officer or team.

To be forewarned is to be forearmed.

WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R.

CR-H.C. No. 00476, affirming that of the RTC, Branch 53 in Manila
which found her guilty of violating Sec. 15, Art. III of RA 6425 and
imposed upon her the penalty of reclusion perpetua and a fine of PhP
500,000, is hereby REVERSED and SET ASIDE. Accused-appellant
Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable
doubt and is accordingly immediately RELEASED from custody unless
she is being lawfully held for some lawful cause.

Presumption of innocence leads to the

accused’s acquittal due to inconsistent
testimonies of prosecution’s witnesses

ELY AGUSTIN VS. PEOPLE OF THE PHILIPPINES,

G.R. No. 158788, April 30, 2008

FACTS:

On October 1, 1995, at 7:20 in the evening, armed men robbed the house
of spouses George and Rosemarie Gante in Barangay Pug-os, Cabugao,
Ilocos Sur, forcibly taking with them several valuables, including cash
amounting to P600,000.00.432[3] Forthwith, the spouses reported the
matter to the police, who, in turn, immediately applied for a search
warrant with the Municipal Trial Court (MTC) of Cabugao, Ilocos Sur.433
[4]
The MTC issued Search Warrant No. 5-95,434[5] directing a search of the
items stolen from the victims, as well as the firearms used by the
432
433
434
 288
perpetrators. One of the target premises was the residence of petitioner,
named as one of the several suspects in the crime.

On October 6, 1995, armed with the warrant, policemen searched the

premises of petitioner's house located in Sitio Padual, Barangay Pug-os,
Cabugao, Ilocos Sur. The search resulted in the recovery of a firearm and
ammunitions which had no license nor authority to possess such weapon,
and, consequently, the filing of a criminal case, docketed as Criminal Case
No. 1651-K, for violation of P.D. No. 1866 or Illegal Possession of
Firearms, against petitioner before the RTC.

Thereafter, trial ensued. The prosecution presented eight witnesses

namely: (1) P/Insp. Anselmo Baldovino435[7] (P/Insp. Baldovino), a police
investigator and the applicant for the search warrant; (2) Rosemarie Gante
(Gante), the victim of the robbery and private complainant; (3) Ignacio
Yabes (Yabes), a Municipal Local Government Operations Officer of the
Department of Interior and Local Government who was the civilian
witness to the search; (4) P/Supt. Bonifacio Abian 436[8] (P/Supt. Abian),
Deputy Provincial Director of the Philippine National Police and part of
the search team; (5) SPO4 Marino Peneyra (SPO4 Peneyra); (6) SPO1
Franklin Cabaya (SPO1 Cabaya); (7) SPO1 James Jara (SPO1 Jara); and
(8) SPO2 Florentino Renon (SPO2 Renon).

The prosecution's case centered mainly on evidence that during the

enforcement of the search warrant against petitioner, a .38 caliber revolver
firearm was found in the latter's house.437[9] In particular, SPO1 Cabaya
testified that while poking at a closed rattan cabinet near the door, he saw
a firearm on the lower shelf.438[10] The gun is a .38 caliber revolver439[11]
with five live ammunitions,440[12] which he immediately turned over to his
superior, P/Insp. Baldovino.441[13]

Petitioner anchored his defense on denial and frame-up. The

petitioner and his wife Lorna assert that petitioner does not own a gun.442
[14]
Lorna testified that she saw a “military” man planting the gun.443[15]

After trial, the RTC rendered its Decision444[16] dated July 7, 1999,
finding petitioner guilty beyond reasonable doubt.

Petitioner filed an appeal with the CA, which rendered the assailed
Decision445[18] dated January 22, 2003, affirming with modification the
435
436
437
438
439
440
441
442
443
444
445
 289
decision of the trial court, thus:

WHEREFORE, except for the MODIFICATION reducing and

changing the maximum of the prison term imposed to Five (5) Years Four
(4) Months and Twenty (20) Days, the appealed Decision is otherwise
AFFIRMED.

Hence, the instant Petition for Review, on the principal ground that
the CA gravely erred in finding that the guilt of petitioner has been proven
beyond reasonable doubt; and more specifically, in giving weight and
credence to the testimonies of the police officers who searched the house
of the petitioner which are replete with material and irreconcilable
contradictions and in giving SPO1 Cabaya the presumption of regularity
in the performance of duty despite the claim of Lorna that the .38 caliber
revolver was planted.

Petitioner insists that the trial court and the CA committed reversible
error in giving little credence to his defense that the firearm found in his
residence was planted by the policemen. He also alleges material
inconsistencies in the testimonies of the policemen as witnesses for the
prosecution, which amounted to failure by the prosecution to prove his
guilt beyond reasonable doubt.

HELD:

The petition has merit.

The paramount issue in the present case is whether the prosecution

established the guilt of petitioner beyond reasonable doubt; and in the
determination thereof, a factual issue, that is, whether a gun was found in
the house of petitioner, must necessarily be resolved.

It is a well-entrenched rule that appeal in criminal cases opens the

whole case wide open for review.446[20]

In convicting petitioner, the RTC relied heavily on the testimony of

SPO1 Cabaya, who testified that he discovered the subject firearm in a
closed cabinet inside the former's house. The trial court brushed aside
petitioner's defense of denial and protestations of frame-up. The RTC
justified giving full credence to Cabaya's testimony on the principles that
the latter is presumed to have performed his official duties regularly; that
he had no ill motive to frame-up petitioner; and that his affirmative
testimony is stronger than petitioner's negative testimony.447[21]

Weighing these findings of the lower courts against the petitioner's

claim that the prosecution failed to prove its case beyond reasonable doubt
446
447
 290
due to the material inconsistencies in the testimonies of its witnesses, the
Court finds, after a meticulous examination of the records that the lower
courts, indeed, committed a reversible error in finding petitioner guilty
beyond reasonable doubt of the crime he was charged with. The RTC
and the CA have overlooked certain facts and circumstances that would
have interjected serious apprehensions absolutely impairing the credibility
of the witnesses for the prosecution.

The conflicting testimonies of the prosecution witnesses as to who

actually entered the house and conducted the search, who “discovered”
the gun, and who witnessed the “discovery” are material matters because
they relate directly to a fact in issue; in the present case, whether a gun has
been found in the house of petitioner; or to a fact to which, by the process
of logic, an inference may be made as to the existence or non-existence of
a fact in issue.448[24] As held in United States v. Estraña,449[25] a material
matter is the main fact which is the subject of inquiry or any
circumstance which tends to prove that fact or any fact or
circumstance which tends to corroborate or strengthen the testimony
relative to the subject of inquiry or which legitimately affects the
credit of any witness who testifies.

The evidence of prosecution is severely weakened by several

contradictions in the testimonies of its witnesses. Especially damaged is
the credibility of SPO1 Cabaya, none of whose declarations on material
points jibes with those of the other prosecution witnesses. In the face of
the vehement and consistent protestations of frame-up by petitioner and
his wife, the trial court and the CA erred in overlooking or
misappreciating these inconsistencies. The inconsistencies are material as
they delve into the very bottom of the question of whether or not SPO1
Cabaya really found a firearm in the house of petitioner.

SPO1 Cabaya testified that he entered the house with four other
policemen, among whom were SPO1 Jara, SPO4 Peneyra, SPO3 Bernabe
Ocado (SPO3 Ocado) and another one whose name he does not
remember.450[26] While searching, he discovered the firearm in the kitchen,
inside a closed cabinet near the door.451[27] He said that SPO1 Jara was
standing right behind him, at a distance of just one meter, when he
(Cabaya) saw the firearm;452[28] and that he picked up the gun, held it and
showed it to SPO1 Jara.453[29] He asserted that SPO2 Renon was not one
of those who went inside the house.454[30]

However, SPO1 Jara, the best witness who could have corroborated
SPO1 Cabaya's testimony, related a different story as to the circumstances
448
449
450
451
452
453
454
 291
of the firearm's discovery. SPO1 Jara testified that he merely conducted
perimeter security during the search and did not enter or participate in
searching the house.455[32] SPO1 Jara testified that he remained outside the
house throughout the search, and when SPO1 Cabaya shouted and
showed a gun, he was seven to eight meters away from him. 456[33] He
could not see the inside of the house and could see Cabaya only from his
chest up.457[34] He did not see the firearm at the place where it was found,
but saw it only when Cabaya raised his arm to show the gun, which was a
revolver.458[35] He is certain that he was not with Cabaya at the time
the latter discovered the firearm.459[36] He further testified that SPO3
Ocado, who, according to SPO1 Cabaya was one of those near him when
he (Cabaya) discovered the firearm, stayed outside and did not enter or
search the house.460[37]

P/Insp. Baldovino testified that only SPO2 Renon conducted the

search and entered the house together with SPO1 Cabaya,461[38] directly
contradicting SPO1 Cabaya's testimony that he, together with SPO1 Jara,
SPO4 Peneyra, SPO3 Ocado, and another one whose name he cannot
recall, were inside the house when he discovered the gun462[39] and that
SPO2 Renon did not enter the house of petitioner.463[40]

The testimonies of the other prosecution witnesses further muddled

the prosecution evidence with more inconsistencies as to matters material
to the determination of whether a gun had in fact been found in the house
of petitioner. SPO4 Peneyra testified that Yabes stayed outside of the
during the search;464[59] whereas SPO1 Jara testified that Yabes was inside,
at the sala, but the latter saw the gun only when SPO1 Cabaya raised it.465
[60]

Although the Court has held that frame-up is inherently one of the
weakest defenses,466[61] as it is both easily concocted and difficult to prove,467[62] in the present case,
the lower courts
seriously erred in ignoring the weakness of the prosecution's evidence and its failure to prove the
guilt of petitioner
beyond reasonable doubt. The rule requiring a claim of frame-up to be supported by
clear and convincing evidence468[63] was never intended to shift
to the accused the burden of proof in a criminal
case.
As the Court held in People of the Philippines v. Ambih:469[64]

[W]hile the lone defense of the accused that he was the victim of a frame-
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
 292
up is easily fabricated, this claim assumes importance when faced with the
rather shaky nature of the prosecution evidence. It is well to remember
that the prosecution must rely, not on the weakness of the defense
evidence, but rather on its own proof which must be strong enough to
convince this Court that the prisoner in the dock deserves to be punished.
The constitutional presumption is that the accused is innocent even if
his defense is weak as long as the prosecution is not strong enough to
convict him.470[65] (Emphasis supplied)
In People of the Philippines v. Gonzales,471[66] the Court held that
where there was material and unexplained inconsistency between the
testimonies of two principal prosecution witnesses relating not to
inconsequential details but to the alleged transaction itself which is subject
of the case, the inherent improbable character of the testimony given by
one of the two principal prosecution witnesses had the effect of vitiating
the testimony given by the other principal prosecution witness. The Court
ruled that it cannot just discard the improbable testimony of one officer
and adopt the testimony of the other that is more plausible. In such a
situation, both testimonies lose their probative value. The Court further
held:
Why should two (2) police officers give two (2) contradictory
descriptions of the same sale transaction, which allegedly took place
before their very eyes, on the same physical location and on the same
occasion? We must conclude that a reasonable doubt was generated as to
whether or not the "buy-bust" operation ever took place.472[69]

In the present case, to repeat, the glaring contradictory testimonies

of the prosecution witnesses generate serious doubt as to whether a
firearm was really found in the house of petitioner. The prosecution
utterly failed to discharge its burden of proving that petitioner is guilty of
illegal possession of firearms beyond reasonable doubt. The
constitutional presumption of innocence of petitioner has not been
demolished and therefore petitioner should be acquitted of the crime he
was with.

Read also:

P. vs. Bernardino, January 28, 1991

1-a. P vs. Flores, 165 SCRA 71
1-b. Aguirre vs. P., 155 SCRA 337
1-c. P. vs. Guinto, 184 SCRA 287
1-d. P. vs. Solis, 182 SCRA 182
1-e. P. vs. Capilitan, 182 SCRA 313
2. Alonso vs. IAC, 151 SCRA 552
3. P vs. Lopez, 74 SCRA 205
4. P vs. Quiason, 78 SCRA 513

470
471
472
 293
5. P vs. Jose, 37 SCRA 450
6. P vs. Poblador, 76 SCRA 634
7. Dumlao vs. Comelec, 95 SCRA 392

3. Presumption of innocence in general and in the order of trial

PEOPLE VS. DE LOS SANTOS, 355 SCRA 415

PEOPLE VS. SATURNO, 355 SCRA 578

What is the EQUIPOISE RULE?

A. If the evidence in a criminal case is evenly balanced, the constitutional

presumption of innocence tilts the scale of justice in favor of the accused and
he should be acquitted from the crime charged.

Where the inculpatory facts and circumstances are capable of two or more
interpretations one of which is consistent with the innocence of the accused
and the other consistent with his guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support a conviction.

Read:

1. Alejandro vs. Pepito, 96 SCRA 322

3. Sacay vs. Sandiganbayan, July 10,l986

SACAY VS. SANDIGANBAYAN

G.R. No. L-66497-98,July 10, 1986

FACTS:

1. At the initial hearing, the testimony of the prosecution witnesses was

interrupted when the accused, through counsel, admitted that he shot the
deceased but claimed that it was done in self-defense and fulfillment of
duty. The prosecution then moved that the reverse procedure be adopted
in view of the admission that the accused shot the deceased. No objection
was interposed by the accused or his counsel.

2. On appeal with the S.C. after he was convicted the accused later
claims that there was a violation of the order of trial provided for in Sec.
3, Rule 119 of the Rules of Court. He also cites the case of Alejandro vs.
Pepito, 96 SCRA 322, wherein the S.C. ruled that : "It behooved the
respondent Judge to have followed the sequence of trial set forth x x x the
form of a trial is also a matter of public order and interest; the orderly
course of procedure requires that the prosecution should go forward and
present all of its proof in the first instance."

HELD:
 294

The case of Alejandro vs. Pepito is not applicable inasmuch as the

accused in the case at bar did not object to the procedure followed. In fact
in the said Alejandro case, the Court also stated:

"It is true that in the case of U.S. vs. Gaoiran, 17 Phil. 404 (l910),
relied upon by the prosecution and the trial Court, the defense has
produced its proofs before the prosecution presented its case, and it was
held that no substantial rights of the accused were prejudiced. There is one
radical difference, however, since in that case no objection was entered in
the Court below to the procedure followed in the presentation of proof. In
this case, the change in the order of trial made by respondent Judge was
promptly and timely objected to by the defense."

In fact it should be noted that under the newly adopted 1985 Rules of
Criminal Procedure (Sec. 3e), Rule 119)the said procedure is now
expressly sanctioned. Thus:

"However, when the accused admits the act or omission charged in

the complaint or information but interposes a lawful defense, the order of
trial may be modified accordingly."

3.Sec. 3(3), Rule 119 , 1985 Rules on Criminal Procedure , as

amended.

4. Other cases -

Read:

1. P vs. Opida, June 13,1986

2. P vs. Tempongko, October 2,1986
3. P vs. Drammayo, 42 SCRA 59
4. P vs. Fernando, 145 SCRA 151
5. P vs. Tolentino, 145 SCRA 597
6. Castillo vs. Filtex, September 30,1983
7. Dumlao vs. COMELEC, supra

5. Right to counsel-during trial

1. Reason behind the requirement

2. Obligation of the judge to an accused who appears in court without a

lawyer to assist him

Read:

1. P vs. Holgado,85 Phil. 752

2. Delgado vs. CA, 145 SCRA 357
 295
3. P vs. Cuison, 193 Phil. 296

5-a. The right to be heard by himself and counsel during trial

Effect of the fact that accused was represented

by a NON-LAWYER at the early part of the
trial but a full-pledged lawyer took over as his
counsel when he presented his evidence.
(Also important in your criminal law as to the
distinctions between robbery and grave
coercion)

PEDRO CONSULTA VS. PEOPLE, G.R. No. 179462,

February 12, 2009

CARPIO MORALES, J.:

The Court of Appeals having, by Decision of April 23, 2007, 473[1]

affirmed the December 9, 2004 Decision of the Regional Trial Court of
Makati City, Branch 139 convicting Pedro C. Consulta (appellant) of
Robbery with Intimidation of Persons, appellant filed the present petition.

The accusatory portion of the Information against appellant reads:

That on or about the 7th day of June, 1999, in the City of

Makati, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of
gain, and by means of force, violence and intimidation, did
then and there willfully, unlawfully and feloniously take, steal
and carry away complainant’s NELIA R. SILVESTRE gold
necklace worth P3,500.00, belonging to said complainant, to
the damage and prejudice of the owner thereof in the
aforementioned amount of P3,500.00.

CONTRARY TO LAW.474[2] (Emphasis in the original,

underscoring supplied)

From the evidence for the prosecution, the following version is

gathered:

At about 2:00 o’clock in the afternoon of June 7, 1999, private

complainant Nelia R. Silvestre (Nelia), together with Maria Viovicente
(Maria) and Veronica Amar (Veronica), boarded a tricycle on their way to

473 [1]
Penned by Associate Justice Estela M. Perlas-Bernabe, with the concurrence of Associate Justices Marina L. Buzon and
Lucas P. Bersamin; CA rollo, pp. 166-176.
474 [2] Records, p. 1.
 296
Pembo, Makati City. Upon reaching Ambel Street, appellant and his
brother Edwin Consulta (Edwin) blocked the tricycle and under their
threats, the driver alighted and left. Appellant and Edwin at once shouted
invectives at Nelia, saying “Putang ina mong matanda ka, walanghiya ka,
kapal ng mukha mo, papatayin ka namin.” Appellant added “Putang ina
kang matanda ka, wala kang kadala dala, sinabihan na kita na kahit saan
kita matiempuhan, papatayin kita.”

Appellant thereafter grabbed Nelia’s 18K gold necklace with a

crucifix pendant which, according to an “alajera” in the province, was of
18k gold, and which was worth P3,500, kicked the tricycle and left saying
“Putang ina kang matanda ka! Kayo mga nurses lang, anong
ipinagmamalaki niyo, mga nurses lang kayo. Kami, marami kaming mga
abogado. Hindi niyo kami maipapakulong kahit kailan!”

Nelia and her companions immediately went to the Pembo barangay

hall where they were advised to undergo medical examination. They,
however, repaired to the Police Station, Precinct 8 in Comembo, Makati
City and reported the incident. They then proceeded to Camp Crame
where they were advised to return in a few days when any injuries they
suffered were expected to manifest.

Nine days after the incident or on June 16, 1999, Nelia submitted a
medico-legal report and gave her statement before a police investigator.

Denying the charge, appellant branded it as fabricated to spite him

and his family in light of the following antecedent facts:

He and his family used to rent the ground floor of Nelia’s house in
Pateros. Nelia is his godmother. The adjacent house was occupied by
Nelia’s parents with whom she often quarreled as to whom the rental
payments should be remitted. Because of the perception of the parents of
Nelia that his family was partial towards her, her parents disliked his
family. Nelia’s father even filed a case for maltreatment against him
which was dismissed and, on learning of the maltreatment charge, Nelia
ordered him and his family to move out of their house and filed a case
against him for grave threats and another for light threats which were
dismissed or in which he was acquitted.

Appellant went on to claim that despite frequent transfers of

residence to avoid Nelia, she would track his whereabouts and cause
scandal.

Appellant’s witness Darius Pacaña testified that on the date of the

alleged robbery, Nelia, together with her two companions, approached
him while he was at Ambel Street in the company of Michael Fontanilla
and Jimmy Sembrano, and asked him (Pacaña) if he knew a bald man who
is big/stout with a big tummy and with a sister named Maria. As he
 297
replied in the affirmative, Nelia at once asked him to accompany them to
appellant’s house, to which he acceded. As soon as the group reached
appellant’s house, appellant, on his (Pacaña’s) call, emerged and on seeing
the group, told them to go away so as not to cause trouble. Retorting,
Nelia uttered “Mga hayop kayo, hindi ko kayo titigilan.”

Another defense witness, Thelma Vuesa, corroborated Pacaña’s

account.

The trial court, holding that intent to gain on appellant’s part “is
presumed from the unlawful taking” of the necklace, and brushing aside
appellant’s denial and claim of harassment, convicted appellant of
Robbery, disposing as follows:

WHEREFORE, premises considered, this Court finds

accused PEDRO C. CONSULTA guilty beyond reasonable
doubt, as principal of the felony of Robbery with Intimidation
of Persons defined and penalized under Article 294, paragraph
No. 5, in relation to Article 293 of the Revised Penal Code and
hereby sentences him to suffer the penalty of imprisonment
from one (1) year, seven (7) months and eleven (11) days of
arresto mayor, as minimum, to eight (8) years, eight (8)
months and one (1) day of prision mayor, as maximum,
applying the Indeterminate Sentence Law, there being no
mitigating or aggravating circumstances which attended the
commission of the said crime.

The said accused is further ordered to pay unto the

complainant Nelia Silvestre the amount of P3,500.00
representing the value of her necklace taken by him and to pay
the costs of this suit.

SO ORDERED. (Italics in the original, underscoring

supplied)

The appellate court affirmed appellant’s conviction with

modification on the penalty.

In his present appeal, appellant raises the following issues:

(1) Whether or not appellant was validly arraigned;

(2) Whether or not appellant was denied due process having

been represented by a fake lawyer during arraignment,
pre-trial and presentation of principal witnesses for the
prosecution;
 298
(3) Whether or not appellant has committed the crime of
which he was charged; and

(4) Whether or not the prosecution was able to prove the guilt
of the appellant beyond reasonable doubt. (Underscoring
supplied)

The first two issues, which appellant raised before the appellate
court only when he filed his Motion for Reconsideration of said court’s
decision, were resolved in the negative in this wise:

On the matter of accused-appellant’s claim of having

been denied due process, an examination of the records shows
that while accused-appellant was represented by Atty. Jocelyn
P. Reyes, who “seems not a lawyer,” during the early stages of
trial, the latter withdrew her appearance with the conformity of
the former as early as July 28, 2000 and subsequently,
approved by the RTC in its Order dated August 4, 2000.
Thereafter, accused-appellant was represented by Atty. Rainald
C. Paggao from the Public Defender’s (Attorney’s) Office of
Makati City. Since the accused-appellant was already
represented by a member of the Philippine Bar who principally
handled his defense, albeit unsuccessfully, then he cannot now
be heard to complain about having been denied of due
process.475[3] (Underscoring supplied)

That appellant’s first counsel may not have been a member of the bar
does not dent the proven fact that appellant prevented Nelia and company
from proceeding to their destination. Further, appellant was afforded
competent representation by the Public Attorneys’ Office during the
presentation by the prosecution of the medico-legal officer and during the
presentation of his evidence. People v. Elesterio476[4] enlightens:

“As for the circumstance that the defense counsel turned

out later to be a non-lawyer, it is observed that he was chosen
by the accused himself and that his representation does not
change the fact that Elesterio was undeniably carrying an
unlicensed firearm when he was arrested. At any rate, he has
since been represented by a member of the Philippine bar, who
prepared the petition for habeas corpus and the appellant’s
brief.” (Underscoring supplied)

On the third and fourth issues. Article 293 of the Revised Penal
Code under which appellant was charged provides:

475 [3]
Rollo, p. 169
476 [4]
G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.
 299
Art. 293. Who are guilty of robbery. – Any person who,
with intent to gain, shall take any personal property belonging
to another, by means of violence against or intimidation of any
person, or using force upon anything, shall be guilt of robbery.
(Italics in the original, underscoring supplied)

Article 294, paragraph 5, under which appellant was penalized

provides:

Art. 294. Robbery with violence against or intimidation

of persons – Penalties. – Any person guilty of robbery with the
use of violence against or intimidation of any person shall
suffer:

xxxx

5. The penalty of prision correccional in its maximum

period to prision mayor in its medium period in other cases. x
x x (Citations omitted; italics in the original; underscoring
supplied)

The elements of robbery are thus: 1) there is a taking of personal

property; 2) the personal property belongs to another; 3) the taking is
with animus lucrandi; and 4) the taking is with violence against or
intimidation of persons or with force upon things.

Animus lucrandi or intent to gain is an internal act which can be

established through the overt acts of the offender. It may be presumed
from the furtive taking of useful property pertaining to another, unless
special circumstances reveal a different intent on the part of the
perpetrator.477[5]

The Court finds that under the above-mentioned circumstances

surrounding the incidental encounter of the parties, the taking of Nelia ’s
necklace does not indicate presence of intent to gain on appellant ’s part.
That intent to gain on appellant’s part is difficult to appreciate gains light
given his undenied claim that his relationship with Nelia is rife with ill-
feelings, manifested by, among other things, the filing of complaints 478[6]
against him by Nelia and her family which were subsequently dismissed
or ended in his acquittal.479[7]

Absent intent to gain on the part of appellant, robbery does not lie
against him. He is not necessarily scot-free, however.

477 [5]
People v. Reyes, G.R. 135682, March 26, 2003, 399 SCRA 528
478 [6]
Exhibit “2” – Information for Maltreatment, Exhibit “4” – Light Threats, Exhibit “5 ” – Grave Threats.
479 [7]
Vide Exhibit “3” – Order granting Supplemental Motion to Quash (Malicious Mischief), folder 1, records, pp. 202-203,
Exhibit “4” – Order dismissing the information for Light Threats.
 300
From the pre-existing sour relations between Nelia and her family
on one hand, and appellant and family on the other, and under the
circumstances related above attendant to the incidental encounter of the
parties, appellant’s taking of Nelia’s necklace could not have been
animated with animus lucrandi. Appellant is, however, just the same,
criminally liable.

For “[w]hen there is variance between the offense charged in the

complaint or information and that proved, and the offense as charged is
included in or necessarily includes the offense proved, the accused shall
be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense
proved.”480[8]

SEC. 5. When an offense includes or is included in

another. – An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of
the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients
of the former constitute or form part of those constituting the
latter.481[9] (Italics in the original, underscoring supplied)

Grave coercion, like robbery, has violence for one of its elements.
Thus Article 286 of the Revised Penal Code provides:

“Art. 286. Grave coercions. – The penalty of prision

correccional and a fine not exceeding six thousand pesos shall
be imposed upon any person who, without authority of law,
shall, by means of violence, threats or intimidation, prevent
another from doing something not prohibited by law or compel
him to do something against his will, whether it be right or
wrong.

If the coercion be committed in violation of the exercise

of the right of suffrage or for the purpose of compelling
another to perform any religious act or to prevent him from
exercising such right or from doing such act, the penalty next
higher in degree shall be imposed.” (Italics in the original;
underscoring supplied)

The difference in robbery and grave coercion lies in the intent in the
commission of the act. The motives of the accused are the prime
criterion:

480[8] RULES OF COURT, Rule 120, Section 4.

481 [9] Id. at Section 5
 301
“The distinction between the two lines of decisions, the
one holding to robbery and the other to coercion, is deemed to
be the intention of the accused. Was the purpose with intent to
gain to take the property of another by use of force or
intimidation? Then, conviction for robbery. Was the purpose,
without authority of law but still believing himself the owner
or the creditor, to compel another to do something against his
will and to seize property? Then, conviction for coercion under
Article 497 of the Penal Code. The motives of the accused are
the prime criterion. And there was no common robber in the
present case, but a man who had fought bitterly for title to his
ancestral estate, taking the law into his own hands and
attempting to collect what he thought was due him. Animus
furandi was lacking.”482[10] (Italics in the original; citations
omitted; underscoring supplied)

The Court finds that by appellant’s employment of threats,

intimidation and violence consisting of, inter alia, uttering of invectives,
driving away of the tricycle driver, and kicking of the tricycle, Nelia was
prevented from proceeding to her destination.

Appellant is thus guilty of grave coercion which carries the penalty

of prision correccional and a fine not exceeding P6,000. There being no
aggravating or mitigating circumstance, the penalty shall be imposed in its
medium term. Applying the Indeterminate Sentence Law, the minimum
that may be imposed is anywhere from one (1) month and one (1) day to
six (6) months of arresto mayor, as minimum, and from two (2) years,
four (4) months and one (1) day to four (4) years and two (2) months of
prision correccional, as maximum.

WHEREFORE, the Court SETS ASIDE the challenged Court of

Appeals Decision and another is rendered finding appellant, Pedro C.
Consulta, GUILTY beyond reasonable doubt of Grave Coercion and
sentences him to suffer the indeterminate penalty of from six (6) months
of arresto mayor as minimum, to three (3) years and six (6) months of
prision correccional medium as maximum.

EVEN IF THE DECISION OF

CONVICTION IS ALREADY FINAL
AND EXECUTORY, THE CASE MAY
STILL BE RE-OPENED IF THERE IS
GROSS-NEGLIGENCE ON THE
PART OF ACCUSED’S COUNSEL
THEREBY VIOLATING HIS RIGHT
TO DUE PROCESS/COUNSEL.

482[10] United States v. Villa Abrille, 36 Phil. 807, 809 (1917).

 302
JOHN HILARIO VS. PEOPLE OF THE
PHILIPPINES, G.R. No. 161070, April 14, 2008

THE FACTS:
Petitioner, together with one Gilbert Alijid (Alijid), was charged with two
counts483[3] of Murder in the Regional Trial Court (RTC), Branch 76, Quezon
City to which petitioner, assisted by counsel de parte, pleaded not guilty.

During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO),
counsel of Alijid, took over representing petitioner in view of the death of the
latter's counsel.

On December 5, 2001, the RTC rendered its Decision484[4] finding

petitioner and his co-accused Alijid guilty beyond reasonable doubt of the crime
of homicide and sentencing them to suffer imprisonment of eight (8) years and
one (1) day of prision mayor to fourteen (14) years and eight (8) months of
reclusion temporal in each count.

On May 10, 2002, petitioner, this time unassisted by counsel, filed with
the RTC a Petition for Relief485[5] from the Decision dated December 5, 2001
together with an affidavit of merit. In his petition, petitioner contended that at
the time of the promulgation of the judgment, he was already confined at
Quezon City Jail and was directed to be committed to the National Penitentiary
in Muntinlupa; that he had no way of personally filing the notice of appeal thus
he instructed his lawyer to file it on his behalf; that he had no choice but to
repose his full trust and confidence to his lawyer; that he had instructed his
lawyer to file the necessary motion for reconsideration or notice of appeal; that
on May 2, 2002, he was already incarcerated at the New Bilibid Prisons,
Muntinlupa City and learned from the grapevine of his impending transfer to the
Iwahig Penal Colony, Palawan; that believing that the notice of appeal filed by
his counsel prevented the Decision dated December 5, 2001 from becoming
final to warrant his transfer, he instructed his representative to get a copy of the
notice of appeal from the RTC; that no notice of appeal was filed by his lawyer
in defiance of his clear instructions; and that the RTC Decision showed that it
was received by his counsel on February 1, 2002 and yet the counsel did not
inform him of any action taken thereon.

I S S U E:

Whether or not the delay in appealing the instant case due to the defiance
or failure of the petitioner's counsel de oficio to seasonably file a Notice of
Appeal, constitutes excusable negligence to entitle the undersigned detention
prisoner/ petitioner to pursue his appeal?

Whether or not pro hac vice, the mere invocation of justice warrants the
483 [3]
Docketed as Criminal Case Nos. Q-00-91647-48.
484 [4]
Penned by Judge Monina A. Zenarosa, rollo, pp. 36-52.
485 [5]
Id. at 53-60.
 303
review of a final and executory judgment?

HELD:

Petitioner contends that the negligence of his counsel de oficio cannot be

binding on him for the latter's defiance of his instruction to appeal automatically
breaks the fiduciary relationship between counsel-client and cannot be against
the client who was prejudiced; that this breach of trust cannot easily be
concocted in this situation considering that it was a counsel de oficio, a lawyer
from PAO, who broke the fiduciary relationship; that the assailed CA
Resolutions both harped on technicalities to uphold the dismissal by the RTC of
his petition for relief; that reliance on technicalities to the prejudice of petitioner
who is serving 14 years imprisonment for a crime he did not commit is an
affront to the policy promulgated by this Court that dismissal purely on
technical grounds is frowned upon especially if it will result to unfairness; and
that it would have been for the best interest of justice for the CA to have directed
the petitioner to complete the records instead of dismissing the petition outright.

In his Comment, the OSG argues that the mere invocation of justice does
not warrant the review of an appeal from a final and executory judgment; that
perfection of an appeal in the manner and within the period laid down by law is
not only mandatory but jurisdictional and failure to perfect the appeal renders
the judgment sought to be reviewed final and not appealable; and that
petitioner's appeal after the finality of judgment of conviction is an exercise in
futility, thus the RTC properly dismissed petitioner's petition for relief from
judgment. The OSG further claims that notice to counsel is notice to clients and
failure of counsel to notify his client of an adverse judgment would not
constitute excusable negligence and therefore binding on the client.

We grant the petition.

A litigant who is not a lawyer is not expected to know the rules

of procedure. In fact, even the most experienced lawyers get tangled in the
web of procedure.486[12] We have held in a civil case that to demand as much
from ordinary citizens whose only compelle intrare is their sense of right
would turn the legal system into an intimidating monstrosity where an
individual may be stripped of his property rights not because he has no
right to the property but because he does not know how to establish such
right.487[13] This finds application specially if the liberty of a person is at
stake. As we held in Telan v. Court of Appeals:

The right to counsel in civil cases exists just as forcefully as in criminal

cases, specially so when as a consequence, life, liberty, or property is subjected
to restraint or in danger of loss.

In criminal cases, the right of an accused person to be assisted by a

486 [12]
See Telan v. Court of Appeals, G.R. No. 95026, October 4, 1991, 202 SCRA 534, 541.
487 [13]
Id.
 304
member of the bar is immutable. Otherwise, there would be a grave denial
of due process. Thus, even if the judgment had become final and
executory, it may still be recalled, and the accused afforded the opportunity
to be heard by himself and counsel.

xxxx

Even the most experienced lawyers get tangled in the web of procedure.
The demand as much from ordinary citizens whose only compelle intrare is
their sense of right would turn the legal system into an intimidating monstrosity
where an individual may be stripped of his property rights not because he has no
right to the property but because he does not know how to establish such right.

The right to counsel is absolute and may be invoked at all times. More so,
in the case of an on-going litigation, it is a right that must be exercised at every
step of the way, with the lawyer faithfully keeping his client company.

No arrangement or interpretation of law could be as absurd as the

position that the right to counsel exists only in the trial courts and that
thereafter, the right ceases in the pursuit of the appeal.488[14] (Emphasis
supplied)

To repeat the ruling in Telan, no arrangement or interpretation of law

could be as absurd as the position that the right to counsel exists only in the trial
courts and that thereafter, the right ceases in the pursuit of the appeal.489[15] It is
even more important to note that petitioner was not assisted by counsel when he
filed his petition for relief from judgment with the RTC.

It cannot be overstressed therefore, that in criminal cases, as held in Telan,

the right of an accused person to be assisted by a member of the bar is
immutable; otherwise, there would be a grave denial of due process.

Cases should be determined on the merits after full opportunity to all

parties for ventilation of their causes and defenses, rather than on technicality or
some procedural imperfections. In that way, the ends of justice would be served
better.490[16]

While as a general rule, the failure of petitioner to file his motion for
reconsideration within the 15-day reglementary period fixed by law rendered the
resolution final and executory, we have on some occasions relaxed this rule.
Thus, in Barnes v. Padilla491[17] we held:

However, this Court has relaxed this rule in order to serve

substantial justice considering (a) matters of life, liberty, honor or
property, (b) the existence of special or compelling circumstances, (c)
488[14] Id. at 540-541.
489 [15]
Id. at 541.
490 [16]
Garcia v. Philippine Airlines, Inc., supra note 11, at 781.
491 [17]
G.R. No. 160753, September 30, 2004, 439 SCRA 675.
 305
the merits of the case, (d) a cause not entirely attributable to the fault
or negligence of the party favored by the suspension of the rules, (e) a
lack of any showing that the review sought is merely frivolous and
dilatory, and (f) the other party will not be unjustly prejudiced
thereby.

Invariably, rules of procedure should be viewed as mere tools designed to

facilitate the attainment of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be eschewed. Even the Rules of Court reflects
this principle. The power to suspend or even disregard rules can be so pervasive
and compelling as to alter even that which this Court itself had already declared
to be final.

In De Guzman v. Sandiganbayan, this Court, speaking through the late

Justice Ricardo J. Francisco, had occasion to state:

The Rules of Court was conceived and promulgated to set

forth guidelines in the dispensation of justice but not to bind and
chain the hand that dispenses it, for otherwise, courts will be mere
slaves to or robots of technical rules, shorn of judicial discretion.
That is precisely why courts in rendering justice have always been,
as they ought to be guided by the norm that when on the balance,
technicalities take a backseat against substantive rights, and not the
other way around. Truly then, technicalities, in the appropriate
language of Justice Makalintal, "should give way to the realities of
the situation.

Indeed, the emerging trend in the rulings of this Court is to

afford every party litigant the amplest opportunity for the proper and
just determination of his cause, free from the constraints of
technicalities.492[18]

Rules of procedure are mere tools designed to expedite the decision or

resolution of cases and other matters pending in court. A strict and rigid
application of rules that would result in technicalities that tend to frustrate rather
than promote substantial justice must be avoided.493[21]

Even if the judgment had become final and executory, it may still be
recalled, and the accused afforded the opportunity to be heard by himself
and counsel.494[22] However, instead of remanding the case to the CA for a
decision on the merits, we opt to resolve the same so as not to further delay the
final disposition of this case.

In all criminal prosecutions, the accused shall have the right to

492 [18]
Id. at 686-687.
493 [21]
Cusi-Hernandez v. Spouses Diaz, 390 Phil. 1245, 1252 (2000).
494 [22]
Telan v. Court of Appeals, supra note 12, at 540-541; People of the Philippines v. Holgado, 85 Phil. 752, 756-757 (1950);
Flores v. Judge Ruiz, 179 Phil. 351, 355 (1979); Delgado v. Court of Appeals, 229 Phil. 362, 366 (1986).
 306
appeal in the manner prescribed by law. The importance and real purpose of the
remedy of appeal has been emphasized in Castro v. Court of Appeals495[27]
where we ruled that an appeal is an essential part of our judicial system and trial
courts are advised to proceed with caution so as not to deprive a party of the
right to appeal and instructed that every party-litigant should be afforded the
amplest opportunity for the proper and just disposition of his cause, freed from
the constraints of technicalities. While this right is statutory, once it is
granted by law, however, its suppression would be a violation of due
process, a right guaranteed by the Constitution. Thus, the importance of
finding out whether petitioner's loss of the right to appeal was due to the PAO
lawyer's negligence and not at all attributed to petitioner.

PEOPLE VS. NADERA, JR., 324 SCRA 490

Mendoza, J.

The cavalier attitude of Atty. Manolo Brotonel of the PAO cannot go

unnoticed. It is discernible in [a] his refusal to cross-examine Oleby
Nadera (the complainant for RAPE); [b] the manner in which he
conducted Maricris Nadera’s cross-examination; and [c] his failure not
only to present evidence for the accused but to inform the accused of his
right to do so, if he desires. Only the faithful performance by counsel of
his duty towards his client can give meaning and substance to the
accused’s right to due process and to be presumed innocent until proven
otherwise. Hence, a lawyer’s duty, especially that of a defense counsel,
must not be taken lightly. It must be performed with all the zeal and vigor
at his command to protect and safeguard the accused’s fundamental rights.

It may be so that the defense counsel really found Oleby’s testimony

to be believable. Nonetheless, he had the bounden duty to scrutinize
private complainant’s testimony to ensure that the accused’s constitutional
right to confront and examine the witnesses against him was not
rendered for naught. It bears pointing out that in rape cases, it is often the
words of the complainant against the accused, the two being the only
persons present during the commission of the crime. This is so because
the complainant’s testimony cannot be accepted with precipitate credulity
without denying the accused’s constitutional right to be presumed
innocent. This is where cross-examination becomes essential to test the
credibility of the witnesses, expose falsehoods or half-truths, uncover the
truth which rehearsed direct examination testimonies may successfully
suppress, and demonstrate inconsistencies in substantial matters which
create reasonable doubt as to the guilt of the accused and thus give
substance to the constitutional right of the accused to confront the
witnesses against him. For unless proven otherwise to be guilty beyond
reasonable doubt, the accused is presumed innocent.

495
 307

(NOTE: For your Legal & Judicial Ethics)

Atty. Brotonel as counsel de oficio, had the duty to defend his client
and protect his rights, no matter how guilty or evil he perceives accused-
appellant to be. The performance of this duty was all the more imperative
because the life of the accused-appellant hangs in the balance. His duty
was no less because he was counsel de oficio.

The Decision of the RTC convicting the accused is SET ASIDE and
the case is remanded for further proceedings consistent with this decision.

Read:

1. P vs. Dischoso, 96 SCRA 957

2. Read also:

PEOPLE VS. YAMBOT, G.R. NO. 120350, 343 SCRA 20, OCT. 30, 2000;
PEOPLE VS. BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG. 25, 2000.

Right to be Heard by himself and counsel and to present evidence for his
defense.

In this case, the non-appearance of counsel for the accused on the scheduled
hearing was not construed as waiver by the accused of his right to present
evidence for his defense. Denial of due process can be successfully invoked
where no valid waiver of rights had been made as in this case.

In another case, the accused-appellant validly waived his right to present

evidence. This is in consonance with the doctrine that everyone has a right to
waive the advantage of a law or rule made solely for the benefit and protection
of the individual in his private capacity, if it can be dispensed with and
relinquished without infringing on any public right, and without detriment to
the community at large.

6. The right to be present during trial

Read:

1. Aquino vs. Military Commission, 63 SCRA 546

2. P vs. Judge, 125 SCRA 269
3. Waiver of the defendant's presence in a criminal prosecution,77
SCRA 430

The right to a speedy trial; not a case of;

Requisites of double jeopardy;
 308
DANTE TAN VS. PEOPLE, G.R. No. 173637, April
21, 2009

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari filed under

Rule 45 of the Revised Rules of Court seeking the reversal and setting
aside of the Decision496[1] dated 22 February 2006 and Resolution 497[2]
dated 17 July 2006 issued by the Court of Appeals in CA-G.R. SP No.
83068 entitled, “People of the Philippines v. Hon. Briccio C. Ygana, in his
capacity as Presiding Judge of Branch 153, Regional Trial Court, Pasig
City and Dante Tan.”

The assailed Decision reinstated Criminal Case No. 119830, earlier

dismissed by the trial court due to an alleged violation of petitioner Dante
T. Tan’s right to speedy trial. The assailed Resolution denied his Motion
for Reconsideration and Motion to Inhibit.

The factual and procedural antecedents of the instant petition are as

follows:

On 19 December 2000, a Panel of Prosecutors of the Department of

Justice (DOJ), on behalf of the People of the Philippines (People), filed
three Informations against Dante T. Tan (petitioner) before the Regional
Trial Court (RTC) of Pasig City. The cases were docketed as Criminal
Cases No. 119830, No. 119831 and No. 119832, all entitled, “People of
the Philippines v. Dante Tan.”

Criminal Case No. 119830498[3] pertains to allegations that petitioner

employed manipulative devises in the purchase of Best World Resources
Corporation (BW) shares. On the other hand, Criminal Cases No.
119831499[4] and No. 119832500[5] involve the alleged failure of petitioner to
file with the Securities and Exchange Commission (SEC) a sworn
statement of his beneficial ownership of BW shares.

In two other related cases, two Informations were filed against a

certain Jimmy Juan and Eduardo G. Lim for violation of the Revised
Securities Act involving BW shares of stock. These were docketed as
Criminal Cases No. 119828 and No. 119829.

On the same day, the DOJ, through Assistant Chief State Prosecutor
Nilo C. Mariano, filed a Motion for Consolidation praying that Criminal
Cases No. 119830, No. 119831 and No. 119832 be consolidated together
[1]
496 Penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Josefina Guevara-Salonga and
Sesinando E. Villon, concurring; rollo, pp. 90-100.
[2]
497 Id. at 102-112.

498[3] Id. at 228-230.

499[4] Id. at 231-232.
500[5] Id. at 233-235.
 309
with Criminal Cases No. 119828 and No. 119829, which the trial court
granted.

On 21 December 2000, Criminal Cases No. 119830, No. 119831 and

No. 119832 were raffled off to the Pasig RTC, Branch 153, presided by
Judge Briccio C. Ygana. Criminal Cases No. 119828 and No. 119829 also
went to the same court.

Petitioner was arraigned on 16 January 2001, and pleaded not guilty

to the charges.501[6]

On 6 February 2001, the pre-trial was concluded, and a pre-trial

order set, among other things, the first date of trial on 27 February
2001.502[7]

Atty. Celia Sandejas of the Securities and Exchange Commission

(SEC), under the direct control and supervision of Public Prosecutor
Nestor Lazaro, entered her appearance for the People; Atty. Agnes
Maranan for petitioner Dante Tan; Atty. Sigfrid Fortun for Eduardo Lim,
Jr.; and Atty. Rudolf Brittanico for Jimmy Juan. State Prosecutors Susan
Dacanay and Edna Villanueva later on took over as lawyers for the
People.

The People insists that during the pendency of the initial hearing on
27 February 2001, the parties agreed that Criminal Cases No. 119831 and
No. 119832 would be tried ahead of Criminal Case No. 119830, and that
petitioner would not interpose any objection to its manifestation, nor
would the trial court disapprove it.

Thereafter, the People presented evidence for Criminal Cases No.

119831 and No. 119832. On 18 September 2001, the prosecution
completed the presentation of its evidence and was ordered by the RTC to
file its formal offer of evidence within thirty days.

After being granted extensions to its filing of a formal offer of

evidence, the prosecution was able to file said formal offer for Criminal
Cases No. 119831 and No. 119832 on 25 November 2003.503[8]

On 2 December 2003, petitioner moved to dismiss Criminal Case

No. 119830 due to the People’s alleged failure to prosecute. Claiming
violation of his right to speedy trial, petitioner faults the People for failing
to prosecute the case for an unreasonable length of time and without
giving any excuse or justification for the delay. According to petitioner,
he was persistent in asserting his right to speedy trial, which he had

501[6] Records, p. 194.

502[7] Id. at 253-259.
[8]
503 Rollo, pp. 247-253.
 310
allegedly done on several instances. Finally, he claimed to have been
substantially prejudiced by this delay.

The prosecution opposed the Motion, insisting on its claim that the
parties had an earlier agreement to defer the trial of Criminal Case No.
119830 until after that of Criminal Cases No. 119831-119832, as the
presentation of evidence and prosecution in each of the five cases
involved were to be done separately. The presentation of evidence in
Criminal Cases No. 119831-119832, however, were done simultaneously,
because they involved similar offenses of non-disclosure of beneficial
ownership of stocks proscribed under Rule 36(a)-1 504[9] in relation to
Sections 32(a)-1505[10] and 56506[11] of Batas Pambansa Bilang 178,
otherwise known as the “Revised Securities Act.” Criminal Case No.
119830 pertains to alleged violation of Section 27 (b), 507[12] in relation to
Section 56 of said act.

On 22 December 2003, Judge Briccio C. Ygana of the Pasig RTC,

Branch 153, ruled that the delays which attended the proceedings of
petitioner’s case (Criminal Case No. 119830) were vexatious, capricious
and oppressive, resulting in violation of petitioner’s right to speedy trial.
The RTC ordered508[13] the dismissal of Criminal Case No. 119830,
disposing as follows:

WHEREFORE, foregoing premises duly considered and

finding the motion to dismiss to be meritorious, the Court
hereby orders Criminal Case No. 119830 DISMISSED.

[9]
504 Section 36. Directors, officers and principal stockholders.—
(a) Every person who is directly or indirectly the beneficial owner of more than ten per centum of any class of any
equity security which is registered pursuant to this Act, or who is a director or an officer of the issuer of such security,
shall file, at the time of the registration of such security on a securities exchange or by the effective date of a
registration statement or within ten days after he becomes such a beneficial owner, director, or officer, a statement with
the Commission and, if such security is registered on a securities exchange, also with the exchange, of the amount of
all equity securities of such issuer of which he is the beneficial owner, and within ten days after the close of each
calendar month thereafter, if there has been a change in such ownership during such month, shall file with the
Commission, and if such security is registered on a securities exchange, shall also file with the exchange, a statement
indicating his ownership at the close of the calendar month and such changes in his ownership as have occurred during
such calendar month.
[10]
505 Section 32. Reports. – (a) (1) Any person who, after acquiring directly or indirectly the beneficial ownership
of any equity security of a class which is registered pursuant to this Act, is directly or indirectly the beneficial owner of
more than ten (10%) per centum of such class shall, within ten days after such acquisition or such reasonable time as
fixed by the Commission, submit to the issuer of the security, to the stock exchanges where the security is traded, and
to the Commission a sworn statement x x x.
[11]
506 Penalties. Any person who violates any of the provisions of this Act, or the rules and regulations promulgated
by the Commission under authority thereof, or any person who, in a registration statement filed under this Act, makes
any untrue statement of a material fact of omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, shall, upon conviction, suffer a fine of not less than five thousand
(P5,000.00) pesos nor more than five hundred thousand (P500,000.00) pesos or imprisonment of not less than seven
(7) years nor more than twenty one (21) years, or both in the discretion of the court. If the offender is a corporation,
partnership or association or other juridical entity, the penalty shall be imposed upon the officer or officers of the
corporation, partnership, association or entity responsible for the violation, and if such officer is an alien, he shall, in
addition to the penalties prescribed, be deported without further proceedings after service of sentence.
[12]
507 Section 27. Manipulative and deceptive devices. It shall be unlawful for any person, directly or indirectly, by
the use of any facility of any exchange –
xxxx
(b) To use or employ, in connection with the purchase or sale of any security, any manipulative or deceptive device or
contrivance.
[13]
508 Rollo, pp. 835-855.
 311
On motion for reconsideration, the prosecution insisted that the
parties agreed to hold separate trials of the BW cases, with petitioner
acquiescing to the prosecution of Criminal Cases No. 119831 and No.
119832 ahead of Criminal Case No. 119830. In an Order dated 20
January 2004, the RTC denied the Motion for Reconsideration for lack of
merit.

The RTC’s order of dismissal was elevated to the Court of Appeals

via a petition for certiorari, with the People contending that:

RESPONDENT JUDGE GRAVELY ABUSED HIS

DISCRETION IN RULING THAT THE PEOPLE VIOLATED
DANTE TAN’S RIGHT TO SPEEDY TRIAL, ALBEIT, THE
LATTER AND RESPONDENT JUDGE HIMSELF HAVE
CONFORMED TO THE DEFERMENT OF CRIMINAL
CASE NO. 119830 PENDING HEARING OF THE TWO
OTHER RELATED CASES.

Setting aside the trial court’s order of dismissal, the Court of Appeals
granted the petition for certiorari in its Decision dated 22 February 2006.
In resolving the petition, the appellate court reinstated Criminal Case No.
119830 in this wise:

WHEREFORE, the petition is granted and the assailed

Orders dated December 22, 2003 and January 20, 2004 are set
aside. Criminal Case No. 119830 is reinstated and the trial
court is ordered to conduct further proceedings in said case
immediately.509[14]

Petitioner moved for a reconsideration of the Decision and filed a

motion for inhibition of the Justices who decided the case.

On 17 July 2006, the Court of Appeals denied both motions.

Petitioner Dante Tan, henceforth, filed the instant petition for review
on certiorari, raising the following issues:

I.

WHETHER OR NOT THE ACTING SECRETARY OF

JUSTICE MAY VALIDLY EXECUTE THE CERTIFICATE
OF NON-FORUM SHOPPING ATTACHED TO THE
PETITION FOR CERTIORARI FILED BY THE PEOPLE
WITH THE COURT OF APPEALS EVEN THOUGH THE
CRIMINAL ACTION WAS INSTITUTED BY A
COMPLAINT SUBSCRIBED BY THE AUTHORIZED

509[14] Id. at 99-100.

 312
OFFICERS OF THE SECURITIES AND EXCHANGE
COMMISSION.

II.

WHETHER OR NOT THE PETITION FOR CERTIORARI

VIOLATED TAN’S RIGHT AGAINST DOUBLE
JEOPARDY.

III.

WHETHER OR NOT CRIMINAL CASE NO. 119830 WAS

CORRECTLY DISMISSED BY THE TRIAL COURT ON
THE GROUND OF VIOLATION OF TAN’S RIGHT TO
SPEEDY TRIAL.

IV.

WHETHER OR NOT THE TRIAL COURT COMMITTED

GRAVE ABUSE OF DISCRETION.

We first resolve the preliminary issues.

In an attempt at having the instant petition dismissed, petitioner

contends that the certificate of non-forum shopping attached to the
People’s appeal before the Court of Appeals should have been signed by
the Chairman of the SEC as complainant in the cases instead of Acting
DOJ Secretary Merceditas N. Gutierrez.

Petitioner’s argument is futile. The Court of Appeals was correct in

sustaining the authority of Acting DOJ Secretary Merceditas Gutierrez to
sign the certificate of non-forum shopping of the petition for certiorari
before said court. It must be stressed that the certification against forum
shopping is required to be executed by the plaintiff. 510[15] Although the
complaint-affidavit was signed by the Prosecution and Enforcement
Department of the SEC, the petition before the Court of Appeals
originated from Criminal Case No. 119830, where the plaintiff or the
party instituting the case was the People of the Philippines. Section 2,
Rule 110 of the Rules of Court leaves no room for doubt and establishes
that criminal cases are prosecuted in the name of the People of the
Philippines, the offended party in criminal cases. Moreover, pursuant to
Section 3, paragraph (2) of the Revised Administrative Code, the DOJ is
the executive arm of the government mandated to investigate the
commission of crimes, prosecute offenders and administer the probation
and correction system. It is the DOJ, through its prosecutors, which is
authorized to prosecute criminal cases on behalf of the People of the
510[15] Regalado, REMEDIAL LAW, p. 729.
 313
511[16]
Philippines. Prosecutors control and direct the prosecution of
criminal offenses, including the conduct of preliminary investigation,
subject to review by the Secretary of Justice. Since it is the DOJ which is
the government agency tasked to prosecute criminal cases before the trial
court, the DOJ is best suited to attest whether a similar or related case has
been filed or is pending in another court of tribunal. Acting DOJ
Secretary Merceditas N. Gutierrez, being the head of the DOJ, therefore,
had the authority to sign the certificate of non-forum shopping for
Criminal Case No. 119830, which was filed on behalf of the People of the
Philippines.

The preliminary issues having been resolved, the Court shall

proceed to discuss the main issues.

At the crux of the controversy is the issue of whether there was a

violation of petitioner Dante Tan’s right to speedy trial.

Petitioner Dante Tan assails the Decision and Resolution of the

Court of Appeals in CA-G.R. SP No. 83068. The appellate court
determined that he “impliedly agreed” that Case No. 119830 would not be
tried until after termination of Criminal Cases No. 119831-119832, which
finding was grounded entirely on speculations, surmises and conjectures.

Both parties concede that this issue is factual. It is a basic rule that
factual issues are beyond the province of this Court in a petition for
review, for it is not our function to review evidence all over again.512[17]
Rule 45 of the Rules of Court provides that only questions of law may be
raised in this Court in a petition for review on certiorari.513[18] The reason
is that the Court is not a trier of facts. 514[19] However, the rule is subject to
several exceptions.515[20] Under these exceptions, the Court may delve into
and resolve factual issues, such as in cases where the findings of the trial
court and the Court of Appeals are absurd, contrary to the evidence on
record, impossible, capricious or arbitrary, or based on a misappreciation
of facts.

In this case, the Court is convinced that the findings of the Court of
Appeals on the substantial matters at hand, while conflicting with those of
the RTC, are adequately supported by the evidence on record. We,
therefore, find no reason to deviate from the jurisprudential holdings and
treat the instant case differently.

An accused’s right to “have a speedy, impartial, and public trial” is

guaranteed in criminal cases by Section 14(2) of Article III of the
Constitution. This right to a speedy trial may be defined as one free
511[16] Revised Administrative Code, Section 3(2).
[17]
512 Centeno v. Viray, 440 Phil. 881, 887 (2002).
[18]
513 Busmente, Jr. v. National Labor Relations Commission, G.R. No. 73647, 8 April 1991, 195 SCRA 710, 713.
[19]
514 Tad-y v. People, G.R. No. 148862, 11 August 2005, 466 SCRA 474, 492; Romago Electric Co., Inc. v. Court
of Appeals, 388 Phil. 964, 975 (2000).
[20]
515 Palon v. Nino, 405 Phil. 670, 681 (2001).
 314
from vexatious, capricious and oppressive delays, its “salutary
objective” being to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of having his
guilt determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he may
interpose.516[21] Intimating historical perspective on the evolution of the
right to speedy trial, we reiterate the old legal maxim, “justice delayed is
justice denied.” This oft-repeated adage requires the expeditious
resolution of disputes, much more so in criminal cases where an accused
is constitutionally guaranteed the right to a speedy trial.517[22]

Following the policies incorporated under the 1987 Constitution,

Republic Act No. 8493, otherwise known as “ The Speedy Trial Act of
1998,” was enacted, with Section 6 of said act limiting the trial period
to 180 days from the first day of trial. 518[23] Aware of problems resulting
in the clogging of court dockets, the Court implemented the law by
issuing Supreme Court Circular No. 38-98, which has been incorporated
in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.519[24]

In Corpuz v. Sandiganbayan,520[25] the Court had occasion to state –

The right of the accused to a speedy trial and to a speedy

disposition of the case against him was designed to prevent the
oppression of the citizen by holding criminal prosecution
suspended over him for an indefinite time, and to prevent
delays in the administration of justice by mandating the courts
to proceed with reasonable dispatch in the trial of criminal
cases. Such right to a speedy trial and a speedy disposition
of a case is violated only when the proceeding is attended by
vexatious, capricious and oppressive delays. The inquiry as
to whether or not an accused has been denied such right is
not susceptible by precise qualification. The concept of a
speedy disposition is a relative term and must necessarily be
a flexible concept.

[21]
516 Acebedo v. Sarmiento, 146 Phil. 820, 823 (1970).
[22]
517 PHILIPPINE CONSTITUTION, Art. III, Sec. 14(2).
518 [23]
SECTION 6. Time Limit for Trial. – In criminal cases involving persons charged of a crime, except those
subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months
imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the
justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for
continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial.
In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of the Rules of Court.
519 [24]
SEC. 2. Continuous trial until terminated; postponements.—Trial once commenced shall continue from day
to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on
a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the
entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by
the Supreme Court.
The time limitations provided under this section and the preceding section shall not apply where special laws
or circulars of the Supreme Court provide for a shorter period of trial.
520[25] G.R. No. 162214, 11 November 2004, 442 SCRA 294, 312-313.
 315
While justice is administered with dispatch, the essential
ingredient is orderly, expeditious and not mere speed. It
cannot be definitely said how long is too long in a system
where justice is supposed to be swift, but deliberate. It is
consistent with delays and depends upon circumstances. It
secures rights to the accused, but it does not preclude the rights
of public justice. Also, it must be borne in mind that the rights
given to the accused by the Constitution and the Rules of
Court are shields, not weapons; hence, courts are to give
meaning to that intent.

The Court emphasized in the same case that:

A balancing test of applying societal interests and the

rights of the accused necessarily compels the court to approach
speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of

his right to a speedy disposition of the case and to a speedy
trial, four factors must be considered: (a) length of delay; (b)
the reason for the delay; (c) the defendant’s assertion of his
right; and (d) prejudice to the defendant. x x x.

Closely related to the length of delay is the reason or

justification of the State for such delay. Different weights
should be assigned to different reasons or justifications
invoked by the State. x x x.521[26]

Exhaustively explained in Corpuz v. Sandiganbayan, an accused’s

right to speedy trial is deemed violated only when the proceeding is
attended by vexatious, capricious, and oppressive delays. In determining
whether petitioner was deprived of this right, the factors to consider and
balance are the following: (a) duration of the delay; (b) reason therefor;
(c) assertion of the right or failure to assert it; and (d) prejudice caused by
such delay.522[27]

From the initial hearing on 27 February 2001 until the time the
prosecution filed its formal offer of evidence for Criminal Cases No.
119831-119832 on 25 November 2003, both prosecution and defense
admit that no evidence was presented for Criminal Case No. 119830.
Hence, for a period of almost two years and eight months, the prosecution
did not present a single evidence for Criminal Case No. 119830.

521[26] Id. at 313-314.

[27]
522 Abardo v. Sandiganbayan, 407 Phil. 985, 999-1000 (2001); Dela Pena v. Sandiganbayan, 412 Phil. 921, 929
(2001).
 316
The question we have to answer now is whether there was
vexatious, capricious, and oppressive delay. To this, we apply the four-
factor test previously mentioned.

We emphasize that in determining the right of an accused to speedy

trial, courts are required to do more than a mathematical computation of
the number of postponements of the scheduled hearings of the case. A
mere mathematical reckoning of the time involved is clearly
insufficient,523[28] and particular regard must be given to the facts and
circumstances peculiar to each case.524[29]

In Alvizo v. Sandiganbayan,525[30] the Court ruled that there was no

violation of the right to speedy trial and speedy disposition. The Court
took into account the reasons for the delay, i.e., the frequent amendments
of procedural laws by presidential decrees, the structural reorganizations
in existing prosecutorial agencies and the creation of new ones by
executive fiat, resulting in changes of personnel, preliminary jurisdiction,
and the functions and powers of prosecuting agencies. The Court also
considered the failure of the accused to assert such right, and the lack of
prejudice caused by the delay to the accused.

In Defensor-Santiago v. Sandiganbayan,526[31] the complexity of the

issues and the failure of the accused to invoke her right to speedy
disposition at the appropriate time spelled defeat for her claim to the
constitutional guarantee.

In Cadalin v. Philippine Overseas Employment Administration’s

Administrator,527[32] the Court, considering also the complexity of the
cases and the conduct of the parties’ lawyers, held that the right to speedy
disposition was not violated therein.

Petitioner’ s objection to the prosecution’s stand

that he gave an implied consent to the separate trial of
Criminal Case No. 119830 is belied by the records of the
case. No objection was interposed by his defense
counsel when this matter was discussed during the
initial hearing.528[33] Petitioner’ s conformity thereto can
be deduced from his non-objection at the preliminary
hearing when the prosecution manifested that the
evidence to be presented would be only for Criminal
Cases No. 119831-119832. His failure to object to the
[28]
523 Socrates v. Sandiganbayan, 324 Phil. 151, 170 (1996); Tai Lim v. Court of Appeals, 375 Phil. 971, 977 (1999).
[29]
524 Santiago v. Garchitorena, G.R. No. 109266, 2 December 1993, 228 SCRA 214, 221.
[30]
525 G.R. No. 101689, 17 March 1993, 220 SCRA 55.
[31]
526 408 Phil. 767 (2001).
[32]
527 G.R. No. 104776, 5 December 1994, 238 SCRA 721.
[33]
528 TSN, 27 February 2001.
 317
prosecution’ s manifestation that the cases be tried
separately is fatal to his case. The acts, mistakes and
negligence of counsel bind his client, except only when
such mistakes would result in serious injustice. 529[34] In
fact, petitioner’ s acquiescence is evident from the
transcript of stenographic notes during the initial
presentation of the People’s evidence in the five BW
cases on 27 February 2001, herein quoted below:
COURT: Atty. Sandejas, call your witness.

ATTY. SANDEJAS [SEC Prosecuting Lawyer]: May we

make some manifestation first, your Honor, before we
continue presenting our witness. First of all, this witness
will only be testifying as to two (2) of the charges: non-
disclosure of beneficial ownership of Dante Tan x x x.

xxxx

COURT: (to Atty. Sandejas) Call your witness.

ATTY. SANDEJAS: Our witness is Mr. Wilfredo Baltazar of

the Securities and Exchange Commission, your Honor.
We are presenting this witness for the purpose of non-
disclosure of beneficial ownership case…

COURT: I would advise the counsel from the SEC to make it

very clear your purpose in presenting your first witness.

ATTY. SANDEJAS: Yes, your Honor. Can I borrow the file?

COURT: Show it to counsel.

ATTY. SANDEJAS: Crim. Case Nos. 119831 and 119832,

for Violation of RA Rule 36(a)1, in relation to Sec. 32
(a)-1 of the Revised Securities Act when he failed to
disclose his beneficial ownership amounting to more than
10% which requires disclosure of such fact.530[35]

During the same hearing, the People manifested in open court that
the parties had agreed to the separate trials of the BW Cases:

[34]
529 Producers Bank of the Philippines v. Court of Appeals, 430 Phil. 812, 823 (2002); People v. Hernandez, 328
Phil. 1123, 1143 (1996).
530[35] TSN, 27 February 2001, pp. 3-7; CA rollo, pp. 87-91.
 318
PROSECUTOR LAZARO:

May we be allowed to speak, your Honor?

Your Honor please, as we x x x understand, this is not a joint

trial but a separate trial x x x so as manifested by the SEC
lawyer, the witness is being presented insofar as 119831 and
119832 as against Dante Tan only x x x.531[36]

The transcript of stenographic notes taken from the 3 April 2001

hearing further clarifies that only the two cases against Dante Tan were
being prosecuted:

ATTY. DE LA CRUZ [new counsel for accused Eduardo Lim,

Jr.]:

Your Honor, please, may I request clarification from the

prosecutors regarding the purpose of the testimony of the
witness in the stand. While the Private Prosecutor stated the
purpose of the testimony of the witness. . .

xxxx

PROSECUTOR LAZARO:

I was present during the last hearing. I was then going

over the transcript of this case, well, I believe the testimony x
x x mainly [is] on accused Dante Tan, your Honor. As a matter
of fact, there was a clarification made by the parties and
counsels after the witness had testified that the hearing in these
cases is not a joint trial because it involves separate charges,
involving different documents, your Honor. That is why the
witness already testified only concerning Dante Tan. Per the
query made by Atty. Fortun, because at that time, Atty. Fortun
was still representing Mr. Lim, I believe, your Honor, then I
understand that the testimony of this witness cannot just be
adopted insofar as the other accused, your Honor.

ATTY. MARANAN:

We confirm that, your Honor, since x x x particularly

since this is already cross, it is clear that the direct examination
dealt exclusively with Mr. Dante Tan.

PROS. LAZARO:

531[36] Id. at 71-74; id. at 155-156.

 319
532[37]
Mr. Dante Tan, involving the 2 (two) cases.

Moreover, although periods for trial have been stipulated, these

periods are not absolute. Where periods have been set, certain exclusions
are allowed by law.533[38] After all, this Court and the law recognize that it
is but a fact that judicial proceedings do not exist in a vacuum and must
contend with the realities of everyday life. In spite of the prescribed time
limits, jurisprudence continues to adopt the view that the fundamentally
recognized principle is that the concept of speedy trial is a relative term
and must necessarily be a flexible concept.534[39]

As to the assertion that delay in the presentation of evidence for

Criminal Case No. 119830 has prejudiced petitioner because the witnesses
for the defense may no longer be available at this time, suffice it to say
that the burden of proving his guilt rests upon the prosecution. 535[40]
Should the prosecution fail for any reason to present evidence sufficient to
show his guilt beyond reasonable doubt, petitioner will be acquitted. It is
safely entrenched in our jurisprudence that unless the prosecution
discharges its burden to prove the guilt of an accused beyond reasonable
doubt, the latter need not even offer evidence in his behalf.536[41]

In the cases involving petitioner, the length of delay, complexity of

the issues and his failure to invoke said right to speedy trial at the
appropriate time tolled the death knell on his claim to the constitutional
guarantee.537[42] More importantly, in failing to interpose a timely
objection to the prosecution’s manifestation during the preliminary
hearings that the cases be tried separately, one after the other, petitioner
was deemed to have acquiesced and waived his objection thereto.

For the reasons above-stated, there is clearly insufficient ground to

conclude that the prosecution is guilty of violating petitioner’s right to
speedy trial. Grave abuse of discretion defies exact definition, but
generally refers to “capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction.” Any capricious or whimsical exercise
of judgment in dismissing a criminal case is equivalent to lack of
jurisdiction. This is true in the instant case.

There is also no merit to petitioner’s claim that a reversal of the

RTC’s Order dismissing Criminal Case No. 119830 is a violation of his
constitutional right against double jeopardy which dismissal was founded
on an alleged violation of his right to speedy trial.

532 [37]
TSN, 3 April 2001, pp. 5-10; id. at 225-230.
[38]
533 Solar Team Entertainment, Inc. v. Judge How, 393 Phil. 172, 184 (2000).
[39]
534 Id.
[40]
535 Republic v. Sandiganbayan and Marcos, 461 Phil. 598, 615 (2003).
[41]
536 People v. Ganguso, G.R. No 115430, 23 November 1995, 250 SCRA 268, 274-275; People v. Abellanosa, 332
Phil. 760, 788 (1996), citing People v. Baclayon, G.R. No. 110837, 29 March 1994, 231 SCRA 578, 584, citing People
v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 358-359.
[42]
537 Santiago v. Garchitorena, supra note 29.
 320
The constitutional protection against double jeopardy shields one
from a second or later prosecution for the same offense. Article III,
Section 21 of the 1987 Constitution declares that no person shall be twice
put in jeopardy of punishment for the same offense, providing further that
if an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.

Following the above constitutional provision, Section 7, Rule 117 of

the Revised Rules of Court found it apt to stipulate:

SEC. 7. Former conviction or acquittal; double jeopardy.

– When an accused has been convicted or acquitted, or the
case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a
bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in
the offense charged in the former complaint or information.

For double jeopardy to attach then, the following elements in the

first criminal case must be present:

(a) The complaint or information or other formal charge was

sufficient in form and substance to sustain a conviction;

(b) The court had jurisdiction;

(c) The accused had been arraigned and had pleaded; and

(d) He was convicted or acquitted or the case was dismissed

or otherwise terminated without the express consent of the
accused.538[43]

Among the above-cited elements, we are concerned with the fourth

element, conviction or acquittal, or the case was dismissed or otherwise
terminated without the express consent of the accused. This element is
crucial since, as a general rule, the dismissal of a criminal case resulting
in acquittal, made with the express consent of the accused or upon his
own motion, will not place the accused in double jeopardy. 539[44] This rule,
however, admits of two exceptions, namely: insufficiency of evidence and
538[43] Condrada v. People, 446 Phil. 635, 641 (2003).
539[44] Id.
 321
540[45]
denial of the right to speedy trial. While indeed petitioner was in fact
the one who filed the Motion to Dismiss Criminal Case No. 119830, the
dismissal thereof was due to an alleged violation of his right to speedy
trial, which would otherwise put him in double jeopardy should the same
charges be revived. Petitioner’s situation is different. Double jeopardy has
not attached, considering that the dismissal of Criminal Case No. 119830
on the ground of violation of his right to speedy trial was without basis
and issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. Where the right of the accused to speedy trial has not been
violated, there is no reason to support the initial order of dismissal.

Following this Court’s ruling in Almario v. Court of Appeals,541[46] as

petitioner’s right to speedy trial was not transgressed, this exception to the
fourth element of double jeopardy – that the defendant was acquitted or
convicted, or the case was dismissed or otherwise terminated without the
express consent of the accused – was not met. Where the dismissal of the
case was allegedly capricious, certiorari lies from such order of dismissal
and does not involve double jeopardy, as the petition challenges not the
correctness but the validity of the order of dismissal; such grave abuse of
discretion amounts to lack of jurisdiction, which prevents double jeopardy
from attaching.542[47]

As this Court ruled in People v. Tampal,543[48] reiterated in People v.

Leviste,544[49] where we overturned an order of dismissal by the trial court
predicated on the right to speedy trial –

It is true that in an unbroken line of cases, we have held

that dismissal of cases on the ground of failure to prosecute is
equivalent to an acquittal that would bar further prosecution of
the accused for the same offense. It must be stressed, however,
that these dismissals were predicated on the clear right of the
accused to speedy trial. These cases are not applicable to the
petition at bench considering that the right of the private
respondents to speedy trial has not been violated by the State.
x x x.

From the foregoing, it follows that petitioner cannot claim that

double jeopardy attached when said RTC order was reversed by the Court
of Appeals. Double jeopardy does not apply to this case, considering that
there is no violation of petitioner’s right to speedy trial.

The old adage that justice delayed is justice denied has never been
more valid than in our jurisdiction, where it is not a rarity for a case to
[45]
540 Id.; Philippine Savings Bank v. Bermoy, G.R. No. 151912, 26 September 2005, 471 SCRA 94, 106, citing
People v. Bans, G.R. No. 104147, 8 December 1994, 239 SCRA 48, 55.
541[46] 407 Phil. 279 (2002).
542[47] Regalado, REMEDIAL LAW COMPENDIUM (Vol. II, 2001), p. 503.
543[48] 314 Phil. 35, 45 (1995).
544[49] 325 Phil. 525, 537 (1996).
 322
drag in our courts for years and years and even decades. It was this
difficulty that inspired the constitutional requirement that the rules of
court to be promulgated by the Supreme Court shall provide for a
simplified and inexpensive procedure for the speedy trial and disposition
of cases.545[50] Indeed, for justice to prevail, the scales must balance, for
justice is not to be dispensed for the accused alone.546[51]

Evidently, the task of the pillars of the criminal justice system is to

preserve our democratic society under the rule of law, ensuring that all
those who appear before or are brought to the bar of justice are afforded a
fair opportunity to present their side. As correctly observed by the Court
of Appeals, Criminal Case No. 119830 is just one of the many
controversial cases involving the BW shares scam where public interest is
undoubtedly at stake. The State, like any other litigant, is entitled to its
day in court, and to a reasonable opportunity to present its case. A hasty
dismissal, instead of unclogging dockets, has actually increased the
workload of the justice system and unwittingly prolonged the litigation. 547
[52]

Finally, we reiterate that the rights given to the accused by the

Constitution and the Rules of Court are shields, not weapons. Courts are
tasked to give meaning to that intent. There being no capricious,
vexatious, oppressive delay in the proceedings, and no postponements
unjustifiably sought, we concur in the conclusions reached by the Court of
Appeals.

WHEREFORE, the petition is DISMISSED. The assailed 22

February 2006 Decision and 17 July 2006 Resolution issued by the Court
of Appeals in CA-G.R. SP No. 83068 are hereby AFFIRMED.

The instant case is REMANDED to the Regional Trial Court,

Branch 153, Pasig City for further proceedings in Criminal Case No.
119830 with reasonable dispatch.

JAIME BERNAT VS. SANDIGANBAYAN, May 20,

2004

Right to speedy disposition of case.

Facts:

1. On August 14, 1991, the petitioner and several others were charged of
violation of Section 3 [e] of RA 3019, otherwise known as the Anti-
graft and Corrupt Practices Act;

545 [50]
Justice Isagani Cruz, PHILIPPINE POLITICAL LAW, p. 292.
[51]
546 Dimatulac v. Villon, 358 Phil. 328, 366 (1998); People v. Subida, G.R. No. 145945, 27 June 2006, 493 SCRA
125, 137.
[52]
547 People v. Leviste, supra note 49.
 323
2. On August 23, 1994 after the presentation of the parties’ evidence, the
case was deemed submitted for decision before the 2nd Division;
th
3. Thereafter, the case was unloaded to the newly created 5 Division,
particularly to Justice Godofredo Legaspi and later re-assigned to
Justice Ma. Cristina Cortez-Estrada upon her assumption of office on
November 3, 1998.
4. In the early part of 2002 while Justice Estrada was writing the decision
of the case, she found out that the November 26, 1993 transcript of
stenographic notes, which was the cross-examination of the petitioner,
was missing so she called the parties for a conference on April 19,
2002 to discuss the matter.
5. Instead of attending the conference, petitioner filed a motion to dismiss
the case based on the alleged violation of his right to speedy trial. The
Court denied the same as well as the subsequent Motion for
Reconsideration. Hence, this Petition.

Issue:

Was there violation of the petitioner’s right to a speedy disposition of

his case when the same was not decided for almost 8 years from the
time it was “deemed submitted for decision?”

Held:

No. The right is violated only if the proceedings were attended by

vexatious, capricious and oppressive delays. The determination of
whether the delays are of said nature is relative and cannot be based on
mere mathematical reckoning of time. Particular regard to the facts and
circumstances of the case. As held in the case of DE LA PENA VS.
SANDIGANBAYAN, certain factors shall be considered and balanced
to determine if there is delay, as follows:

3. Length of the delay;

4. Reasons for the delay;
5. Assertion or failure to assert such right by the accused; and
6. Prejudiced caused by the delay.

There is no violation of the right to speedy disposition of his case

because petitioner failed to assert his constitutional right to a speedy
disposition of his case. During the 8-year period prior to April 19,
2002, petitioner did not complain about the long delay in deciding his
case.

a. Read Admin. Circular No. 4 of the Supreme Court dated September

22, 1988
b. Department of Justice Circular No. 27, dated September 16, 1988

c. When shall this right starts

 324

Read:

1. P vs. Orsal, 113 SCRA 226

d. To what proceedings is this right available

Read:

1. Caballero vs. Alfonso, 153 SCRA 153

e. In general

Read:

1. The right to speedy trial, 28 SCRA 601

2. Conde vs. Rivera, 59 Phil. 650
3. Ventura vs. People, Nov. 6,1976
4. Martin vs. Ver, July 25, 1983
5. Bermisa vs. CA, 92 SCRa
6. Luneta vs. Mil. Com., 102 SCRA 56
7. P vs. Baladjay, 113 SCRA 284
8. P vs. Araula, 111 SCRA 598
9. Regaspi vs. Castillo, 69 SCRA 160
10. Acevedo vs. Sarmiento, 36 SCRA 247
11. Nepumuceno vs. Secretary,108 SCRA 658
12. Tatad vs. SB, 159 SCRA 70
13. P vs. CFI of Rizal, 161 SCRA 249
14. P vs. Laya, 161 SCRA 327
15. Salcedovs. Mendoza, 88 SCRA 811
16. DUTERTE VS. SANDIGANBAYAN, 289 SCRA 721
18. ANGCHANGCO VS. OMBUDSMAN, 269 SCRA 301

SUMBANG VS. GEN. COURT MARTIAL, G.R. NO. 140188, 337 SCRA
227, AUG. 3, 2000; BLANCO VS. SANDIGANBAYAN, G.R. NOS. 136757
– 58, 346 SCRA 108, NOV. 27, 2000; SOLAR TEAM ENTERTAINMENT,
INC. HON. HOW, G.R. NO. 140863, 338 SCRA 51, AUG. 22, 2000.

Speedy Disposition of Cases.

(i) The determination of whether an accused had been denied the right to
speedy trial depends on the surrounding circumstances of each case. Although it
took about 8 years before the trial of this case was resumed, such delay did not
amount to violation of petitioner’s right to speedy trial considering that such
delay was not by attributable to the prosecution.
 325
Factors to consider in determining whether or not such right has been
violated:

1. length of delay,
2. reasons for such delay, and
3. assertion or failure to assert such rights by
the accused and the prejudice caused by
the delay.

(ii) Speedy Trial Act of 1998. The authority of the Secretary of Justice to review
resolutions of his subordinates even after an information has already been filed
in court does not present an irreconcilable conflict with the 30-day period
prescribed in Sec. 7 of the Speedy Trial Act of 1998.

8. The right to an impartial trial

Read:

1. P vs. Opida, June 13,1986

1-a. P vs. Tuazon, 159 SCRA 317
2. Olaguer vs. Chief of Staff, May 22, 1987
3. Mateo, Jr. vs. Villaluz,90 SCRA 16
4. P vs. Sendaydiego, 81 SCRA 120
5. Dimacuha vs. Concepcion, 117 SCRA 630

9. Right to a public trial

Read:

1. Garcia vs. Domingo, July 25,1973

2. P vs. Tampus, March 28,1980

10. The right to be informed of the nature and

cause of accusation. When the same is
considered waived.

THE PEOPLE OF THE PHILIPPINES VS. JERRY

NAZARENO, G.R. No. 167756, April 8, 2008

THE FACTS:

On March 17, 1999, appellant Jerry Nazareno was indicted for violation
of Article 266-A of the Revised Penal Code in Criminal Case No. 2638 for the
alleged rape of BBB, his daughter. The information reads:

That sometime and between January 1992 up to December 06, 1998, in

Barangay Codon, Municipality of San Andres, Province of Catanduanes,
 326
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused by means of force, violence and intimidation did then and there
willfully, unlawfully, feloniously and repeatedly made sexual intercourse with
his daughter BBB at the age of 7 through 14 years old against her will.

The Information is worded thus:

That from sometime in January 1990 up to December 1998 in Barangay

Codon, municipality of San Andres, Catanduanes, and within the jurisdiction of
the Honorable Court, the said accused, being the father of the complainant, did
then and there willfully, feloniously and criminally repeatedly had sexual
intercourse with her daughter AAA, then five years old up to the time when she
was 15-years-old against her will.

CONTRARY TO LAW.548[18]

After trial , the accused was found guilty of qualified rape in both cases.
He appealed his conviction to the Court of Appeals in accordance with the
People vs. Mateo Doctrine but the Court of Appeals affirmed the RTC Decision.
Hence, this Petition before the Supreme Court.

I S S U E:

Is the constitutional right of the petitioner to be informed of the nature and

cause of accusation against him violated since the information failed to specify
with certainty the approximate date of the commission of the offenses for rape
which is a fatal defect.

H E L D:

The argument is specious. An information is intended to inform an

accused of the accusations against him in order that he could adequately
prepare his defense. Verily, an accused cannot be convicted of an offense
unless it is clearly charged in the complaint or information. Thus, to ensure that
the constitutional right of the accused to be informed of the nature and cause of
the accusation against him is not violated, the information should state the name
of the accused; the designation given to the offense by the statute; a statement
of the acts or omissions so complained of as constituting the offense; the name
of the offended party; the approximate time and date of the commission of the
offense; and the place where the offense has been committed. 549[27] Further, it
must embody the essential elements of the crime charged by setting forth the
facts and circumstances that have a bearing on the culpability and liability of
the accused, so that he can properly prepare for and undertake his defense.550[28]

548[18] Records, Vol. II, p. 18.

549[27] People v. Quitlong, 354 Phil. 372, 388 (1998), citing Rules of Criminal Procedure (2000), Rule 110, Secs. 6 and 8.
550[28] Id.
 327
However, it is not necessary for the information to allege the date and
time of the commission of the crime with exactitude unless time is an essential
ingredient of the offense.551[29] In People v. Bugayong,552[30] the Court held that
when the time given in the information is not the essence of the offense, the
time need not be proven as alleged; and that the complaint will be sustained if
the proof shows that the offense was committed at any time within the period of
the statute of limitations and before the commencement of the action.

In People v. Gianan,553[31] the Court ruled that the time of the commission
of rape is not an element of the said crime as it is defined in Article 335 of the
Revised Penal Code. The gravamen of the crime is the fact of carnal
knowledge under any of the circumstances enumerated therein, i.e.: (1) by
using force or intimidation; (2) when the woman is deprived of reason or
otherwise unconscious; and (3) when the woman is under twelve years of age or
is demented. In accordance with Rule 110, Section 11 of the 2000 Rules of
Criminal Procedure, as long as it alleges that the offense was committed “at any
time as near to the actual date at which the offense was committed,” an
information is sufficient.

The doctrine was reiterated with greater firmness in People v.

Salalima554[32] and in People v. Lizada.555[33]

In the case under review, the information in Criminal Case No. 2638
alleged that the rape of BBB transpired “sometime and between January 1992
up to December 6, 1998 in Barangay Codon, Municipality of San Andres,
Province of Catanduanes.” In Criminal Case No. 2650, the information averred
that “from sometime in January 1990 up to December 1998 in Barangay
Codon, Municipality of San Andres, Province of Catanduanes,” AAA was raped
by appellant. To the mind of the Court, the recitals in the informations
sufficiently comply with the constitutional requirement that the accused be
informed of the nature and cause of the accusation against him.

In People v. Garcia,556[34] the Court upheld a conviction for ten counts of

rape based on an Information which alleged that the accused committed
multiple rapes “from November 1990 up to July 21, 1994.” In People v.
Espejon,557[35] the Court found the appellant liable for rape under an information
charging that he perpetrated the offense “sometime in the year 1982 and dates
subsequent thereto” and “sometime in the year 1995 and subsequent thereto.”

In the case under review, the information in Criminal Case No. 2638
alleged that the rape of BBB transpired “sometime and between January 1992

551[29] People v. Santos, 390 Phil. 150, 161 (2000); Rules of Criminal Procedure (2000), Rule 110, Sec. 11 reads:
Sec. 11. Date of commission of the offense. – It is not necessary to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on
a date as near as possible to the actual date of its commission.
552[30] G.R. No. 126518, December 2, 1998, 299 SCRA 528.
553[31] G.R. Nos. 135288-93, September 15, 2000, 340 SCRA 477.
554[32] G.R. Nos. 137969-71, August 15, 2001, 363 SCRA 192.
555[33] G.R. Nos. 143468-71, January 24, 2003, 396 SCRA 62.
556[34] G.R. No. 120093, November 6, 1997, 281 SCRA 463.
557[35] G.R. No. 134767, February 20, 2002, 377 SCRA 412.
 328
up to December 6, 1998 in Barangay Codon, Municipality of San Andres,
Province of Catanduanes.” In Criminal Case No. 2650, the information averred
that “from sometime in January 1990 up to December 1998 in Barangay
Codon, Municipality of San Andres, Province of Catanduanes,” AAA was raped
by appellant. To the mind of the Court, the recitals in the informations
sufficiently comply with the constitutional requirement that the accused be
informed of the nature and cause of the accusation against him.

Indeed, this Court has ruled that allegations that rapes were committed
“before and until October 15, 1994,”558[36] “sometime in the year 1991 and the
days thereafter,”559[37] and “on or about and sometime in the year 1988”560[38]
constitute sufficient compliance with Rule 110, Section 11 of the 2000 Rules of
Criminal Procedure.

More than that, the Court notes that the matter of particularity of the dates
in the information is being raised for the first time on appeal. The rule is well-
entrenched in this jurisdiction that objections as to matter of form or substance
in the information cannot be made for the first time on appeal. 561[39] Appellant
failed to raise the issue of defective informations before the trial court. He
could have moved to quash the informations or at least for a bill of particulars.
He did not. Clearly, he slumbered on his rights and awakened too late.

Too, appellant did not object to the presentation of the evidence for the
People contending that the offenses were committed “sometime and between
January 1992 up to December 6, 1998” for Criminal Case No. 2632 and
“sometime in January 1990, up to December 1998” in Criminal Case No. 2650.
On the contrary, appellant actively participated in the trial, offering denial and
alibi as his defenses. Simply put, he cannot now be heard to complain that he
was unable to defend himself in view of the vagueness of the recitals in the
informations.

REASONS FOR THE

CONSTITUTIONAL PROVISION ON
THE RIGHT OF THE ACCUSED TO BE
INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION

PEOPLE OF THE PHILIPPINES , G.R. No. 175929,

December 16, 2008

558[36] People v. Bugayong, supra note 30.

559[37] People v. Magbanua, G.R. No. 128888, December 3, 1999, 319 SCRA 719.
560[38] People v. Santos, G.R. Nos. 131103 & 143472, June 29, 2000, 334 SCRA 655.
561[39] People v. Razonable, 386 Phil. 771, 780 (2000).
 329
It is true that in all criminal prosecutions, the accused shall be informed of
the nature and cause of the accusation against him. 562[88] The Constitution uses
the word “shall,” hence, the same is mandatory. A violation of this right
prevents the conviction of the accused with the crime charged in the
Information.

The constitutional guaranty has a three-fold purpose: First. To furnish

the accused with such a description of the charge against him as will enable him
to make his defense; and second, to avail himself of his conviction or
acquittal for protection against a further prosecution for the same cause; and
third, to inform the court of the facts alleged, so that it may decide whether
they are sufficient in law to support a conviction.563[89]

Read:

1. Sales vs. CA, 164 SCRA 717

1-a. P vs. Crisologo, 150 SCRA 653
1-b. P vs. Corral, 157 SCRA 678
1-c. P vs. Resavaga, 159 SCRA 426
1-d. Formilleza vs. SB, 159 SCRA
2. P vs. Labado, 98 SCRA 730
3. Ko Bu Lin vs. CA, 118 SCRA 573
4. P. vs. Cabale, 185 SCRA 140
5. People vs. Regala, April 27, 1982

11. The right to meet witnesses face to face or the right of confrontation

Read:

1. P. vs. Talingdan, Nov. 9, 1990

1-a. P vs. Villaluz, October 20, 1983
2. P vs. Valero, 112 SCRA 661
3. P vs. Bundalian, 117 SCRA 718
4. Talino vs. Sandiganbayan, March 16,1987
5. P vs. Seneris, 99 SCRA 92
6. Ortigas, JR. vs. Lufthansa, 64 SCRA 610
7. Toledo vs. People, 20 SCRA 54
8. P vs. Bardaje, 99 SCRA 388
9. P vs. Santos, 139 SCRA 383
10. Soliman vs. Sandiganbayan, 145 SCRA 640
11. P vs. Lacuna, 87 SCRA 364
12. P vs. Clores, 100 SCRA 227
13. Carredo vs. People, 183 SCRA 273
14. Fulgado vs. CA, 182 SCRA 81

562
563
 330
12. Trial in absentia

Read:

1. Borja vs. Mendoza, 77 SCRA 420

2. Nolasco vs. Enrile, 139 SCRA 502
3. P vs. Salas, 143 SCRA 163; Note the purpose
of this provision)
4. P vs. Judge Prieto, July 21,1978
5. Gimenez vs. Nazareno, 160 SCRA 1
6. Carredo vs. People, 183 SCRA 273

13. Right to secure witnesses and production of evidence.

Read:

1. Cavili vs. Hon. Florendo, 154 SCRA 610

2. Fajardo vs. Garcia, 98 SCRA 514

******************************************************

CHAPTER XV - HABEAS CORPUS

*******************************************************

Read:

1In the matter of the Petition for Habeas Corpus of Ferdinand Marcos,
etc, GR No. 88079, May 18, 1989 and August & October, 1989.

1-a. Harvey vs. Santiago, supra

2. Cruz vs. Juan Ponce Enrile, April 15,1988
3. Abadilla vs. Fidel Ramos, December 1,1987

********************************************************

CHAPTER XVI - THE RIGHT

AGAINST SELF-INCRIMINATION

********************************************************

1. Self-incrimination, 24 SCRA 692

2. Read

1. Chavez vs. CA, 24 SCRA 663

2. Galman vs. Pamaran, 138 SCRA 294, read including the
concurring and dissenting opinions
 331
3. Villaflor vs. Summers, 41 Phil. 62
4. Beltran vs. Samson, 50 Phil. 570
5. Bagadiong vs. Gonzales, 94 SCRA 906
6. BASECO vs. PCGG, supra
7. Isabela Sugar vs. Macadaeg, 98 Phil. 995
8. Fernando vs. Maglanoc, 95 Phil. 431
9. US vs. Tang Teng, 23 Phil. 145
10. P vs. Otadora, 86 Phil. 244
11. P vs. Olvis, 154 SCRA 513
12. P vs. Boholst-Amadore, 152 SCRA 263
13. P vs. Rosas, 148 SCRA 464
14. P vs. Ruallo, 152 SCRA 635
15. P vs. Policarpio, 158 SCRA 85( Compare with the Rosas &
Boholst cases)
16. P vs. Lumayok, 139 SCRA 1
17. Cabal vs. Kapunan, Jr. December 29, 1962

PEOPLE VS. BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG. 25, 2000;
PEOPLE VS. CONTINENTE, G.R. NOS. 100801- 02, 339 SCRA 1, AUG.
25, 2000.

The essence of this right against self-incrimination is testimonial compulsion

or the giving of evidence against oneself through a testimonial act. Hence, an
accused may be compelled to submit to physical examination and have a
substance taken from his body for medical determination as to whether he was
suffering from a disease that was contracted by his victim without violating this
right.

********************************************************

CHAPTER XVII - THE RIGHT AGAINST

INVOLUNTARY SERVITUDE
********************************************************

1. Read:

1. Aclaracion vs. Gatmaitan, 64 SCRA 131

2. Caunca vs. Salazar, supra

********************************************************

CHAPTER XVIII - RIGHT AGAINST

CRUEL AND UNUSUAL PUNISHMENT
********************************************************

a. Is the Death Penalty already abolished by the 1987 Constitution?

 332
Read:

1. P vs. Gavarra, 155 SCRa 327

2. P vs. Masangkay, 155 SCRA 113
3. P vs. Atencio, 156 SCRA 242
4. P vs. Intino, September 26, 1988
5. People vs. Munoz, 170 SCRA 107

b. Is death as a penalty a cruel or unuasual punishment?

No. Death through lethal injection is the most humane way of implementing the
death Penalty (Leo Echegaray vs. Secretary of Justice)

Read:

1. P vs. Estoista, 93 Phil. 647

2. P vs. Villanueva,, 128 SCRA 488
3. Veniegas vs. People, 115 SCRA 79
4. P vs. Camano, 115 SCRA 688

2. On the death penalty whether it was abolished or not

Read:

a. P vs. Idnay, 164 SCRA 358

********************************************************

CHAPTER XIX - RIGHT AGAINST

NON-IMPRISONMENT FOR DEBT

********************************************************

1. Read:

1. Lozano vs. Martinez, 146 SCRA 323

2. Ajeno vs. Incierto, 71 SCRA 166

*********************************************************

CHAPTER XX - THE RIGHT

AGAINST DOUBLE JEOPARDY

********************************************************

1. Requisites present before this right can be invoked

 333
PEOPLE VS. ALMARIO, 355 SCRA 1

There is double jeopardy when there is:

[1] valid indictment;

[2] before a competent court;
[3] after arraignment;
[4] when a valid plea has been entered; and
[5] when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of the accused.

If the dismissal is through the instance of the accused or with his express
consent, there is no double jeopardy and the case could be reinstated. However,
this rule admits of two (2) exceptions:

1) the motion to dismiss is based on insufficiency of evidence; and

2) the motion to dismiss is based on the denial of the accused’s right to speedy
trial.

This is so because the “dismissal” is actually an “acquittal” and therefore, all

the requisites of double jeopardy are complete.

JEFFREY RESO DAYAP vs.

PRETZY-LOU SENDIONG,
GENESA SENDIONG, ELVIE
SY and DEXIE DURAN, G.R. No.
177960, January 29, 2009

The case had its origins in the filing of an Information 564[4] on 29

December 2004 by the Provincial Prosecutor’s Office, Sibulan, Negros Oriental,
charging herein petitioner Jeffrey Reso Dayap with the crime of Reckless
Imprudence resulting to Homicide, Less Serious Physical Injuries, and Damage
to Property. The pertinent portion of the information reads:

That at about 11:55 o’clock in the evening of 28 December

2004 at Brgy. Maslog, Sibulan, Negros Oriental, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, did then and there, willfully, unlawfully and feloniously
drive in a reckless and imprudent manner a 10-wheeler cargo truck
with plate number ULP-955, color blue, fully loaded with sacks of
coconut shell, registered in the name of Ruben Villabeto of Sta.
Agueda Pamplona, Negros Oriental, thereby hitting an automobile,
a Colt Galant with plate number NLD-379 driven by Lou Gene R.
Sendiong who was with two female passengers, namely: Dexie
564
[4]
Records, p. 32.
 334
Duran and Elvie Sy, thus causing the instantaneous death of said
Lou Gene R. Sendiong, less serious physical injuries on the bodies
of Dexie Duran and Elvie Sy and extensive damage to the above-
mentioned Colt Galant which is registered in the name of Cristina
P. Weyer of 115 Dr. V. Locsin St., Dumaguete City, to the damage
of the heirs of the same Lou Gene R. Sendiong and the other two
offended parties above-mentioned.

An act defined and penalized by Article 365 of the Revised Penal Code.

On 10 January 2005, before the Municipal Trial Court (MTC) of Sibulan,

Negros Oriental, petitioner was arraigned and he pleaded not guilty to the
charge.565[5]

On 17 January 2005, respondents Pretzy-Lou P. Sendiong, Genesa

Sendiong and Dexie Duran filed a motion for leave of court to file an amended
information.566[6] They sought to add the allegation of abandonment of the
victims by petitioner, thus: “The driver of the 10-wheeler cargo truck
abandoned the victims, at a time when said [Lou-Gene] R. Sendiong was still
alive inside the car; he was only extracted from the car by the by-standers.”567[7]

On 21 January 2005, however, the Provincial Prosecutor filed an Omnibus

Motion praying that the motion to amend the information be considered
withdrawn.568[8] On 21 January 2003, the MTC granted the withdrawal and the
motion to amend was considered withdrawn.569[9]

Pre-trial and trial of the case proceeded. Respondents testified for the
prosecution. After the prosecution had rested its case, petitioner sought leave to
file a demurrer to evidence which was granted. Petitioner filed his Demurrer to
Evidence570[10] dated 15 April 2005 grounded on the prosecution’s failure to
prove beyond reasonable doubt that he is criminally liable for reckless
imprudence, to which respondents filed a Comment571[11] dated 25 April 2005.

In the Order572[12] dated 16 May 2005, the MTC granted the demurrer and
acquitted petitioner of the crime of reckless imprudence. The MTC found that
the evidence presented by respondents failed to establish the allegations in the
Information. Pertinent portions of the order state:

565
[5]
Rollo, p. 44; See Order dated 10 January 2005.
566
[6]
Records, pp. 34-36.
567
[7]
Id. at 37.
568
[8]
Id. at 41.
569
[9]
Rollo, p. 55.
570
[10]
Records, pp. 80-92.
571
[11]
Id. at 93-94.
572
[12]
Rollo, pp. 72-74.
 335
An examination of the allegations in the information and
comparing the same with the evidence presented by the prosecution
would reveal that the evidence presented has not established said
allegations. The facts and circumstances constituting the
allegations charged have not been proven. It is elementary in the
rules of evidence that a party must prove his own affirmative
allegations.

xxxx

Nowhere in the evidence of the prosecution can this Court

find that it was the accused who committed the crime as charged.
Its witnesses have never identified the accused as the one who has
committed the crime. The prosecution never bothered to establish
if indeed it was the accused who committed the crime or asked
questions which would have proved the elements of the crime. The
prosecution did not even establish if indeed it was the accused who
was driving the truck at the time of the incident. The Court simply
cannot find any evidence which would prove that a crime has been
committed and that the accused is the person responsible for it.
There was no evidence on the allegation of the death of Lou Gene
R. Sendiong as there was no death certificate that was offered in
evidence. The alleged less serious physical injuries on the bodies
of Dexie Duran and Elvie Sy were not also proven as no medical
certificate was presented to state the same nor was a doctor
presented to establish such injuries. The alleged damage to the
[C]olt [G]alant was also not established in any manner as no
witness ever testified on this aspect and no documentary evidence
was also presented to state the damage. The prosecution therefore
failed to establish if indeed it was the accused who was responsible
for the death of Lou Gene R. Sendiong and the injuries to Dexie
Duran and Elvie Sy, including the damage to the Colt Galant. The
mother of the victim testified only on the expenses she incurred and
the shock she and her family have suffered as a result of the
incident. But sad to say, she could not also pinpoint if it was the
accused who committed the crime and be held responsible for it.
This Court could only say that the prosecution has practically
bungled this case from its inception.

xxxx

The defense furthermore argued that on the contrary, the

prosecution’s [evidence] conclusively show that the swerving of
vehicle 1 [the Colt Galant] to the lane of vehicle 2 [the cargo truck]
is the proximate cause of the accident. The court again is inclined
to agree with this argument of the defense. It has looked carefully
into the sketch of the accident as indicated in the police blotter and
can only conclude that the logical explanation of the accident is
 336
that vehicle 1 swerved into the lane of vehicle 2, thus hitting the
latter’s inner fender and tires. Exhibit “7” which is a picture of
vehicle 2 shows the extent of its damage which was the effect of
vehicle 1’s ramming into the rear left portion of vehicle 2 causing
the differential guide of vehicle 2 to be cut, its tires busted and
pulled out together with their axle. The cutting of the differential
guide cause[d] the entire housing connecting the tires to the truck
body to collapse, thus causing vehicle 2 to tilt to its left side and
swerve towards the lane of vehicle 1. It was this accident that
caused the swerving, not of [sic] any negligent act of the accused.

xxxx

Every criminal conviction requires of the prosecution to

prove two things—the fact of the crime, i.e., the presence of all the
elements of the crime for which the accused stands charged, and
the fact that the accused is the perpetrator of the crime. Sad to say,
the prosecution has miserably failed to prove these two things.
When the prosecution fails to discharge its burden of establishing
the guilt of the accused, an accused need not even offer evidence in
his behalf.

xxxx

WHEREFORE, premises considered, the demurrer is granted

and the accused JEFFREY RESO DAYAP is hereby acquitted for
insufficiency of evidence. The bail bond posted for his temporary
liberty is also hereby cancelled and ordered released to the accused
or his duly authorized representative.

SO ORDERED.573[13]

Respondents thereafter filed a petition for certiorari under Rule 65, 574[14]
alleging that the MTC’s dismissal of the case was done without considering the
evidence adduced by the prosecution. Respondents added that the MTC failed
to observe the manner the trial of the case should proceed as provided in Sec.
11, Rule 119 of the Rules of Court as well as failed to rule on the civil liability
of the accused in spite of the evidence presented. The case was raffled to the
Regional Trial Court (RTC) of Negros Oriental, Br. 32.

In the order575[15] dated 23 August 2005, the RTC affirmed the acquittal of
petitioner but ordered the remand of the case to the MTC for further
proceedings on the civil aspect of the case. The RTC ruled that the MTC ’s
recital of every fact in arriving at its conclusions disproved the allegation that it
573
[13]
Id. at 72 and 74.
574
[14]
Records, pp. 3-11.
575
[15]
Rollo, pp. 75-81.
 337
failed to consider the evidence presented by the prosecution. The records also
demonstrated that the MTC conducted the trial of the case in the manner
dictated by Sec. 11, Rule 119 of the Rules of Court, except that the defense no
longer presented its evidence after the MTC gave due course to the accused ’s
demurrer to evidence, the filing of which is allowed under Sec. 23, Rule 119.
The RTC however agreed that the MTC failed to rule on the accused ’s civil
liability, especially since the judgment of acquittal did not include a declaration
that the facts from which the civil liability might arise did not exist. Thus, the
RTC declared that the aspect of civil liability was not passed upon and resolved
to remand the issue to the MTC. The dispositive portion of the decision states:

WHEREFORE, the questioned order of the Municipal Trial

Court of Sibulan on accused’s acquittal is AFFIRMED. The case is
REMANDED to the court of origin or its successor for further
proceedings on the civil aspect of the case. No costs.

SO ORDERED.576[16]

Both parties filed their motions for reconsideration of the RTC order, but
these were denied for lack of merit in the order577[17] dated 12 September 2005.

Respondents then filed a petition for review with the Court of Appeals
under Rule 42, docketed as CA-G.R. SP. No. 01179. The appellate court
subsequently rendered the assailed decision and resolution. The Court of
Appeals ruled that there being no proof of the total value of the properties
damaged, the criminal case falls under the jurisdiction of the RTC and the
proceedings before the MTC are null and void. In so ruling, the appellate court
cited Tulor v. Garcia (correct title of the case is Cuyos v. Garcia)578[18] which
ruled that in complex crimes involving reckless imprudence resulting in
homicide or physical injuries and damage to property, the jurisdiction of the
court to take cognizance of the case is determined by the fine imposable for the
damage to property resulting from the reckless imprudence, not by the
corresponding penalty for the physical injuries charged. It also found support
in Sec. 36 of the Judiciary Reorganization Act of 1980 and the 1991 Rule 8 on
Summary Procedure, which govern the summary procedure in first-level courts
in offenses involving damage to property through criminal negligence where
the imposable fine does not exceed P10,000.00. As there was no proof of the
total value of the property damaged and respondents were claiming the amount
of P1,500,000.00 as civil damages, the case falls within the RTC ’s jurisdiction.
The dispositive portion of the Decision dated 17 August 2006 reads:

WHEREFORE, premises considered, judgment is hereby

rendered by Us REMANDING the case to the Regional Trial Court
576
[16]
Id. at 81.
577
[17]
Id. at 89-90.
578
[18]
No. L-46934, 15 April 1998, .
 338
(RTC), Judicial Region, Branch 32, Negros Oriental for proper
disposition of the merits of the case.

SO ORDERED.579[19]

Petitioner moved for reconsideration of the Court of Appeals decision, 580

[20]
arguing that jurisdiction over the case is determined by the allegations in the
information, and that neither the 1991 Rule on Summary Procedure nor Sec. 36
of the Judiciary Reorganization Act of 1980 can be the basis of the RTC ’s
jurisdiction over the case. However, the Court of Appeals denied the motion
for reconsideration for lack of merit in the Resolution dated 25 April 2007. 581[21]
It reiterated that it is the RTC that has proper jurisdiction considering that the
information alleged a willful, unlawful, felonious killing as well as
abandonment of the victims.

In the present petition for review, petitioner argues that the MTC had
jurisdiction to hear the criminal case for reckless imprudence, owing to the
enactment of Republic Act (R.A.) No. 7691,582[22] which confers jurisdiction to
first-level courts on offenses involving damage to property through criminal
negligence. He asserts that the RTC could not have acquired jurisdiction on the
basis of a legally unfiled and officially withdrawn amended information
alleging abandonment. Respondents are also faulted for challenging the MTC ’s
order acquitting petitioner through a special civil action for certiorari under
Rule 65 in lieu of an ordinary appeal under Rule 42.

The petition has merit. It should be granted.

The first issue is whether the Court of Appeals erred in ruling that
jurisdiction over the offense charged pertained to the RTC.

Both the MTC and the RTC proceeded with the case on the basis of the
Information dated 29 December 2004 charging petitioner only with the complex
crime of reckless imprudence resulting to homicide, less serious physical
injuries and damage to property. The Court of Appeals however declared in its
decision that petitioner should have been charged with the same offense but
aggravated by the circumstance of abandonment of the victims. It appears from
the records however that respondents’ attempt to amend the information by
charging the aggravated offense was unsuccessful as the MTC had approved the
Provincial Prosecutor’s motion to withdraw their motion to amend the
information. The information filed before the trial court had remained
unamended.583[23] Thus, petitioner is deemed to have been charged only with the
579
[19]
Rollo, p. 35.
580
[20]
Id. at 90-94.
581
[21]
Supra note 2.
582
[22]
Entitled “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,” which took effect on 14 April 1994.
583
 339
offense alleged in the original Information without any aggravating
circumstance.

Article 365 of the Revised Penal Code punishes any person who, by
reckless imprudence, commits any act which, had it been intentional, would
constitute a grave felony, with the penalty of arresto mayor in its maximum
period to prision correccional in its medium period. When such reckless
imprudence the use of a motor vehicle, resulting in the death of a person
attended the same article imposes upon the defendant the penalty of prision
correccional in its medium and maximum periods.

The offense with which petitioner was charged is reckless imprudence

resulting in homicide, less serious physical injuries and damage to property, a
complex crime. Where a reckless, imprudent, or negligent act results in two or
more grave or less grave felonies, a complex crime is committed. 584[24] Article
48 of the Revised Penal Code provides that when the single act constitutes two
or more grave or less grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. Since Article 48
speaks of felonies, it is applicable to crimes through negligence in view of the
definition of felonies in Article 3 as “acts or omissions punishable by law ”
committed either by means of deceit (dolo) or fault (culpa).585[25] Thus, the
penalty imposable upon petitioner, were he to be found guilty, is prision
correccional in its medium period (2 years, 4 months and 1 day to 4 years) and
maximum period (4 years, 2 months and 1 day to 6 years).

Applicable as well is the familiar rule that the jurisdiction of the court to
hear and decide a case is conferred by the law in force at the time of the
institution of the action, unless such statute provides for a retroactive
application thereof.586[26] When this case was filed on 29 December 2004,
Section 32(2) of Batas Pambansa Bilang 129 had already been amended by
R.A. No. 7691. R.A. No. 7691 extended the jurisdiction of the first-level courts
over criminal cases to include all offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of fine, and regardless of
other imposable accessory or other penalties including those for civil liability.
It explicitly states “that in offenses involving damage to property through
criminal negligence, they shall have exclusive original jurisdiction
thereof.” It follows that criminal cases for reckless
imprudence punishable with prision correccional in its medium and maximum
periods should fall within the jurisdiction of the MTC and not the RTC.
Clearly, therefore, jurisdiction to hear and try the same pertained to the MTC
and the RTC did not have original jurisdiction over the criminal case. 587[27]
[23]
See notes 8 and 9.
584
[24]
People v. de los Santos, 407 Phil. 724, 744 (2001, citing Reodica v. Court of Appeals, 292 SCRA 87, 102 (1998).
585
[25]
People v. de los Santos, 407 Phil. 724 (2001).
586
[26]
Venancio Figueroa y Cervantes v. People of the Philippines, G.R. No. 147406, 14 July 2008, citing Alarilla v.
Sandiganbayan, 393 Phil. 143, 155 (2000) and Escovar v. Justice Garchitorena, 466 Phil. 625, 635 (2004).
587
 340
Consequently, the MTC of Sibulan, Negros Oriental had properly taken
cognizance of the case and the proceedings before it were valid and legal.

As the records show, the MTC granted petitioner’s demurrer to evidence

and acquitted him of the offense on the ground of insufficiency of evidence.
The demurrer to evidence in criminal cases, such as the one at bar, is “filed after
the prosecution had rested its case,” and when the same is granted, it calls “for
an appreciation of the evidence adduced by the prosecution and its sufficiency
to warrant conviction beyond reasonable doubt, resulting in a dismissal of the
case on the merits, tantamount to an acquittal of the accused.”588[28] Such
dismissal of a criminal case by the grant of demurrer to evidence may not
be appealed, for to do so would be to place the accused in double
jeopardy.589[29] But while the dismissal order consequent to a demurrer to
evidence is not subject to appeal, the same is still reviewable but only by
certiorari under Rule 65 of the Rules of Court. Thus, in such case, the factual
findings of the trial court are conclusive upon the reviewing court, and the only
legal basis to reverse and set aside the order of dismissal upon demurrer to
evidence is by a clear showing that the trial court, in acquitting the accused,
committed grave abuse of discretion amounting to lack or excess of jurisdiction
or a denial of due process, thus rendering the assailed judgment void.590[30]

Accordingly, respondents filed before the RTC the petition for certiorari
alleging that the MTC gravely abused its discretion in dismissing the case and
failing to consider the evidence of the prosecution in resolving the same, and in
allegedly failing to follow the proper procedure as mandated by the Rules of
Court. The RTC correctly ruled that the MTC did not abuse its discretion in
dismissing the criminal complaint. The MTC’s conclusions were based on facts
diligently recited in the order thereby disproving that the MTC failed to
consider the evidence presented by the prosecution. The records also show that
the MTC correctly followed the procedure set forth in the Rules of Court.

The second issue is whether the Court of Appeals erred in ordering the
remand of the case of the matter of civil liability for the reception of evidence.

We disagree with the Court of Appeals on directing the remand of the case
to the RTC for further proceedings on the civil aspect, as well as with the RTC
in directing a similar remand to the MTC.

The acquittal of the accused does not automatically preclude a judgment

against him on the civil aspect of the case. The extinction of the penal action
does not carry with it the extinction of the civil liability where: (a) the acquittal
is based on reasonable doubt as only preponderance of evidence is required; (b)
the court declares that the liability of the accused is only civil; and (c) the civil
[27]
Venancio Figueroa y Cervantes v. People of the Philippines, G.R. No. 147406, 14 July 2008.
588
[28]
People v. Sandiganbayan, 488 Phil. 293, 310 (2004), citing People v. City of Silay, No. L-43790, 9 December 1976, 74
SCRA 247.
589
[29]
Id.
590
[30]
People v. Uy, G.R. No. 158157, 30 September 2005, 471 SCRA 668.
 341
liability of the accused does not arise from or is not based upon the crime of
which the accused is acquitted. 591[31] However, the civil action based on delict
may be deemed extinguished if there is a finding on the final judgment in the
criminal action that the act or omission from which the civil liability may arise
did not exist592[32] or where the accused did not commit the acts or omission
imputed to him.593[33]

Thus, if demurrer is granted and the accused is acquitted by the court, the
accused has the right to adduce evidence on the civil aspect of the case unless
the court also declares that the act or omission from which the civil liability
may arise did not exist.594[34] This is because when the accused files a demurrer
to evidence, he has not yet adduced evidence both on the criminal and civil
aspects of the case. The only evidence on record is the evidence for the
prosecution. What the trial court should do is issue an order or partial judgment
granting the demurrer to evidence and acquitting the accused, and set the case
for continuation of trial for the accused to adduce evidence on the civil aspect
of the case and for the private complainant to adduce evidence by way of
rebuttal. Thereafter, the court shall render judgment on the civil aspect of the
case.595[35]

A scrutiny of the MTC’s decision supports the conclusion that the

acquittal was based on the findings that the act or omission from which the civil
liability may arise did not exist and that petitioner did not commit the acts or
omission imputed to him; hence, petitioner’s civil liability has been
extinguished by his acquittal. It should be noted that the MTC categorically
stated that it cannot find any evidence which would prove that a crime had been
committed and that accused was the person responsible for it. It added that the
prosecution failed to establish that it was petitioner who committed the crime as
charged since its witnesses never identified petitioner as the one who was
driving the cargo truck at the time of the incident. Furthermore, the MTC found
that the proximate cause of the accident is the damage to the rear portion of the
truck caused by the swerving of the Colt Galant into the rear left portion of the
cargo truck and not the reckless driving of the truck by petitioner, clearly
establishing that petitioner is not guilty of reckless imprudence. Consequently,
there is no more need to remand the case to the trial court for proceedings on
the civil aspect of the case, since petitioner’s acquittal has extinguished his civil
liability.

******************
It must be pointed out, however, that in PEOPLE VS. TAMPAL, 244
SCRA 202 and PEOPLE VS. LEVISTE, 255 SCRA 238, the SC reversed the

591
[31]
Hun Hyung Park v. Eung Won Choi, G.R. No. 165496, 12 February 2007, 515 SCRA 502, 513.
592
[32]
RULES OF COURT, Rule 111, Sec. 2, last par.
593
[33]
Salazar v. People, 458 Phil. 504 (2003).
594
[34]
Id. at 607.
595
[35]
Id. at 518-519.
 342
dismissal of the criminal case by the trial court based on “speedy trial ” since
the same was not predicated “on the clear right of the accused to speedy trial. ”
It is only when there is a clear violation of the accused ’s right to speedy trial
that the dismissal results in double jeopardy.

3. Double jeopardy, 102 SCRA 44 and 12 SCRA 561

4. When the act is punished by both a law and an ordinance:

PEOPLE VS. RELOVA, 148 SCRA 292

If the accused was charged of “theft of electricity” based on the City

Ordinance of Batangas and not based on the Revised Penal Code and later on
the case is dismissed by the judge due to the fact that the crime has prescribed,
the government can no longer charge the accused of the same crime under the
Revised Penal Code since double jeopardy has set in.
Read:

1. P vs. Duero, 104 SCRA 379

2. CUDIA VS. CA, 284 SCRA 173
3. CUISON VS. CA, 289 SCRA 159
2. P vs. Jara, 144 SCRA 516
3. P vs. Abano, 145 SCRA 555
4. P vs. Tolentino, 145 SCRA 597
5. P vs. Salig, 133 SCRA 59
6. P vs. Cruz, 133 SCRA 426
7. P vs. Prudente,, 133 SCRA 651
8 P vs. Trinidad, 162 SCRA 714, when the presumption of regularity
does7, 1966
2. P vs. City Court,154 SCRA 175
3. Galman vs. Pamaran, 144 SCRA 43
4. P vs. Molero, 144 SCRA 397
5. P vs. Quibate, 131 SCRA 81
6. P vs. Obania, June 29,1968
7. Dionaldo vs. Dacuycuy, 108 SCRA 736
8. P vs. Judge Hernando, 108 SCRA 121
9. Esmena vs. Judge Pogoy, 102 SCRA 861
10. Mazo vs. Mun. Court, 113 SCRA 217
11. Andres vs. Cacdac, 113 SCRA 217
12. Buerano vs. CA, 115 SCRA 82
13. P vs. Militante, 117 SCRA 910
14. P vs. Fuentebella, 100 SCRA 672
15. Lazaro vs. P, 112 SCRA 430
16. Flores vs. Enrile, 115 SCRA 236
17. Bernarte vs. Sec. ,116 SCRA 43
18. Ko Bu Lin vs. CA, 118 SCRA 573
19. P vs. Duran, 1075 SCRA 979
20. P vs. Cuevo, 104 SCRA 312
21. Jimenez vs. Military Commission, 102 SCRA 39
 343
22. P vs. Liwanag, 73 SCRA 473
23. P vs. Araula, January 30, 1982
24. P vs. Baladjay, March 30, 1982
25. P vs. City Court of Silay, 74 SCRA 247
28. P vs. Pilpa, 79 SCRA 81
29. P vs. Gloria, December 29, 1977
30. P vs. Galano, 75 SCRA 193
31. Tacas vs. Cariasco, 72 SCRA 527
32. P vs. Ledesma, 73 SCRA 77
33. P vs. Consulta, 70 SCRA 277
34. P vs. Inting, 70 SCRA 289
35. De Guzman vs. Escalona, 97 SCRA 619
36. P vs. Pablo, 98 SCRA 289
37. Cruz vs. Enrile, 160 SCRA 700
38. Tangan vs. P, 155 SCRA 435
39. P vs. Quezada, 160 SCRA 516
40. Canizano vs. P, 159 SCRA 599
41. Bustamante vs. Maceren, 48 SCRA 144

There is no double jeopardy in this case:

PEOPLE VS. MOLERO

G.R No. L-67842, September 24, 1986

FACTS:

1. Molero was charged for having raped his daughter. The original
complaint was dated March 22, 1977, the complainant charged Molero of
having raped her on the "13th day of February 1976".

2. Molero was arraigned and pleaded "Not Guilty";

3. During the trial, the complainant testified that she was raped by her
father on February 5, 1976 and not February 13, 1976 as alleged in the
complaint;

4. The Fiscal filed a motion for leave to amend the complaint. The
motion was granted but was subsequently reconsidered. The lower court
in its order dismissed the original complaint, but ordered the Fiscal to
cause the filing of a new complaint charging the proper offense of rape
committed on or before February 5, 1976;

5. A new complaint was therefore filed dated March 30, 1978

6. Molero claims that the new complaint places him in double jeopardy.

HELD:
 344

There is no double jeopardy.

a. Dismissal of the first case contemplated by the rule against double

jeopardy presupposes a definite and unconditional dismissal which
terminates the case.(Jaca vs. Blanco, 86 Phil. 452; People vs. Manlapas,
5 SCRA 883; People vs. Mogol, 131 SCRA 296) And "for dismissal to
be a bar under the jeopardy clause of the Constitution, it must have
the effect of acquittal.(People vs. Agoncillo, 40 SCRA 579);

b. It is quite clear that the order of the trial court dismissal the original
complaint was without prejudice to the filing of a new complaint and/or
information charging Molero with the proper offense. The said dismissal
did not therefore amount to an acquittal.

c. In fact there was no need for the trial court to have adopted such a
cumbersome procedure. It could have merely ordered an amendment of
the complaint. Sec. 12, Rule 119 of the Revised Rules of Court applies
when there is a mistake in charging the proper offense, but not when an
honest error of a few days is sought to be corrected and the change does
not affect the rights of the accused.

d. The precise time of the commission of the crime is not an essential

element of the offense of rape. The amendment of the complaint changing
the date of the commission of the crime of rape from February 13, 1976 to
February 5, 1976 , a difference of 8 days was only a matter of form under
the facts of this case and did not prejudice the rights of the accused.

e. The reliance of the accused on the case of People vs. Opemia, 98

Phil. 698 is not well-taken. In the said case the proposed amendment
was the changing of the date of the commission of the crime from
June 18, 1952 to July 1947, or a difference of 5 years. The S.C. held
that the amendment that would change the date of the commission of
the offense from 1947 to 1952 is certainly not a matter of form.

f. The dismissal of the first complaint did not amount to the appellant's
acquittal. In effect, the order of dismissal does not constitute a proper
basis for a claim of double jeopardy. (People vs. Bocar, 138 SCRA 166)

5. May the government appeal a judgment of

acquittal or for the increase of the penalty
imposed? No.

PEOPLE VS. HON. VELASCO, G.R. NO. 127444,

340 SCRA 207, SEPT. 13, 2000.
 345
Double Jeopardy. Evolution of doctrine. Appeal by the Government from
verdicts of acquittal.

As mandated by the Constitution, statutes and cognate jurisprudence, an

acquittal is final and unappealable on the ground of double jeopardy, whether it
happens at the trial court of a judgment of acquittal brought before the Supreme
Court on certiorari cannot be had unless there is a finding of mistrial, as in
Galman vs. Sandiganbayan.

6. May the appellate court of the Supreme

Court increase the pernalty imposed by the
trial court on appeal by the accused? Yes.

PEOPLE VS. DOMINGO, G.R. No. 184343, March 2,

2009

Appellant Jesus Domingo assails the Decision596[1] of the Court of

Appeals dated 30 April 2008 in CA-G.R. CR No. 30511, modifying the
Decision597[2] dated 13 November 2006 of Branch 13 of the Regional Trial
Court (RTC) of Malolos, Bulacan. The Court of Appeals found appellant
guilty beyond reasonable doubt of murder in Criminal Cases No. 1496-M-
2000 and No. 1497-M-2000, attempted murder in Criminal Cases No.
1498-M-2000 and No. 1501-M-2000, frustrated murder in Criminal Case
No. 1500-M-2000, and frustrated homicide in Criminal Case No. 1499-M-
2000.

On 7 September 2000, appellant, with the assistance of counsel, was

arraigned and he entered separate pleas of “Not Guilty” to the crimes
charged. Thereafter, pre-trial conference was held, and trial ensued
accordingly.598[4]

The accused was convicted of Homicide, instead of Murder. On

Appeal to the Court of Appeals, the CA held that the crime proven by the
prosecution is Murder and therefore increased the penalty from Homicide
to Murder.

Is increase in the penalty valid?

Yes because it was the accused who interposed the appeal making
the court review the evidence. And it it finds the evidence sufficient for
conviction of the crime of Murder, it could increase the penalty.

Read:

[1]
596 Penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Edgardo P. Cruz and Apolinario
D. Bruselas, Jr., concurring; rollo, pp. 2-25.
597[2] Penned by Presiding Judge Andres B. Soriano; CA rollo, pp. 11-23.
598[4] Id. at 13.
 346
1. Central Bank of the Philippines vs. CA, GR No. 41859, March 8,
1989
1-a. P vs. Montemayor, January 30, 1969, 26 SCRA 687
2. P vs. Ruiz,81 SCRA 455
3. US vs. Yam Tung Way, 21 Phil. 67
4. P vs. Ang ho Kio, 95 Phil. 475

6. The "Supervening Fact Doctrine."

Read:

1. 76 SCRA 469
2. P vs. Tarok, 73 Phil. 260
3. P vs. Villasis, 46 O.G. 268
4. Melo vs. People, 85 Phil. 766
5. P vs. Buling, 107 Phil. 712
5-a. P vs. Adil, 76 SCRA 462
5-b. P. vs. Tac-an, 182 SCRA 601
6. P vs. City Court of Manila, 121 SCRA 637
7. Read also Sec. 7, Rule 117, 1985 Rules on Criminal Procedure

*******************************************************

CHAPTER XXI
RIGHT AGAINST EX-POST FACTO LAW,
BILL OF ATTAINER, ETC.

*******************************************************
Read:

1. Nunez vs. Sandiganbayan, 111 SCRA 433

2-LACSON VS. SANDIGANBAYAN, January 20, 1999

PANFILO M. LACSON VS. THE EXECUTIVE

SECRETARY, THE SANDIGANBAYAN, ET AL.
ROMEO ACOP & FRANCISCO ZUBIA, JR.,
Petitioners-Intervenors
G.R. No. 128096, January 20, 1999

The petitioner seeks to stop the Sandiganbayan from trying the

multiple murder case against him and 26 other police officers for the
death of 11 Kuratong Baleleng members in the early morning of May 18,
1995 at Commonwealth Avenue, Quezon City. The police officers claimed
that it was a shoot-out between them and the Kuratong Baleleng Members
while SPO2 Eduardo de los Reyes claimed it was a summary execution or
rub-out.
 347
The preliminary investigation conducted by the Deputy Ombudsman
for Military Affairs resulted in the dismissal of the cases after finding that
the incident was “a legitimate police operation.” However, the Review
Board led by Deputy Ombudsman Francisco Villa resulted in the filing of
multiple murder cases against the petitioner and his companion where he
was indicted as a principal.

Upon motion by the petitioner and his co-police officers with leave
from the Sandiganbayan, a Motion for Reconsideration was filed with the
Office of the Ombudsman who AMENDED the 11 information’s on
March 1, 1996 charging the petitioner , ROMEO ACOP and
FRANCISCO ZUBIA, JR., as mere accessories.

On March 5-6,1996, the accused questioned the jurisdiction of the

Sandiganbayan over the 11 criminal cases since under Republic Act No.
7975, particularly Section 2, paragraphs [a] and [c], the said court has
jurisdiction only if one or more of the principal accused has a rank of
Brigadier General (Chief Superintendent) or higher and since the highest
PNP officer charged as a principal accused is merely Chief Inspector, the
Regional Trial Court of Quezon City has jurisdiction to try and decide the
same.

On May 8, 1996, the Sandiganbayan issued a Resolution transferring

the case to the RTC of Quezon City which has original and exclusive
jurisdiction over the cases under RA 7975. On May 17, 1996, the Office
of the Special Prosecutor moved for a Reconsideration and insisted that
the cases should remain with the Sandiganbayan which was opposed by
the petitioner and his co-accused.

While the Motions for Reconsideration were pending before the

Sandiganbayan, Congress passed into law Republic Act No. 8249 which
was approved by the President on February 5, 1997 entitled “AN ACT
FURTHER DEFINING THE JURISDICTION OF THE
SANDIGANBAYAN, AMENDING FOR THIS PURPOSE PD 1606, AS
AMENDED, PROVIDING FUNDS THEREFOR” which deleted the
word “PRINCIPAL” in Section 2, paragraphs [a] and [c] of RA 7975
thereby giving jurisdiction to the Sandiganbayan criminal cases involving
police generals like the petitioners even though they are not charged as
principals but merely accessories or accomplices. The new law further
provides that it shall be applicable to all cases which are pending in court
before the passage of the same provided trial has not begun at the time of
its approval.

On March 5, 1997, the Sandiganbayan issued its Resolution denying

the Motion for Reconsideration of the Office of the Special Prosecutor
and ruled that it “stands pat in its Resolution dated May 8, 1996” ordering
the transfer of the 11 criminal cases to the RTC of Quezon City. On the
same day, however, the Sandiganbayan issued an ADDENDUM to its
 348
March 5, 1997 Resolution where it that with the passage of RA 8249, “the
court admitted the amended information’s in these cases and by the
unanimous vote of 4 with 1 neither concurring nor dissenting, retained
jurisdiction to try and decide the cases”.

The petitioner questioned the said Resolution of the Sandiganbayan

to the Supreme Court on the following grounds:

1. their right to due process of law and equal protection of the law was
violated as a result of the application of the new law by which restored to
the Sandiganbayan jurisdiction over their cases especially so that the
Sandiganbayan has foot-dragged for 9 months the resolution of the
pending incident involving the transfer of these cases to the RTC of
Quezon City and waited for the passage of the law to overtake such
resolution and thereby rendering their vested rights under the old
Sandiganbayan law moot;

2. the retroactive application of the new law violates their constitutional

right against ex-post facto law;

3. the title of the law is misleading in that it contains the aforesaid innocuous
provisions in Sections 4 and 7 which actually expands rather than defines
the old Sandiganbayan law thereby violating the one title one subject
requirement of Section 26 [1] Article VI of the Constitution.

The petitioners-intervenors claimed that while the law (Sections 4

and 7) innocuously appears to have merely expanded the jurisdiction of
the Sandiganbayan, it is in fact a class legislation and an ex-post facto law
statute intended specifically to apply to all the accused in the Kuratong
Baleleng case pending before the Sandiganbayan. Finally, if their case
will be tried by the Sandiganbayan, they will be deprived of their “two-
tiered” appeal to the Sandiganbayan which they acquire under RA 7975
before recourse to the Supreme Court could be made.

Held:

1. The contention that the law violates petitioner’s right to due process and
equal protection of the law is too shallow to deserve merit. It is an
established precept in constitutional law that the guaranty of the equal
protection of the laws is not violated by a legislation based on reasonable
classification. The classification is reasonable and not arbitrary when
there is concurrence of four elements, namely:

a. it must rest on real and substantial distinctions;

b. it must be germane to the purposes of the law;
c. must not be limited to existing conditions only; and
d. must apply equally to all members of the same class-
 349
all of which are present in this case.

The classification between those pending cases involving concerned

public officials whose trial has not yet commenced and whose cases could
have been affected by the amendments of the Sandiganbayan jurisdiction
under RA 8249, as against those whose cases where trial has already
started as of the approval of the law rests on substantial distinction that
makes real differences. In the 1st instance, evidence against them were not
yet presented, whereas in the latter the parties have already submitted
their respective proofs, examined witnesses and presented documents.
Since it is within the power of Congress to define the jurisdiction of the
courts, it can be reasonably anticipated that an alteration of that
jurisdiction necessarily affect pending cases, which is why it has to
provide for a remedy in the form of a transitory provision. The transitory
provision does not only cover cases which are in the Sandiganbayan but
also in “any court”. It just happened that the Kuratong Baleleng cases are
one of those affected by the law. Moreover, those cases where trial has
already begun are not affected by the transitory provision under Section 7
of the new law (RA 8249).

2. The petitioners’ argument that the retroactive application of the new law
to the Kuratong Baleleng cases constitutes an ex post facto law for they
are deprived of their right to due process as they can no longer avail of the
two-tiered appeal which they had allegedly acquired under RA 7975 is
without merit.

In order that a law is an ex post facto law, the same must be one—

a. which makes an act done criminal before the passing of the law
and which was innocent when committed, and punishes such
action;
b. which aggravates a crime or makes it greater than when it was
committed;
c. which changes the punishment and inflicts a greater punishment
than the law annexed to the crime when it was committed;
d. which alters the legal rules of evidence and receives less or
different testimony than the law required a the time of the
commission of the offense in order to convict the defendant;
e. every law which, in relation to the offense or its consequences,
alters the situation of a person to his disadvantage;
f. that which assumes to regulate civil rights and remedies but in
effect imposes a penalty or deprivation of a right which when
done was lawful;
g. deprives a person accused of a crime of some lawful protection
to which he has become entitled, such as the protection of a
former conviction or acquittal, or a proclamation of amnesty
(KAY VILLEGAS KAMI, 35 SCRA 429; MEJIA VS.
 350
PAMARAN, 160 SCRA 457; TAN VS. BARRIOS, 190 SCRA
686; PEOPLE VS. SANDIGANBAYAN, 211 SCRA 241).

Ex post facto law prohibits the retrospectivity of penal laws. RA

8249 is not a penal law. It is a substantive law on jurisdiction which is not
penal in character.

The other contention that their right to a two-tiered appeal which

they acquired under RA 7975 has been diluted by the enactment of RA
8249 is incorrect. The same contention had been rejected by the court
several times in the cases of RODRIGUEZ VS. SANDIGANBAYAN, 205
Phil. 567; ALVIAR VS. SANDIGANBAYAN, 137 SCRA 63; NUNEZ
VS. SANDIGANBAYAN, 111 SCRA 433; DE GUZMAN VS. PEOPLE,
December 15, 1982 considering that the right to appeal is not a natural
right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in
the prohibition against ex post facto laws. Moreover, the new law did not
alter the rules of evidence or the mode of trial.

3. The contention that the new Sandiganbayan law violates the one title-one
subject provision of the Constitution is without merit. The petitioners
claim that the new does not define the jurisdiction of the Sandiganbayan
but expands the same. But even assuming that that is true, the expansion
of the jurisdiction, does not have to be expressly stated in the title of the
law because such is the necessary consequence of the amendments. The
requirement that every bill must only have one subject expressed in the
title is satisfied if the title is comprehensive enough, as in this case, to
include subjects related to the general purpose which the statute seeks to
achieve. The Congress, in employing the word “define” in the title of the
law, acted within its power since Section 2, Article VIII of the
Constitution itself empowers the legislative body to “define, prescribe and
apportion the jurisdiction of various courts.

(NOTE: Though the Supreme Court rejected all the above arguments
raised by the petitioner and the intervenors who are against the trial of
their cases with the Sandiganbayan and prefer to have their cases be tried
and decided by the RTC of Quezon City, they got what they want in the
end because it was held that the 11 criminal information’s failed to alleged
that they committed the crimes in relation to their public office which is a
jurisdictional requirement in order that the same be tried by the
Sandiganbayan.

Finally, sometime in May, 1999, the Quezon City RTC to whom the
said cases were raffled DISMISSED the 11 murder cases as a result of the
retraction made by the eyewitnesses. The same was revived by the DOJ in
April, 2001. The same was returned to the QC RTC to determine if the 2-
year provisional rule under the 2000 Rules on Criminal Procedure is
applicable)
 351

2.a. Kay Villegas Kami, 35 SCRA 429

3. Sevilleja vs. COMELEC, 107 SCRA 141
4. P vs. Ferrer, 46 & 56 SCRA
5. Tan vs. Barrios, October 18, 1990

CHAPTER XXII-CITIZENSHIP

1. Effect of naturalization in another country

Read:

a. Ramon Labo, Jr. vs. Comelec, July 3, 1992

a.-1 RAMON LABO JR. VS. COMELEC, GR No. 86564, August 1,
1989

RAMON LABO, JR. VS. THE COMMISSION ON ELECTIONS AND

LUIS LARDIZABAL, G.R. NO. 86564, August 1, 1989

Citizenship; renunciation of; who takes the place of a disqualified winner in an

election; res judicata

Unanimous en banc decision

(NOTE: This is also important in your Remedial Law)

Cruz, J.

Facts:

1. The petitioner was proclaimed mayor-elect of the City of Baguio on

January 20, 1988;

2. On January 26, 1988, the private respondent filed a quo warranto case
against the petitioner but no filing fee was paid;

3. On February 10, 1988 or 21 days after the petitioner was proclaimed,

the private respondent paid the filing fee of P300.00;

4. Since the filing fee was paid beyond the reglementary period, the
petitioner claims that the petition was late because the payment of the
filing fee is essential to the timeliness of an appeal, citing Manchester vs.
CA, 149 SCRA 562;

5. The private respondent claimed he filed the petition on time because

when he first filed the same, it was treated by the COMELEC as a pre-
 352
proclamation controversy which needs no filing fee. When the
COMELEC treated it as a quo warranto case on February 8, 1988, he
immediately paid the filing fee on said date. Hence, the filing fee was
paid on time.

Issues:

1. Was the petition for quo warranto filed on time?

2. Since the case was merely for determination on whether or not the
petition was filed on time or not, may the Supreme Court determine
whether petitioner Ramon Labor, Jr. is qualified for the office of the City
Mayor of Baguio or not?

3. Since the petitioner won in the election and turned out to be not
qualified for said position, who shall take his place as the City Mayor?

Held:

1. The petition was filed on time since the filing fee was paid immediately
when the COMELEC treated the same as a quo warranto and not a pre-
proclamation controversy. However, even assuming that the filing fee was
paid late, the same was not traceable to the private respondent's fault or
neglect. What is important is that the filing fee was paid.

2. Normally, the case should end here as the sole issue raised by the
petitioner is the timeliness of the quo warranto proceedings against him.
HOWEVER, AS HIS CITIZENSHIP IS THE SUBJECT MATTER OF
THE PROCEEDING, AND CONSIDERING THE NECESSITY FOR AN
EARLY RESOLUTION OF THAT MORE IMPORTANT QUESTION
CLEARLY AND URGENTLY AFFECTING THE PUBLIC INTEREST,
WE SHALL DIRECTLY ADDRESS IT NOW IN THIS SAME ACTION
AGAINST HIM. (DEL CASTILLO VS. JAYMALIN, 112 SCRA 629;
ALGER ELECTRIC VS. CA, 135 SCRA 37; BEAUTIFONT VS. CA,
January 29, 1988; SOTTO VS. SAMSON, 5 SCRA 733; REPUBLIC VS.
PAREDES, 108 PHIL. 57; LIANGA LUMBER CO. VS. LIANGA
TIMBER CO. , 76 SCRA 197; ERICO VS. HEIRS OF CHIGAS, 98
SCRA 575; FRANCISCO VS. CITY OF DAVAO, 12 SCRA 628;
VALENCIA VS. MABILANGAN, 105 PHIL. 162; FERNANDEZ VS.
GARCIA, 92 PHIL. 592; LI SHIU LIAT VS. REPUBLIC, 21 SCRA
1039; SAMAL VS. CA, 99 PHIL. 30; US VS. GIMINEZ, 34 PHIL. 74;
TEJONES VS. GIRONELLA, 159 SCRA 100 and LIANGA BAY
LOGGING VS. CA, 157 SCRA 357).

In addition thereto, since the petitioner claims that the respondent

COMELEC has prejudged the case against him because it adopted the
private respondent's COMMENT which repeatedly asserted that he is not
a Filipino citizen, with more reason that the Supreme Court shall now
 353
decide the case with finality instead of returning the same to the
COMELEC.

3. There are two administrative decisions involving the citizenship of the

petitioner. On May 12, 1982, the COMELEC held that he is a Filipino
citizen while on September 13, 1988, the Commission on Immigration
and Deportation held that he is not a citizen of the Philippines.

In a statement by the Australian consul in the Philippines, it was found

out that RAMON LABO, JR. was granted Australian citizenship by
Sydney on July 28, 1976.

However, Labo claims that the petition to disqualify him because of his
citizenship is already barred by res judicata because of the earlier ruling of
the COMELEC that he is a Filipino citizen. It must be pointed out that res
judicata does not apply to questions involving citizenship (SORIA VS.
COMMISSIONER, 37 SCRA 213; LEE VS. COMMISSIONER, 42
SCRA 561; SIA REYES VS. DEPORTATION BOARD, 122 SCRA 478).

Labo also claims that his naturalization in Australia was annulled

since it was found out that his marriage to an Australian was bigamous.
This is without merit since even assuming it to be true, the same did not
automatically vest him Philippine Citizenship which could be reacquired
only by: a) a direct act of Congress; b) by naturalization; and c) by
repatriation. Since none of these is present to show that he was able to
reacquire Philippine citizenship, Labo is not considered a Filipino citizen.
As such, he is not even qualified to be a voter under the Constitution,
much less as a candidate for the position of Mayor in the City of Baguio.

Labo claims further that the "futile" technicality should not frustrate
the will of the electorate in Baguio City who elected him by a "resonant
and thunderous majority. Again, this is without basis because to be more
accurate, he won by just over 2,100 votes. But even assuming further that
he was elected unanimously, the same voters of Baguio City could not
change the requirements of the Constitution and the Local Government
Code. The electorate had no power to permit a foreigner owing his total
allegiance to the Queen of Australia or at the least a stateless person to
preside over them as the City Mayor of Baguio. Only citizens of the
Philippines have that privilege. The probability that many of those who
voted for him may have done so in the belief that he was qualified only
strengthens the conclusion that the results of the elections cannot nullify
the qualifications for the office now held by him.

3. Who shall take the place of the petitioner then as the City Mayor of
Baguio? Is the private respondent entitled to it? HE CANNOT FOR THE
SIMPLE REASON THAT HE OBTAINED ONLY THE SECOND
HIGHEST NUMBER OF VOTES IN THE ELECTION AND
 354
THEREFORE, HE WAS OBVIOUSLY NOT THE CHOICE OF THE
PEOPLE OF BAGUIO CITY.

It is true that in SANTOS vs. COMELEC, 137 SCRA 740 , the

Supreme Court held that in cases like this, the second placer shall take the
place of the disqualified candidate since the latter was considered as non-
candidate and all that he received are considered stray votes. The second
placer, in effect, won by default. Said decision was supported by 8
members of the Court, three dissented, two reserved their votes and one
on leave. Re-examining said decision, the same shall be REVERSED in
favor of the earlier case of Geronimo vs. COMELEC, 136 SCRA 435,
which is the more logical and democratic rule first announced in the 1912
case of Topacio vs. Paredes, 23 Phil. 238, and was supported by ten (10)
members of the Court without any dissent. The Vice Mayor of the City of
Baguio shall be entitled to become the City Mayor instead of the private
respondent.

b. Frivaldo vs. COMELEC, June 23, 1989

c. Board of Commissioners vs. De la Rosa and William Gatchalian, May
31, 1991
d. Aznar vs. COMELEC, 185 SCRA 703

1-a. Effect of naturalization of wife and minor children

Read:

1. Burca vs. Republic,51 SCRA 248

2. Reyes vs. Deportation Board,May 30,1983

2. Effect on the citizenship of an alien woman married to a Filipino citizen

Read:

1. Moy Ya Lim vs. Comm. on Immigration, 41 SCRA 292

3. Effect on the citizenship of a Filipino woman on her marriage to an alien.

Read:

1. Rep. vs. Tandayag, 117 SCRA 637

4. Procedure for repatriation

Read:

1. P vs. Avengoza, 119 SCRA 1

5. Cancellation of certificate of naturalization

 355

Read:

1. Schneider vs. Rusk, 377 US 163

2. Republic vs. Cokeng, 23 SCRA 559
3. Republic vs. Cokeng, 34 SCRA 668
4. Chan Teck Lao vs. Republic, 55 SCRA 1
5. Rep. vs. Guy, 115 SCRA 244

*********************************